May 8, 2008

Age of Consent Laws

I've come perilously close to being drawn in to a very lengthy discussion about what the proper age of consent for sex should be. In fact, my opinion on the matter is quite clear and quite immovable -- the legal age of consent for sex is totally and completely arbitrary. No one suddenly experiences a transformational dawn of maturity on their eighteenth birthday which equips them to handle the bundle of emotions that go along with consensual sex.

An intense sexual experience -- particularly the act of intercourse -- can come with some heavy emotional baggage. Now, it's certainly true that some people can be quite nonchalant about sex other than it being a pleasurable activity (more for some than others); others find it a deep and powerful experience with lasting effects; others think the pleasure is a terrible problem with what should be a purely reproductive function of the human body. For most, it seems to be somewhere in the middle of those extremes.

Some young people probably do have enough maturity to deal with sex; some people over the age of eighteen do not. The psychological factors that go into that sort of thing are astonishingly complex and functionally impossible for an objective third party to evaluate. That's why the only possible way to handle the question of how old should we require someone to be before we agree that they can consent to sex of necessity must be totally and completely arbitrary. Maybe as a moral matter we can create constructs to handle particular situations, but as a legal matter it's simply too big of a mess to ever be anything but an arbitrary distinction that often will have little relation to case-by-case realities.

Let's define a term real fast -- "adolescent." As I will use the term here, this is a human being whose body has entered the phase of puberty, when sexual organs become active and the body becomes sexually mature, but during a time that the physical growth of the body is still significantly incomplete. Secondary sexual characteristics manifest in adolescence -- different clumps of unpleasant hair, the growth of breasts in the girls, spontaneous erections in the boys, and so on. Obviously, each individual leaves childhood and enters adolescence, and later leaves adolescence and enters adulthood, at different points of their biological ages.

Those who suggest that the age-of-consent laws should be revised tend to criticize the fact that such laws criminalize the behavior of adults who engage in consensual sex with adolescents. The existence of such laws bothers me not at all, despite the obviously blurry lines between childhood, adolescence, and adulthood. Indeed, my comfort is in part a function of the blurriness of the line. Given that the line between "sex between consenting adults" and "sex between a naive youngster and a predatory lecher" is not subject to any sort of contextual analysis or flexible but rational variance, you've just got to pick an age. Above it, sex is OK; below it, more legal restrictions.

Eighteen years is as good an arbitrary age as any other reasonably young age one might come up with. Here's why I think that -- the age must of necessity be above the age at which one's body attains sexual maturity, because the harm that the law seeks to avoid is mental, emotional. One needs some time to come to an understanding of what one's body is capable of doing, and that takes practical experience, not theoretical knowledge, of what sexual maturity feels like. What does it feel like to be sexually aroused? You can read about it in a book all you like, but until you experience it, the descriptions don't make any difference and aren't particularly meaningful. So the law needs to set the line at some point late in adolescence. Eighteen years is an age by which we can be reasonably certain that most people will have entered puberty and picked up a few years' worth of experience with their newfound sexual maturity and awareness.

This is also why I think that the law needs to tolerate a certain amount of kids fooling around with each other, as uncomfortable as that might be. This is one of the ways that teenagers acquire the experience that is needed to handle a sexual relationship. Adolesence is when most of us acquired that experience, with high school boyfriends and girlfriends, in limited-scope dating situations. Today, sitting on top of approaching forty years of experience, the idea of mom and dad dropping me off on a date and then picking me up a few hours later sounds like a really sucky date. But that's part of what it is. As the teenager grows up, parents can grant the kid more and more liberty as appropriate to the individual circumstance.

This is something that only parents can do -- the state cannot do it because by its very nature, it is individualized on a case-by-case basis. This is the process of "maturation," and the role of parental figures in it is of obvious importance. The law, with its heavy hand constrained by the necessities of uniformity and clarity, cannot make those kinds of distinctions. Which is why there must be an utterly unambiguous bright-line rule, one which if it errs, errs on the side of maturity. Eighteen is as good a time as any; that there may be some people on the young side of that bright line who can handle the sexual experience and know what it is that they are consenting to do is no reason to change the law.


Barb said...

I'm for maintaining the law --but I I don't expect to see 17 year old boys jailed for pre-marital sex with 15 year olds. I do want to see men avoid "jailbait" --the younger girls for the sake of those girls.

We need a return in our culture to more chaperonage, supervision, and promotion of waiting until marriage.

Two virgins who marry won't have any STD's EVER --if they remain faithful.

Now we are promoting oral and anal sex even to women as something men should expect as normal variants of sexual experience.

Yet, the latest epidemics are throat cancer from oral sex performed many years earlier --via the VERY common HP Virus (over 90 % in college senior girls)--and a flesh-eating bacteria that is plaguing the San Francisco gay community

Why don't we again really emphasize to youth that condoms not only can't protect from a broken heart --but can't protect us from all the ST Diseases either. Only abstinence until faithful marriage can do that.

there still ARE men who have only had sex with their wives. I have one of those. It's the best arrangement --as God intended.

Burt Likko said...

I'm for maintaining the law --but I I don't expect to see 17 year old boys jailed for pre-marital sex with 15 year olds.

As a general rule, I agree with you on that point, Barb. That's why I think it's the job of a judge to look at each situation on a case-by-case basis and it's important for the law to grant the judge enough latitude to work justice in each case. It bothers me that in our society's zeal to prosecute crimes, we hamstring judges who appear to be "soft on crime" without bothering to eduate ourselves as to why a judge may have made a particular decision in a particular case.