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The use of the word “rape” in the term “statutory rape” has bad effects.

Should the word “rape” in the American term “statutory rape” be replaced with some other word?

I would argue in favour of replacement that it diminishes the perceived magnitude of the crime of rape in the ordinary sense (“rape rape” to use Whoopi Goldberg’s term, or “legitimate rape” to use Todd Akin’s) to use the same word for those cases of statutory rape where consent was present, or arguably present. It also makes calm discussion and clear thinking about the complex issue of consent much harder.

Incidentally, I think that most of the criticism that both Goldberg and Akin got for using the terms they did was unjust. They both deserved criticism for making public pronouncements about subjects of which they knew next to nothing. Goldberg apparently did not know that Polanski’s crime was indeed a particularly vile coercive rape of a minor. I suspect that she assumed that talented people from her own social milieu did not do that sort of thing. Akin had the silly belief that women’s bodies have the power to prevent conception by an act of will. However I do not think for a moment that when he said “legitimate” rape he meant that there were circumstances where rape should be permitted, and I do not think that those howling for his head really believe he meant that either. He just used the wrong word. He should have said “coercive rape” – but the very fact that people need to hunt around for a term that gets that across, and get into trouble when they get it wrong, is why I think the term of law should be renamed.

I am not arguing against the existence of such laws, although no doubt many of them could do with adjustment. I am told the term does not exist in English or Scottish law but it has certainly soaked into British public discourse, muddying the waters.

36 comments to The use of the word “rape” in the term “statutory rape” has bad effects.

  • In the Polanski case, Polanski and the prosecution did a plea bargain in which he pled guilty to statutory rape (and a relatively trivial punishment) in return for the more conventional rape charges against him being dropped. It became clear that the judge was going to throw this plea bargain out, and it was at that point that Polanski fled the United States. However, because “statutory rape” was what he had pled guilty to, the phrase kept getting brought up whenever the case was subsequently mentioned, and this is probably why Goldberg assumed what she did before saying what she did.

    I am not sure though that the name of the offence is the problem though. Had Polanski pled guilty to an offence called “Having sexual relations with a minor”, the same confusion may have been present. If the name of the offence had been different, would the prosecution have been more likely to have insisted on an offence that did include the word “rape”? I don’t know.

    I think in truth that the problem is not about words, but about the nature of the offence. A 40 year old man having sex with a 12 year old girl is a heinous offence, and the question of consent really isn’t relevant. Calling the offence “statutory rape” is a reflection of this, and the word rape is appropriate regardless of consent. On the other hand, if an 18 year old has consensual sex with a 17 year old who looks like she is 18 and who has assured him that she is 18, the offence should be a very minor one indeed if indeed it should be an offence at all. “Rape” is clearly not an appropriate word.

    So there may be something to be said for “statutory rape” and “sexual relations with a minor” being two different offenses. Where do you draw the line though? Perhaps it should be for a jury to decide.

    Except that in the Polanski case, and in most American criminal cases there is no jury, and what charge you are guilty of and what your punishment is going to be is decided via plea bargains – a state of affairs I find extremely problematic. This is what failed in the Polanski case, I think, rather more than the name of the offence.

    (And again on the Polanski case, Luc Besson managed to demonstrate exactly how one should respond when asked questions like this. Essentially “I know Roman and I like him and he is a friend, but I do not know what happened in this case and it is the job of the court to find out what did”. Even with less embellishment, “I do not know what happened and I therefore have no opinion” is a fairly sensible thing to say).

    But I am rambling a little here.

  • Robert

    Rape is sex with someone without their consent, or who is unable to give consent. “Statutory rape” is sex with someone under the age of consent. Presumably the justification for the age of consent is that those below it are deemed incapable of giving consent. The use of the word “rape” term “statutory rape” is therefore ok.

