Teenagers Have a Civil Right to Have Sex?

[Bricker]

Inspired in part by this thread.

It’s obvious that minor children have some civil rights. Police cannot stop then on the street and search them (absent probable cause). They may wear a black armband in school to protest war, even if the school doesn’t want them to. They may have some right to obtain an abortion without parental involvement or consent, depending on where you are and what you believe.

It’s equally obvious that minor children do not have all the civil rights that adults do. They may be constitutionally subject to curfews, and they may not enter into binding contracts. They may not vote. They may not live on their own, or marry without parental consent.

Do they have a civil right to have sex with each other, or with adults?

In favor of the argument that they do: decisions about sex are matters of the most intimate and personal kind; choices central to personal dignity and autonomy, are central to the sort of liberty that courts have said is protected by the Fourteenth Amendment.

By what right does society constrain two teenagers from having sex with each other? And by what right does society constrain a teenager from making the personal choice to become intimate with an adult?

[caphis]

I think the general concern is that teenagers are not educated enough to make informed decisions about whether or not they want to have sex.

Given that, I think that many are like this, but many aren’t. For example, I lost my virginity at age 15 and before the age of 18, I’d had sex with 1 girl and 4 guys. I was well aware of all of the risks involved, and I don’t regret having done any of it now.

So yeah, I can see why people act ‘in the best interest’ of the teenagers, but I don’t agree with a universal application of sex ideology to every teen.

[marshmallow]

The problem with making legal decisions concerning teenagers is that people develop both emotionally and physically at different rates, and you have to eventually set out an arbitrary line unless you want to make the process complicated. We’ve decided, for most things, that the line is 18.

For good or for worse…

[Lamia]

The OP didn’t mention the “magic age” of 18, but since all replies thus far have I think it’s worth reminding everyone that the most common age of consent in the US is actually 16. It is 18 in some states, and 14 or 15 in others, but most states consider those old enough to drive to be old enough for sex.

[AHunter3]

Children (by which I mean people younger than the Official Age of Adulthood) may not always make good decisions about sex, but if the other person(/s) is pretty close to them in age and the situation does not seem to incorporate coercion, I think more harm than good is done by interfering.

So yeah, I think age of consent should apply only w/regards to consenting to sex with adults. Children younger than that should be assumed to have the right to consent to sex with each other (within the bounds of similar age and absence of coercion as I said). Neither the state nor other official institutions should impose obstacles in an attempt to keep it from happening.
I’m assuming that’s what you’re asking, i.e., that you’re not asking for my interpretation of existing pertinent laws?

[TonyF]

@Bricker

By what right does society constrain two teenagers from having sex with each other? And by what right does society constrain a teenager from making the personal choice to become intimate with an adult?

I don’t know if there is a right by which we make these constraints. I think it’s more implicit, much like, if you live under my roof you live under my rules; it’s the “inherent” right for adults to govern their children. I guess.

It’s kinda like how marriage is “defined” as being between a man a woman. Unfortunately.

[aahala]

Civil (legal) rights come from government. If the government says you have such rights, then you do. If they say nothing, then you don’t until and unless they say you do.

There are lots of things we do which government or law enforement never bothers us about. That does not mean those actions are “rights”.

[Odesio]

@Bricker

Do they have a civil right to have sex with each other, or with adults?

I suppose they have a right to have sex with one another. I know of no laws against children purchasing condoms or other contraceptives. Of course I’m not the government so I’m free to be a bit more strict with my children should I ever have any.

In favor of the argument that they do: decisions about sex are matters of the most intimate and personal kind; choices central to personal dignity and autonomy, are central to the sort of liberty that courts have said is protected by the Fourteenth Amendment.

While the state might not have the power to prevent teens from having sex I think a parent does. (Theoretically anyway.) The state has no right to prevent my teen from associating with other teens but a parent does.

By what right does society constrain two teenagers from having sex with each other? And by what right does society constrain a teenager from making the personal choice to become intimate with an adult?

