Re: Statutory rape laws
I know this is well-worn ground, but I'd be grateful for some elaboration, from Ann or others, on what distinguishes those stereotypes upon which the state may not rely from those generalizations upon which states and courts may -- indeed, must -- rely in order to carry out any inquiry into the closeness of fit between means and ends. And is the critical constitutional line thought to run between stereotype (bad) and generality (okay) or between stereotypes like this (bad) and stereotypes of some other sort (okay)? I'm not disagreeing with Ann's claim below, just wondering whether the line is something more than we know the difference when we see it. Mitch At 05:01 PM 7/15/2003 -0500, you wrote: 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. I don't see how, after U.S. v. Virginia and the recent Nevada v. Hibbs, a court can rely on a stereotype like this, no matter how accurate it is as a generality. Ann
Re: Statutory rape laws
I've been puzzling over the effect, if any, of Lawrence on stat rape in California, too. Assume the man is 40 and the woman 17, quite sexually active, experienced, and inviting, and the sex (oral copulation only) occurs in the privacy of his home. She doesn't complain but her therapist under mandatory reporting, in another state, blows the whistle. He gets prosecuted not for stat rape but oral cop. In California, the age of consent is 18. Is that arbitrary? Or is it sufficiently rational as a matter of legislative convenience, i.e., the line has to be drawn somewhere and the legislature was justified in drawing it there. Should the test be not an artificial age test, but instead be some sort of functional test, i.e. harm to the younger party, subject to proof. Note the 'victim' is sometimes a boy, as in a male student, female teacher relationship. Does Lawrence cast doubt on the right of a state to prescribe legislation on the basis of the morality of a presumed majority, or is this governmental bowing to bias and stereotypes held by the presumed majority, a la Palmore v Sidotti, where this was condemned in the area of race? Are laws regulating sexual morality artifacts of religion, such that they can be challenged as an establishment of religion, as someone raised here not too long ago. Suppose the age of consent to engage in sex varies among states, or the age to marry w/o parental consent? Aren't different cultures entitled to allow young marriage? See pre-pubescent marriage among the Roma, i.e. Gypsies, where marriage is arranged early, not to be consummated until physical maturity, allegedly). Or some other cultures say, originating in India. Which of our cultures controls? (I know, ours.) Why is our solution to issues of sexuality, criminalizing consensual behavior more rational than others? Or is it right simply because it's ours. Suppose there is no demonstrable harm? Does a law forbidding consensual sex at age seventeen pass the rational basis test because someone MAY be harmed? We have lots of prophylactic law based on what may happen, such as not discharging firearms in cities, or shooting at people, or speeding. The California based stat rape case of Michael M. v. SC (Sonoma) was decided on the basis of no EP violation because women can become pregnant while men cannot. Suppose the sex is other than normal sexual relations, thus lacking actual risk of pregnancy, only potential and hypothetical, i.e. if sexual relations had occurred. Example: she voluntarily orally copulates him, this continues over time, and she never complains. The Court in Lawrence carefully notes it is not a case of underage sex. Robert Sheridan [EMAIL PROTECTED] [Original Message] From: Volokh, Eugene [EMAIL PROTECTED] To: [EMAIL PROTECTED] Date: 7/15/2003 2:28:12 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
Re: Statutory rape laws
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