    However, as Michael points out above there is a world of difference between a 15 years and 11 months old person having consensual sex with their 16 year old boy/girl friend. Isn’t the problem therefore with the unsubtlety of the current laws on consent? Shouldn’t they take account of age differences, as well as absolute age. Something like: two fifteen year olds ok, a forty year old and a sixteen year old not ok. I don’t know how such a law would be written exactly, but the general idea seems a bit more sensible than the current laws.

  • Alisa

    Robert and Michael: there’s a huge difference between real consent and a legal one. I am not saying that there should not be such a thing as legal consent set at an arbitrary age (because it has to be arbitrary – there’s no other way). But the consent in ‘rape is sex with someone without their consent) is of the real variety, not the legal one. A minor is still a person, and if a minor gives his/her consent to something, it is very much real to him/her. The fact that it does not qualify to rise to the level of legal consent does not make it any less real. Language does matter. If we strip minors of the recognition (not a legal one, but a personal one) of their ability to give consent, we also strip them of the ability to withhold it – and thus strip them of their humanity. For this reason I think that the term ‘statutory rape’ is demeaning to minors, and something like ‘sex with a minor’ is far more respectful, while no less useful or efficient from a legal point of view. ‘Statutory rape’ seems to me like a semantic shortcut in legalese, and as is the case in many other areas, shortcuts should be always viewed with suspicion, if not outright avoided.

  • Dom

    Robert, statutory rape is sex between an adult and a child below a certain age. Two children having sex is not statutory rape. Also, there must be a certain difference in ages between the two. A 17 year old having sex with a 15 year old is not statutory rape, even thought one is an adult.

  • Julie near Chicago

    I think Natalie has written an excellent posting. And I think that the two comments so far–by Michael Jennings and Robert–are very good.

    I would like to muddy the waters of this thorny dilemma (mixing as many metaphors as possible) further, by pointing out that there is fourteen and there is fourteen, just as there is twelve and there is twelve…and so on.

    Generally speaking, we in the Anglosphere are viscerally discomfited at the very idea of “children + sex.” And the fact that our culture as gone so far in the direction of labelling anyone younger than fifty as still a child (only slight hyperbole there, as far as I can see!) does not help any.

    What is a child? We were all pleased to read this past week about the young lady of 11 in Wyoming, if I remember correctly, who, home alone and terrified, made short work of an intruder using the family rifle (or shotgun, whichever). There are many cases of successful armed defense by “children” even younger, of course. And in an earlier era, children were taught young how to protect themselves…. In my Inbox yesterday there was one of those sets of photos that go around sometimes. This one was poking fun at what I’ll call “stupid parenting.” Several of the photos were obviously Photoshopped, but one was of a father standing behind his little miss, showing her how to hold her pistol properly preparatory to firing it. She had eye and ear protection and all, and he looked to me as if he knew what he was about. The only problem was, the kid looked to be about five. The caption implied that commencing shooting lessons for such a young child was nuts.

    Why?

    We teach younger kids than that to swim. (And so we should!)

    It’s not how old people are chronologically. It’s how developed they are physically and also in terms of intelligence, and worldly knowledge, and self-control.

    But persons under the age of 16 are “too young” to babysit, or to work on the family farm, or….

    Or, of course, to have sex. Except, of course, under coercion.

    Mind you, my personal stomach also rejects the idea, so well illustrated in the movies, that 60-year-old “mature men” have any business marrying women under the age of, say, 40. What can they possibly have in common!

    Actually, the attraction might be comfort and companionship and deep friendship, or a love that’s almost familial rather than having much of sex about it at all. It could also be that both of them are “up for each other,” if you see what I mean. (Or, natch, a straight business deal.) But the point is, such arrangements strike a lot of us as, well, peculiar….

    It’s that there’s a tendency to be viscerally upset at what’s perceived as a large age difference.

    And ultra-viscerally-upset at the idea that CHILDREN (never mind how “childness” is defined) might engage (or be engaged) in any conceivably sexual activity at all.

