Posted by Eugene Volokh:
Infantilizing 20-Year-Olds:
An Oklahoma legislator is proposing [1]this bill (see [2]here for a
news story); the new provision is italicized:
Section 1111. A. Rape is an act of sexual intercourse involving
vaginal or anal penetration accomplished with a male or female who
is not the spouse of the perpetrator [the spousal rape ban is in
another section -EV] . . . under any of the following
circumstances: 1. Where the victim is under sixteen (16) years of
age; 2. Where the victim is incapable through mental illness or any
other unsoundness of mind, whether temporary or permanent, of
giving legal consent; 3. Where force or violence is used or
threatened, accompanied by apparent power of execution to the
victim or to another person; 4. Where the victim is intoxicated by
a narcotic or anesthetic agent, administered by or with the privity
of the accused as a means of forcing the victim to submit; 5. Where
the victim is at the time unconscious of the nature of the act and
this fact is known to the accused; 6. Where the victim submits to
sexual intercourse under the [fraudulently induced] belief that the
person committing the act is a spouse, and this belief is induced
by artifice, pretense, or concealment practiced by the accused or
by the accused in collusion with the spouse with intent to induce
that belief . . . 7. Where the victim is under the legal custody or
supervision of a state agency, a federal agency, a county, a
municipality or a political subdivision and engages in sexual
intercourse with a state, federal, county, municipal or political
subdivision employee or an employee of a contractor of the state,
the federal government, a county, a municipality or a political
subdivision that exercises authority over the victim; or 8. Where
the victim is at least sixteen (16) years of age and is less than
eighteen (18) years of age and is a student, or under the legal
custody or supervision of any public or private elementary or
secondary school, junior high or high school, or public vocational
school, and engages in sexual intercourse with a person who is
eighteen (18) years of age or older and is an employee of the same
school system; and 9. Where the victim is an undergraduate student
under twenty-one (21) years of age attending any college or
university in this state or the victim is attending any public or
private secondary school in this state, regardless of the person's
age, and engages in sexual intercourse with a person who is an
employee of the same college, university or school system unless
the two persons were legally married prior to enrollment or
employment in such college, university or school. . . . .
So it would be a crime, for instance, for (1) a university professor,
(2) a staff member, (3) a student (undergraduate or graduate) who
works as a research assistant or a teaching assistant, (4) a student
who works in a university cafeteria to have sex with a 20-year-old
undergraduate man or a woman. These are 20-year-olds, folks, in a
state where it's usually perfectly legal to have sex with a
16-year-old.
Now perhaps this was just a drafting error, though a huge drafting
error. Maybe they're just looking to go after those awful lecherous
professors who prey on students. That is to say "prey" on adult,
20-year-old students, who are legally grownups, and who are
constitutionally entitled to make their own decisions about whom to
sleep with (see Lawrence v. Texas). These are not 14-year-olds. They
aren't mental patients. They aren't drugged or unconscious. They are
old enough to fight in a war. They are old enough to marry without
anyone's permission. And the state of Oklahoma is seeking to "protect"
themselves against their own decisions about whom to have sex with.
Now I should say that I think schools can quite properly prohibit
professors from sleeping with their current students, on threat of
administrative sanction or even dismissal. If I were an administrator,
I wouldn't trust a professor's evaluations of his own lovers. Such
restrictions are legitimate for employers to impose on their
employees, though there are also costs when the restrictions are too
broad. (I wouldn't, for instance, prohibit all sex that might possibly
indirectly cause a conflict of interest -- for instance on the theory
that this student, while not in your class, may one day take a class
from you -- or that might in some situations involve coercion. That, I
think, is too much of a burden on consenting adult employees' and
students' behavior, even if it does help avoid some problems for the
university and for some other students.)
But all this is in any event no reason to make sex between professors
and students criminal. And it certainly is no reason to criminalize
sex between professors and students who are in completely different
classes and even completely different departments. Twenty-year-olds
are not foolish children. If they're fools, they're fools like the
rest of us can be fools, and are entitled to the costs and benefits of
their own folly.
(No, I've never had an affair with a student, whether or not my own,
while I was a professor, even before I was married.)
References
1. http://www.lsb.state.ok.us/2005-06SB/SB650_int.rtf
2. http://www.oudaily.com/vnews/display.v/ART/2005/02/08/4208926ccd517
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