Two questions apropos this:
1) Assume that we have a sex-neutral statutory rape law, which bars
all sex by anyone with children under age 16. Say that a 15-year-old girl
believes a 15-year-old boy has actually raped her. If she (or a parent)
complains to the police, then she risks that if the boy tells a persuasive
story that this was consensual, *she* will end up being prosecuted for
statutorily raping him (as well as vice versa). Is this likely to be a
serious problem? If it is, what should be our reaction to it?
2) Here's a guess, based on intuition rather than any factual
evidence: I suspect that most states that don't have problems with
gender-neutral statutory rape laws avoid the problems by simply having a
policy of not prosecuting women or girls who have sex with boys, at least
unless there's some aggravating circumstance (e.g., 35-year-old
schoolteacher, 13-year-old schoolboy). If the policy is well enough
understood, to the point of being taken for granted, 15-year-old girls might
not be that worried about complaining about 15-year-old boys (or you can
change that to 17 in states, such as California, where the age of consent is
18). But surely if facially sex-based statutory rape laws are
unconstitutional, so are these sex-based enforcement policies, no?
Eugene
> -----Original Message-----
> From: Lynne Henderson [mailto:[EMAIL PROTECTED]
> Sent: Tuesday, July 15, 2003 3:48 PM
> To: [EMAIL PROTECTED]
> Subject: Re: Statutory rape laws
>
>
> Statutory rape comes to the attention of authorities usually
> in two ways: the parents "find out" or the girl reports it,
> often because it is a "real rape" but may not be provable as
> such. That was the problem in *Michael M.* Michael slugged
> Sharon several times in the face, leaving bruises, but Calif
> a tthe time had a resistance requirement and it wasn't enough
> force to overcome that requirement or even to "vitiate
> consent". She said no, but that wasn't enough. *Pace*
> Justice Blackmun's turning the earlier "making out" into
> "foreplay", and the slugging into "intimacies", under
> current California law, this would be a rape. *Pace* Mae
> Kuykendahl, my students traditionally have been up in arms
> asking why it wasn't charged as a rape (and I tell them about
> the then-existing law) and many are unwilling to find
> "consent" below the age of about 15 (and developmental psych
> and new research on adolescents suggests that one cannot
> presume "consent i nthe way we adults understand it until
> around 15-16) Justice Stevens' dissent notes that states with
> gender-neutral statutes did not seem to have a problem
> enforcingthier laws and then goes into a riff about punishing
> the more "culpable" party as a way to deal with the problem
> of prosecuting both partners. For articles examining the
> difference in "consent" and consequences to girls as opposed
> to boys, see Michelle Oberman, *Turning girls into WOmen . .
> .* 85 J. Crim. L. & Criminology 15 (1994) and Symposium on
> Statutory Rape in DePaul L Rev. 2001 (?) ( I don't have the
> cite handy, I apologize) But see Fran Olsen's critique in
> Texas L. review. Fran's article is very useful for having the
> students examine all the different ways in which the calif
> law discriminates on the basis of gender in all directions. (
> I Interestingly, current Federal law gives prosecutors
> incentive grants to prosecute statutory rape and requires
> pregnant teenagers to identify the father of the child in
> order to be eligible for a TANF grant. Mandatory reporting
> laws alos require medicalpersonnel to report sexual activity,
> but these laws tend to be ignored in cases of teenagers even
> if sexual abuse has occurred) Back to law: The so-called
> liberal California Supreme Court found that the risk of
> teenage pregnancy was a compelling state interest in the
> case, with Justice
> Mosk dissenting. The majority opinions in *Michael M* ar
> eall a little
> weird, but perhaps the underlying facts pushed the Court to
> uphold the statute in part. Justice Rehnquist said
> inermediate scrutiny didn't apply because men and women ar
> enot "similarly situated" with respect to pregnancy, then
> analysed the case under both rational basis and intermediate
> prongs; if pregancy is the frame for comparison, then even
> given cases after *Michael M*, rational basis would still
> apply. It is unlikely to get back to the Supreme Court,
> however, since only a few states havenot switched to
> gender-neutral "statutory rape" laws. Many statutes now do
> distinguish on the basis of age difference--the Federal laws
> came from concerns about adult male exploitaiton of young
> womenh/teenage girls (and it is a problem, especially in some ethnic
> communities) . Other statutes make distinctions in
> punishment based on the age differences--the Model Penal Code
> does this. Others, like California's, dont make a facial
> distinction, but as we learned in the "Spur Posse" case, DAs
> hardly ever prosecute statutory rape (that is changing given
> the federal monetary incentives, however) The struggle I see
> coming is over age-of-consent, with a horrible subtext
> involving arguments that pedophilia and/or sexual abuse of
> the young is not harmful, etc. Best Lynne
> ----- Original Message -----
> From: "Volokh, Eugene" <[EMAIL PROTECTED]>
> To: <[EMAIL PROTECTED]>
> Sent: Tuesday, July 15, 2003 2:23 PM
> Subject: Statutory rape laws
>
>
> > I appreciate Bryan's arguments in favor of gender
> neutrality
> > here, but does he have any thoughts on the prosecution
> problem? If a
> > state law prohibits, say, all sex with under-16-year-olds (with no
> > Romeo/Juliet provision), how can this ever be enforced when two
> > 15-year-olds are having sex? Presumably both will take the
> Fifth, and
> > the likely witnesses --
> often
> > parents of one of the children -- won't want to testify or
> even call
> > the police, given that their own child would be put at risk of
> > prosecution. What to do? I suppose it might be possible to
> have some
> > other rule, such
> as
> > prosecuting the older one but not the younger one, even if the
> > difference
> is
> > a few months. Would that be the suggestion, and would it be
> > effective?
> >
> > More broadly, assume that the danger to girls --
> the physical
> danger
> > of pregnancy, the less imbalanced physical danger of STDs (as I
> > understand it, STDs are more easily spread from men to women rather
> > than vice versa, but I may be wrong), and the empirical sense that
> > girls are more likely to be reluctant participants than
> boys, and thus
> > more likely to be
> emotionally
> > hurt by relationships gone bad (as relationships often do) -- does
> > appear greater than the danger to boys. If that's so, then
> would it
> > be fair to prosecute the 15-year-old girl (and often not the
> > 15-year-old boy, for the reasons I mention above, at least assuming
> > the sex-neutral tiebreaker,
> such
> > as age, cuts in favor of prosecuting the girl) under a
> statute that's
> aimed
> > at protecting the girls themselves?
> >
> > I should say that my sympathies are with equal treatment
> > without regard to sex here; and I should also say that I'm not wild
> > about
> statutory
> > rape laws with fixed age tests (as opposed to
> > difference-between-the-ages tests). Still, the objections
> I mention
> > above give me pause, so I was wondering if Bryan could dispel them.
> >
> > Eugene
> >
> > > -----Original Message-----
> > > From: Bryan Wildenthal [mailto:[EMAIL PROTECTED]
> > > Sent: Tuesday, July 15, 2003 1:10 PM
> > > To: [EMAIL PROTECTED]
> > > Subject: Re: Lawrence, Limon and SDP Review Stratification
> > >
> > >
> > > Attempting to respond only to the first paragraph of James
> > > Blumstein's very thoughtful posting (see below -- I don't
> have time
> > > to respond to the rest, which also raises very valuable points):
> > >
> > > Indeed, I started wondering about Michael M v Sup Ct after I
> > >
>