    So I guess my point is only that when we think about or talk about these issues, we ought to try to stay hyper-aware of when it’s our brains talking…and when it’s our tums.

    NOTE: Since I commenced writing this latest addition to the totality of Great World Literature, I see that Alisa has added a comment, which is part of my point but which I certainly didn’t articulate.

    EXTREMELY well said, Alisa! :>)))

  • Laird

    I also agree with Alisa. The word “rape” is so fraught with emotional baggage that it is wrong to use it in a circumstance where consent is not present merely because the law make the presumption of incapacity. A different word is definitely in order.

    Also (although I profess no expertise in this area of the law), I believe that in some states it’s not “statutory rape” unless there is at least a 4 year age difference between the two. So in the 18- and 17-year old scenario it would be still a crime, but a lesser one. Whether it should be a crime is worthy of discussion, but in any event I do think that the distinction over age differential makes sense.

  • Regional

    In Boganstan it used to be called Carnal Knowledge.

  • Alsadius

    Dom: That’s only true in some countries. There’s plenty of horror stories out there about two people six months apart on the wrong side of an imaginary line being prosecuted for it. I live in a country where +- 2 years is okay, though, so at least there’s some sanity there.

  • Alisa

    There’s an anecdote I feel compelled to tell whenever the subject of legal age comes up – it is not related to sex, but nobody is perfect. I once saw a TV interview with the son of the former Israeli PM Yitzhak Shamir. As some here may know, Shamir was a Mossad operative during some period of his life, and so when he was stationed in Europe for the first time, the family had to relocate there. The son was about 11 at the time, IIRC, and had serious trouble adjusting to the new environment. The problem became so serious, that the family found itself facing the question whether to forgo what was sure to be a significant stepping stone in Shamir’s career and go back home. The decision they eventually made is that the boy would move back home on his own. The young Yair lived on his own in the family apartment in TA, with occasional supervision and as-needed assistance from friends and relatives for a full year, before the family returned home again.

    To put this in context, this was Israel in the 50s, where in kibbutzim babies were separated from their parents to live in “children’s homes” (on premises, with daily visitations from parents) until adulthood. Many of those kids (now people around and past their mid-lives) still struggle with serious emotional problems. OTOH, I don’t know Shamir’s son personally, but he seems to have turned out a fairly well-rounded individual. I guess my point in all of this is that all children – just like all adults – are different, and arrive at different aspects of maturity at different points in their lives. It is the role of parents to be involved and observant enough to be able to tell when the child is ready for this or that (whatever this or that may be). Societal (and legal) coming of age threshold should only serve to protect society (with children being an obvious part of that society, although not yet its full-fledged members) from individuals who are not mature enough to play nice with others.

  • Alisa

    Smited. That’s OK, time to get off the soapbox anyway.

  • PersonFromPorlock

    How about a whole new charge, ‘Taking advantage of inexperience’? It would cover wicked men and blushing virgins, but also give an exception where ‘the thirteen-year old’ was one of those thirteen-year olds. AND provide protection for first-time buyers of used cars and so on….

    OK, probably too vague to be do-able: but if society is more decent when the knowledgeable don’t exploit the ignorant, certainly worth thinking about doing.

  • G Wilson

    Akin did not address coercion at all – the context of is comments is being hidden here to make him look less foolish.

    His meaning was that, if a woman becomes pregnant, she had not been “legitimately” raped – so no abortion should be allowed. It’s a pseudo-scientific pretext for religionist denial of liberty to women.

  • Deep Lurker

    Dom and Alsadius: There are even a few horror stories out there where two young people had sex, with both being under the age of consent, and both being prosecuted for committing “statutory rape” against each other.

    And while I haven’t heard of any horror stories along this line, I wouldn’t be at all suprised to learn that in certain jurisdictions the adult victim of a forcible rape by an under-the-age-of-consent minor would be technically guilty of statutory rape.