A parent is responsible for the health and well being of their child. If a teen gets pregnant she isn’t typically able to care for the child herself and it becomes difficult for her to continue her education. Who foots the bill? The parents of the mother and maybe the parents of the father. That doesn’t even cover STDs or any emotional difficulty that might result from these relationships.

As for preventing a teen from having sex with an adult I don’t have a problem with that. If a 20 year old man was coming over to date my 15 year old daughter I’d be pretty darn irate. Maybe it’s just my personal experience but I’ve never seen anything good come out of those kinds of relationships. Most adults who want to date teenagers are scummy.

What gives us the right to constrain the actions of a teenager? Most people seem to think that adults are a little wiser and can make better choices. Realistically I’d have to accept that any teen of mine was probably going to have sex and it would behoove me to ensure that they knew the facts and could make such decisions on their own. I wouldn’t accept my child entering into a sexual relationship with an adult though.

Marc

[Hamlet]

@Bricker

Do they have a civil right to have sex with each other, or with adults?

While many states have indicated that minors do indeed have a right to “privacy”, none have ever extended that right to find that statutes criminalizing sex with minors are unconstitutional. Take, for example, Jones v. State, 640 So.2d 1084 (1994), where three adult men argued that the statute criminalizing sex with minors in Florida, was an unconstitutional infringement on the minor’s right to privacy. The men in that case had, by all accounts, consensual sex with 14 year old girls.

The Court in that case did not discuss in depth the nature and extent of the minor’s rights to privacy, except to state: “The rights of privacy that have been granted to minors do not vitiate the legislature’s efforts and authority to protect minors from conduct of others”. The Court did hold that whatever rights the minor had, the State had the Constitutional power to regulate those rights. They stated: “The State has the prerogative to safeguard its citizens, particularly children, from potential harm when such harm outweighs the interests of the individual.”

The Court also stated: "The petitioners argue that the statute is unconstitutional as applied because the girls in this case have not been harmed; they wanted to have the personal relationships they entered into with these men; and, they do not want the “protections” advanced by the State. However, neither the level of intimacy nor the degree of harm are relevant when an adult and a child under the age of sixteen engage in sexual intercourse. The statutory protection offered by section 800.04 assures that, to the extent the law can prevent such activity, minors will not be sexually harmed. “[S]exual exploitation of children is a particularly pernicious evil that sometimes may be concealed behind the zone of privacy that normally shields the home. The state unquestionably has a very compelling interest in preventing such conduct.”
I’d also point out that the concurring opinion has quite a discussion about minor’s ability to consent and the reasons for legislation criminalizing sexual activity with minors.

[Tyrrell_McAllister]

I shall preemptively address what I believe (but do not know) is the OP’s subtext. If I am wrong about what the OP is getting at, I apologize for the non sequitur.

First, my impression of the OP’s subtext: I suspect that the OP believes that most people would deny minors a right to sex (RtS). Now consider his argument for the claim that minors do have a RtS:

@Bricker

[D]ecisions about sex are matters of the most intimate and personal kind; choices central to personal dignity and autonomy, are central to the sort of liberty that courts have said is protected by the Fourteenth Amendment.

This looks to me like a paraphrasing of some of the arguments for allowing minors to have abortions without parental consent.

Therefore, I believe that the OP intends to argue that since the argument above does not suffice to grant a RtS to minors, it also does not suffice to grant a right to abortions to minors. Again, if I’m mistaken in imputing this motive to Bricker, I apologize.

However, proceeding with the assumption that I’m not mistaken, let us grant that minors do not have a RtS. Then I maintain that this does not allow us to conclude that, by analogy, they do not have a right to abortions. The most significant difference between the two cases is this: When a minor is prevented from having an abortion, she is being saddled with consequences that will persist well into her adulthood. She is being placed under a substantial financial burden for the next 18 years.

