Posted by Eugene Volokh:
U.S. Commission on Civil Rights, Justice Ginsburg, and the Age of Consent:
Several days ago, I ran across an allegation -- one which has been
repeated in quite a few places -- that a 1977 U.S. Commission on Civil
Rights report, which was co-drafted by then-Professor Ruth Bader
Ginsburg suggested that the age of consent be lowered to 12. That
struck me as a likely myth or an out-of-context quote, so I decided to
look into it.
To my surprise, the allegation seems largely accurate, though in the
limited context of the federal territorial and maritime jurisdiction.
(The report was referring only to federal law, and most sex crimes are
covered by state law rather than federal law.) The report was Sex Bias
in the U.S. Code, and it was prepared for the Commission by former
ACLU lawyer Brenda Feigen-Fasteau, then-professor Ruth Bader Ginsburg,
and 15 Columbia Law School students working under their supervision;
it went through federal statutes, identified various sex-based
classifications and terms, and suggested ways to eliminate them. In
the process, here's what it said on p. 95 about the relevant statue,
18 U.S.C. � 2032:
Under 18 U.S.C. ��1153 and 2032, it is a crime for a person to have
carnal knowledge of a female not his wife who has not reached 16
years of agee. "Rape" is defined [as limited to female victims]. .
. . The "statutory rape" offense is defined in these sections in
much the same way: the victim must be a female and the offender a
male . . . .
These provisions clearly fail to comply with the equal rights
principle. They fail to recognize that women of all ages are not
the only targets of sexual assault; men and boys can also be the
victims of rape. In the case of statutory rape, the immaturity and
vul[n]erability of young people of both sexes could be protected
through appropriately drawn, sex-neutral proscriptions. The Model
Penal Code and S. 1400 �1633 require a substantial age differental
between the offender and victim, thus declaring criminal only those
situations in which overbearing or coercion may play a part.
So far, nothing shocking -- a call for sex-neutral statutes, and for
making the statutory rape rules turn on the difference in age between
the parties. One can argue against this on various grounds, and it's
not clear why the age differential vs. clear cutoff issue is relevant
to the "Sex Bias in the U.S. Code" issue. Still, the proposals seem
reasonable. S. 1400 �1633, incidentally, provided (at least in the
version that I could find), that "sexual abuse of a minor"
(essentially statutory rape) be limited to victims who are under 16,
and who are "at least five years younger than" the defendant. Again,
this could be criticized, since it would allow 17-year-olds to have
sex with 12-year-olds, but at least it's not a general lowering of the
age of consent to 12.
But here's the suggestion on p. 102:
18 U.S.C. �2032 -- Eliminate the phrase "carnal knowledge of any
female, not his wife who has not attained the age of sixteen years"
and substitute a Federal, sex-neutral definition of the offense
patterned after S. 1400 �1633: A person is guilty of an offense if
he engages in a sexual act with another person, not his spouse, and
(1) compels the other person to participate: (A) by force or (B) by
threatening or placing the other person in fear that any person
will imminently be subjected to death, serious bodily injury, or
kidnapping; (2) has substatnailly impared the other person's power
to appraise or control the conduct by administering or employing a
drug or intoxicant without the knowledge or against the will of
such other person, or by other means; or (3) the other person is,
in fact, less than 12 years old.
Under this proposal, it seems to me that sex with 12-year-olds and
older would be legalized in the federal territorial and maritime
jurisdiction, regardless of the age of the other party. This wouldn't
be a "Romeo-and-Juliet" law aimed at preventing prosecution of young
lovers -- it would equally be a dirty-old-man-and-Juliet law. And
while there are plausible debates about what the age of consent should
be, it seems to me that simply lowering it to 12 would be quite a
striking and unjustified change.
Now this all happened nearly 30 years ago; but I'm still curious about
what was happening here. Were many in the late 1970s feminist movement
really in favor of lowering the age of consent to 12? Did Justice
Ginsburg hold this view? Or was this something that was added by an
overzealous student and not caught by her (of course she had the
responsibility of checking everything produced by the people she was
supervising or even by her coauthor, but mistakes happen)? Might it
even have been an inadvertent drafting error? (As to 18 U.S.C. �1153
-- which applied to Indian country -- the other section mentioned
alongside �2032 on p. 95, the report on p. 103 simply suggests that it
be changed to the S. 1400, �1633 version.)
In any event, when I investigate improbable-sounding accusations and
find them to be bunk, I like to post about that; so it seems to me
that when they prove to be true, it's worth noting them. Again, I'm
not sure what this says about Justice Ginsburg's past views, or for
that matter her present views; but I'd love to hear any perspective
that readers who are familiar with the late 1970s debate might be able
to provide (preferably with details and citations).
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