  • Julie near Chicago

    Alisa, thanks very much for the story about Yair Shamir. Heavens to Betsy, living all ALONE (except, of course, surrounded by people to call at need) at the tender age of 11…why the child was still in diapers. CHILD ABUSE !!!!

    How many stories are there of the boys who took off on tramp steamers and whatnot at the age of 12. Clearly much too young to blow their noses without help!

    Thanks also for the mention of the former kibbutz children who as adults are said to have some fairly serious emotional problems. I’ve heard that they often have difficulties “bonding” (I assume, forming close friendships and love-relationships with others?)…and have wondered how much truth there is in it. –It sounds highly likely to me, but I try to be a little bit careful about reports that fit in neatly with my own biases but for which credible sources are not given. So your remarks definitely go in the “supporting evidence” pile!

    :>))

  • Julie near Chicago

    PfP…I don’t know, I’m very very leery of trying to fix moral problems with legal strictures. [I know, you can argue that laws against assault, battery, robbery, and murder do exactly that. But even though "enforcing morality" is often advanced as the (utilitarian or "pragmatic") reason for such laws, one can also argue for them on the grounds of Pure Justice.]

    But it seems to me that “taking advantage of ignorance or inexperience” comes under the heading of “sharp practice”–practice that is unethical, but that is simply too ill-defined to serve as the reason for establishing a legal doctrine. “Caveat emptor” and all that…because (among other things) if such actions are criminal, the judge and jury must be prepared to start mind-reading in order to make a reasonable judgment as to whether the alleged perp acted (a) with knowledge of the alleged victim’s vulnerability–insufficient capacity to make informed choices, and (b) with intent to defraud, deceive, or coerce.

    As a matter of fact, isn’t it the case that in the U.S. the Prosecution does not have to prove motive in criminal cases? And in cases where A kills B, aren’t there minute distinctions among murder, manslaughter, reckless endangerment, yadayada, that are dependent on the showing of intent and that are to be taken into account in sentencing? Or have I been reading too many legal thrillers?

    Anyway, it seems to me that as so often, the best answer to this genuine social problem is “education education education”–in this case moral education of the children by their families and their families’ associates and…spreading out into the culture at large…by society at large. So that the children, as they grow up and become adults, have it thoroughly internalized that One Does Not Do That.

    For laws to work properly (not causing more damage than they fix) must they not be as clearly limited in scope as humanly possible? One does not refrain from penetration of a 4-year-old because to do that would be “taking advantage of ignorance, or of ‘insufficiently developed capacity to choose,'” or some such–but rather because one would be physically invading the person of the child, and that not for some purpose beneficial to the child (giving him shots, for instance, or any of several other more severe medical intrusions) but rather without regard for the inviolability of the child as a human person–as well as being without regard for causing pain or suffering against the larger best interests of the child. And these, we hope, have been internalized as being Wrong.

    (From here, we can if you like move on to the ethics of abortion. *grin* )

    It’s unfortunate that In This World of Sin there are no simple fixes to complex problems (but, Heavens! I must say I’ve never read Prof. Epstein’s book on that…wonder if it’s really any good).

    In general, my attitude is that it’s better to let people and society police themselves…saving the trained-killer-attack-dogs of Law and Law Enforcement for highly restricted and well-defined sets of circumstances.

  • bgates

    G Wilson is wrong, as his use of the stupid slur “religionist” suggests he would be. Here’s what Akin said:
    Well, how do you – how do you slice this particularly tough sort of ethical question. It seems to me, first of all, from what I understand from doctors, that’s really rare. If it’s a legitimate rape, the female body has ways to try to shut that whole thing down. But let’s assume that maybe that didn’t work or something. You know, I think there should be some punishment but the punishment ought to be on the rapist and not attacking the child.

    He’s saying pregnancy due to rape is *rare*, not impossible. He’s not at all saying that if a woman gets pregnant she could not have been raped. His position is that however the pregnancy was caused, the result is innocent life which should be protected.