Contrast this concrete and certain harm with the possible harm that could follow from denying her a RtS. Perhaps, as an adult, she might retain some regrets over the missed opportunity. Perhaps she might have some kind of emotional damage caused by the curtailing of her sexual autonomy. But these consequences are highly speculative, and even if they do result from denying her RtS, the harm they inflict seems much less significant than the burden of raising a child against one’s will.

By analogy, I don’t think that minors should have the right to enter themselves into substantial debts without parental permission. So, in this sense, parents have the right to control how their children manage their finances. However, I do not think that this control extends to the point where parents may saddle their children with debts which they will have to devote the next 18 years to repaying.

Similarly, I allow that parents should have much control over the sex lives of their children, but I do not think that this control should extend to having the power to deny their children an abortion if they wish to have one.

[Bricker]

@Tyrrell McAllister

I shall preemptively address what I believe (but do not know) is the OP’s subtext. If I am wrong about what the OP is getting at, I apologize for the non sequitur.

A good discussion, but you do misapprehend the reasons I started this. In the OP, I linked to the thread that inspired this one. It’s not an an issue of abortion for minors – it’s an issue of what process we use to determine questions like this. On other issues, a simple assertion that “X” is a civil right seems to carry the day. I’m seeking to explore what happens to our analysis method when I declare that “Sex for teenagers” is a civil right.

[Jonathan_Chance]

Well, just approaching it from a logic-of-law POV I’d say that the existence of ‘age of consent’ laws that prevent someone from having sex if there’s too great an age difference implies that minors have ‘right to consensual sex’, God help me.

That is, if the law states that two minors, having sex, are within 4 years of each others age, they may not be prosecuted for the act, then there exists a right for them to do so.

[Polycarp]

As I think Bricker intended, this question is not so easily resolved as it might at first seem:

1. Bricker, is your “dignity and autonomy” argument based in large part on Lawrence?

2. Is it an automatic conclusion that a right is ipso facto an absolute? Or may it be infringed on in the interest of the rights of others or for some other valid reason?

3. Does the state have the right to function in loco parentis as regards minors? In the absence of parents? Absolutely, whether parents are present or not? Only in behalf of parents and on their invocation of its role? Contrary to the wishes of parents? On what legal grounds do you base the answer you give?

4. In a real way, this question probes to the bottom of the old red herring regarding homosexuality and pedophilia. Where is a line to be drawn, and on what grounds?

[Homebrew]

@aahala

Civil (legal) rights come from government. If the government says you have such rights, then you do. If they say nothing, then you don’t until and unless they say you do.

There are lots of things we do which government or law enforement never bothers us about. That does not mean those actions are “rights”.

That stands in stark contrast to the Constitution of the United States, specifically the 9th and 10th Amendments.

Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Madison’s proposed amendment would have made it more clear

First.
That there be prefixed to the constitution a declaration–That all power is orginally vested in, and consequently derived from the people.
That government is instituted, and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety.

Some Federalists feared, and I think evidence have shown them correct, that by specifically listing some rights, those in the Bill of Rights, has served to make other rights less safe. For instance our own Bricker will argue that a right is non-existent unless it can be found in the text of the Constitution. You, aahala, state that a right is only a right if it’s granted to us by the government. But in reality, the Constitution grants certain powers to the government that it doesn’t otherwise have. Unless given the power to regulate something, then it shouldn’t.

Alexander Hamilton, Federalist, no. 84 said it well

I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge with a semblance of reason, that the constitution ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it, was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.

Just as Hamilton warned, we are now arguing over whether something is a Liberty or not (sex, marriage rights for homosexuals, the right to own guns) when there is nothing in the Constitution giving the government a right to regulate any of them.

[Tyrrell_McAllister]

@Bricker

A good discussion, but you do misapprehend the reasons I started this. In the OP, I linked to the thread that inspired this one. It’s not an an issue of abortion for minors – it’s an issue of what process we use to determine questions like this.