    He’s also saying rape impedes pregnancy via a biological mechanism, not “an act of will”, which would be a bizarre thing to say and is a bizarre thing for Natalie to claim someone else said.

  • Trespassers W

    He’s also saying rape impedes pregnancy via a biological mechanism

    That’s alsoa bizarre thing to say. Is there any evidence for that?

  • Trespassers W

    Come to think of it, “Akin had the silly belief that women’s bodies have the power to prevent conception by an act of will” isn’t a bizarre claim at all (which is to say, it’s a reasonable claim about a bizarre claim).

    Apparently he believes that women’s bodies have the power to prevent conception by some biological response. But the body per se doesn’t know the difference between rape and non-coercive sex, only the mind; otherwise we’d all engage in rough sex as a cheap method of contraception. Any alleged biological mechanism would have to be triggered by the mind’s identification of the act as rape. To infer that Akin must believe that contraception under rape is an “act of will”, then, isn’t a big step.

  • Roue le Jour

    Getting back to the topic, quite agree. One might as well introduce the terms “statutory theft” and “statutory assault” in cases where the “victim” believes no offense was committed but the state believes otherwise.

  • llamas

    For many of the reasons raised in this post, the specified crime of ‘statutory rape’ is being gradually phased out in many places in the US, and replaced by a much-more balanced and flexible system based on the principle of ‘criminal sexual conduct’ in varying degrees, these degrees being carefully specified by definitions of behaviours, the ages of participants and their relationships to each other.

    I’m not suggesting that this is a perfect system but it’s a lot better than the simplistic one-size-fits-all definitions of the past.

    When you see ‘statutory rape’ in a US newspaper headline these days, more often than not, it’s the headline writer’s shorthand for whichever degree of CSC has been actually charged (varies by state). But sometimes it isn’t, and we end up with rather-sad cases where a person is branded a ‘rapist’ in the newspapers when what he or she did doesn’t comport itself at all with what most people understand by the term ‘rape’ eg consensual relations (of varying kinds) between two actors aged 15 years and 364 days.

    llater,

    llamas

  • RogerC

    Roue le Jour wrote:

    One might as well introduce the terms “statutory theft” and “statutory assault” in cases where the “victim” believes no offense was committed but the state believes otherwise.

    Please don’t give them ideas…

  • Alisa

    Julie: you are very welcome.

    Llamas: thanks for a much-needed clarification.

  • Alisa

    Julie:

    I’m very very leery of trying to fix moral problems with legal strictures. I know, you can argue that laws against assault, battery, robbery, and murder do exactly that.

    They don’t, not for the most part. Most people (most, not all) don’t go around killing and robbing other people not because there’s a law against that, but because they ‘just don’t do that’. Behavior can be enforced, morality can’t.

    But even though “enforcing morality” is often advanced as the (utilitarian or “pragmatic”) reason for such laws, one can also argue for them on the grounds of Pure Justice.

    That is the only grounds on which they can be argued for.

    Needless to add, I very much agree with the rest of your comment.

  • Julie near Chicago

    Alisa,

    I find myself befuddled as to where there’s any difference between our positions. Mine is the old saw–“You can’t legislate morality.” Whereas we CAN legislate against engaging in immoral behavior.

    Which is just exactly what you also said.

    Oh–maybe I see what bothered you. Well, a lot of people argue for laws criminalizing (say) murder because of the deterrent effect of punishment. In fact, I think most people do. (And I think there IS some deterrent effect…though how strong it is, I don’t know.) A lot of people argue for the death penalty on those grounds. [As it happens, I'm against the death penalty in all but the most absolutely obvious cases (I'd gladly off Mr. Mao or Mr. Pot or Mr. Bundy myself), but that's because of human fallibility.]

    The thing about utility and justice–I think I tried to say too much in too few words and made a hash of the issue. No doubt it will come up again from time to time. :>) However, I agree with what you wrote about that also.

  • Julie near Chicago

    “You can’t legislate morality.”

    Because, if a person is truly determined to do bad, the law won’t stop him. Only physical intervention can stop him.

    Personally I think we should lock everybody up, and only let them out on Sunday afternoons after they’ve proven how well-behaved they are when on their own.

    I think that would solve everything.

  • Alisa

    Oh no Julie, I wasn’t arguing – just putting a finer point on the deterrence aspect, as you just mentioned. Sorry for coming across as combative – nothing new there, I’m afraid:-)

    Thinking further about this, deterrence probably works with people who may be somewhat inclined towards “petty crime” – i.e. the slightly asocial types. But to someone who is asocial enough to seriously consider armed robbery, fully fledged violent rape or murder, the law is not a serious deterrent.

  • Alisa

    Funny, just ran into this on FB: ‘Good people do not need laws to tell them to act
    responsibly, while bad people will find a way around the laws. ~Plato’

    Did he really say that?

  • Julie near Chicago

    Alisa,

    Now we’re getting into the territory of trying to straighten out misunderstandings that are trivial but still seem to need attention: You didn’t come across as “combative” at all! I just thought I hadn’t put things quite as I meant them, so that you were moved to query. No harm, no foul, and, as my daughter would say, “A.G.” (“All Good”).

    ;>)

    Anyway, I completely agree that nobody who seriously wanted to (say) commit murder would be stopped because it’s *gasp* ILLEGAL!!! I guess I do think it might slow down a man who was majorly angry (or perhaps frightened) just enough for his self-control to kick in.

    Plato! — Never heard the thought ascribed to him before….

  • John B

    It would also be helpful if the term paedophilia were used in its correct sense and not used for under age sex, when properly it refers to sex with a child before puberty.

    However, at least in the UK, Statutory Rape is seldom heard, the catch-all term being “sexual abuse” whether or not it was consensual, and covering everything from so-called inappropriate touching to penetrative sex.

    In Europe the age of consent varies from age 13 to age 18 so depending where the activity takes place, assuming it is between two consenting parties, determines whether the older party is a paedophile, sexual abuser or Statutory Rapist or just going about their lawful business.

    In Britain, or Salem as we now know it, there is a full scale hue and cry over a dead TV celebrity, knighted and variously honoured, prolific cheriddy worker, hob-nobber with the great and the good, who was all the while, it has come to light, a “serial abuser” of under age girls, maybe a few boys along the way, mostly in the 70s, and a paedophile depending on who is spewing forth their righteous bile.

    Police are involved and the Pervfinder General has set out to widen the search for 30 and 40 year olds with crystal clear memories in order to gather accusations to smoke out others to bring to book.

    It is expected the dead celeb’s corpse will be dug up, put on trial, and then hanged in the public square.

  • Alisa

    I like ‘AG’, Julie:-)

    John B.: the whole thing is just plain creepy. Maybe if they do dig him out, they may found that he was actually a Catholic priest in disguise all along? That would make it all much more palatable.

  • Julie near Chicago

    John B:

    “…or Salem as we now know it….”

    *spews coffee all over keyboard again*

  • Rich Rostrom

    The issue is not that a child below the statutory age cannot give consent, it is that he or she cannot give informed consent.

    Pedophiles often claim that their victims consented to, or even solicited sexual contact. This is clearly absurd applied to a five year old. What about a ten year old? What about a fifteen year old?

    Some children are more intelligent, more knowledgeable, more mature than others. Some may be capable of giving “informed consent” before the legal age. But that is not something anyone can ever determine rigorously. To make that the legal standard would require an elaborate examination of every victimized child. And bear in mind that children generally want to be considered more adult than childlike. (Such children are prime targets for sexual predators, who offer them a form of adult status.)