Ah, ok. Then perhaps my post can stand as an example of what process I, at least, use to determine the answer to the question of whether minors have a civil right to an abortion, so the post was at least not completely irrelevant.

On other issues, a simple assertion that “X” is a civil right seems to carry the day.

I think you do a disservice to those how make such claims and to those who are convinced by such claims. Proponents almost always buttress their assertions by making appeals to more general moral principles which they hope the listeners share. Listeners are usually convinced of the assertions, if they are convinced, because they find these arguments convincing, not simply because the assertions were made.

[Ms2001]

@Bricker

Do they have a civil right to have sex with each other, or with adults?

Yes and yes.

By what right does society constrain two teenagers from having sex with each other? And by what right does society constrain a teenager from making the personal choice to become intimate with an adult?

None. The fact that these laws exist and have been upheld merely shows that prejudice and paternalism are alive and well.

@mstay

The problem with making legal decisions concerning teenagers is that people develop both emotionally and physically at different rates, and you have to eventually set out an arbitrary line unless you want to make the process complicated.

Making the process complicated is necessary in order to treat individuals fairly.

To use an extreme analogy, we could make law enforcement a lot less complicated by eliminating the need for warrants. We could make copyright enforcement a lot less complicated by eliminating the distinction between legal and illegal P2P use, and arresting anyone who uses BitTorrent for any purpose. But would you really want to live in a country where your rights are abridged just to make life easier for police and prosecutors?

[Blalron]

@Bricker

In favor of the argument that they do: decisions about sex are matters of the most intimate and personal kind; choices central to personal dignity and autonomy, are central to the sort of liberty that courts have said is protected by the Fourteenth Amendment.

The wording of the Lawrence vs Texas doesn’t read that way.

This case does not involve minors, persons who might be injured or coerced, those who might not easily refuse consent, or public conduct or prostitution. It does involve two adults who, with full and mutual consent, engaged in sexual practices common to a homosexual lifestyle. Petitioners’ right to liberty under the Due Process Clause gives them the full right to engage in private conduct without government intervention. Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the individual’s personal and private life

Protecting minors from sexual exploitation is a legitimate state interest.

[Ms2001]

@Blalron

Protecting minors from sexual exploitation is a legitimate state interest.

Protecting anyone from sexual exploitation is a legitimate state interest. The question is whether these laws are an appropriate way to further that interest.

[Blalron]

@Mr2001

Protecting anyone from sexual exploitation is a legitimate state interest. The question is whether these laws are an appropriate way to further that interest.

Which legally is up to the discretion of the legislatures, however misguided they may be. Bricker is testing the argument of a right on constitutional grounds, but most likely that’d fail in court.

[kniz]

[ul][li] There is no law against teenagers having sex. The laws are against adults having sex with minors. [/li][li] Age 18 is when parents no longer are responsible for caring for their children. Also it is when they are no longer responsible for the children’s actions, debts, etc. This means there is a trade off between the children having fewer rights for not being responsible. For instance, who is paying for the abortion and even if it is the boyfriend; what if something bad happens; who pays the hospital bill and if it is malpractice; who pays for the lawyer to sue the doctor?[/li][li]Why does the question of rights come up for teenagers? What about those oppressed 2 year olds? They are rebelling but don’t know about rights. Is that fair?[/li][li] The Constitution gives certain powers to the government. [/li]

When the Constitution was being proposed to our American ancestors in 1787, many people expressed the concern that the document failed to specify the fundamental rights of the people that would be immune from assault by federal officials.

The response to that argument was that since the Constitution expressly restricted the government to specified, enumerated powers, and since those powers did not include the power to trample on the fundamental rights of the people, it was unnecessary to expressly prohibit infringements of those fundamental rights. Moreover, the enumeration of certain rights, the responders argued, could be construed as implicitly empowering the government to trample on rights that were not enumerated.

[li] The Bill of Rights were then written, but did not give the people rights, but instead tells the government expressly what rights it cannot mess with.[/li]

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

[/ul]