    Having a fixed legal “age of consent” may deny effective freedom of choice to a handful of unusually mature children, but it is the only way to protect the rest from predators.

    And there should not be any exceptions for underage predators.

    The laws on contract and fraud are relevant here. A contract is never binding on a minor signatory. Period. No exceptions. Such a contract is unenforceable. The minor is assumed to lack the mental and moral capacity to make such decisions. The counterparty cannot present evidence that the minor is really very smart and knowledgeable.

    However, a minor may commit fraud. Prosecutors may present evidence that the minor has the mental and moral capacity of an adult, and charge him as an adult. Yet even when they do, that minor is still free of any contracts he may have signed. His lack of capacity as a victim cannot be challenged, but his greater capacity as a perpetrator is arguable.

    The same should apply in sex cases. A fifteen year old presumed incapable of informed consent to sex with an adult (which he very probably is) should be presumed incapable of informed consent to sex with another fifteen year old (is it likely the child is thinking any more clearly?).

    But a fifteen year old may be capable of taking advantage of other fifteen year olds, and is very likely aware that fifteen year olds are easier to exploit – just like an adult who seeks out early teens for sex. Anyone who has sex with a child is a criminal. If that other party is also a child, then that party is entitled to the protections afforded a juvenile criminal – but no more.

  • Rich Rostrom

    Alisa: But to someone who is asocial enough to seriously consider armed robbery, fully fledged violent rape or murder, the law is not a serious deterrent.

    Utter nonsense. Armed robbers, rapists, and murderers often go to elaborate lengths to avoid identification and punishment under the law; and they often refrain from robbing, raping, and murdering when they think they would get caught.

    What is that except being deterred by the law?

    And, incidentally, I am pretty sure there are people out there who think they might be perfectly justified in killing somebody, but would never break the law – who have a phipsohical respect for the law but not the Sixth Commandment.

  • Julie near Chicago

    Rich,

    Speaking of would-be deliberately-violent felons, it seems to me you’ve only said (or implied) that because of the law they mostly don’t take the most direct line of action to their objective. No, they don’t want to get caught; agreed; but that just means they try to work out some way of doing their evil deed which won’t lead to their being caught. The law may have slowed such a man down, but I don’t see how we can say it usually STOPS him.

    For instance, if a serial rapist has been stalking his next victim but then the situation changes so as to increase his risk of getting caught if he makes the attempt on her–does he give up rape? No, he just finds another victim. So the deterrence is merely temporary.

    Now in the case where the act would be a one-off, that might be different. It would depend on how strongly motivated the would-be doer was (and, still, whether he was able to think of some plan to avoid getting caught), wouldn’t it?

  • Laird

    “The issue is not that a child below the statutory age cannot give consent, it is that he or she cannot give informed consent.”

    Untrue; there is merely a legal presumption that he or she cannot give informed consent, a point which you later acknowledge in your post. As such it’s a reasonable compromise, for the reasons you pointed out. However, at present it’s essentially a conclusive presumption, which I think is wrong: it should be rebuttable given sufficient proof (what that would consist of I don’t know offhand, but the possibility should be allowed), and of course the burden of proof should be on the accused in such cases. But that’s not the law today.

    And I completely disagree with your facile rationalization of holding one 15-year-old to one standard and another to a different standard (in your scenario of two fifteen-year-olds having sex). Both are entitled to the same presumption of incapacity, provided that such presumption exists for either of them. Sauce for the goose and all that.

  • Rich Rostrom

    Laird: both 15 year olds are entitled to presumption of incapacity as victims. Neither is entitled to presumption of incapacity as perpetrators. It would be the same as if they sought to defraud one another with misleading contracts. Neither would be bound by the contract he signed; both would be liable to charges of fraud.

    As to your idea that an adult who has sex with a child should be allowed to present evidence that the child has adult capacity to give informed consent… I cannot imagine what such evidence could be other than attacks on the victim’s history.