Age of consent, again

Great Debates
1

From this week’s News of the Weird, published in our very own Chicago Reader:

Link to full column:
http://www.newsoftheweird.com/archive/nw050814.html
I know that the board has discussed this issue before (even though I don’t recall participating), but this one intrigued me. It presents a new twist on an old debate.

I’m in favor of reasonable age of consent (“AOC”) laws, but am uncomfortable with how they are sometimes enforced. For example, I think that lifetime child sex-offender list status for an 18 year-old guy who slept with his 16 year-old GF is nonsensical. I also think that the use of any phrase which uses the word “rape” to label the crime being committed here is unfortunate. (Reserve that for actual, non-“statutory” situations, or where the victim is below, say, 13 year of age, or where the perpetrator abuses a position of authority.) But all of this is just background explanation. These aren’t the issues I want to debate.

Two points get made (almost inevitably) on this issue. First, that persons below a certain stage of mental/social development are not sufficiently mature to have a sexual relationship, or to decide to start one. Accordingly, the actual consent of the minor is considered legally meaningless. Second, in response to an argument that some minors below the AOC are in fact objectively mature enough to make sexual decisions, it is argued that “the line has to be drawn somewhere”, and that any alternative means of determining whether a particular minor is ready for sex would be impossibly cumbersome. I agree with the first point and, until today, agreed with the second. Now I have some doubt on the second point.

When I read the NOTW blurb, my knee-jerk reaction was close to the one that the author of this humor column probably intended: laugh at the idiocy of the yahoos involved. Images of backwoods trailers or inner city single-parent situations are evoked. But that’s not necessarily the case here. (I have deliberately not researched the Rose case any further - the particular facts of that situation are irrelevant to this debate.)

My debate question: Should parents be allowed to give consent to sexual activity by their minor children, assuming the child is above a certain minimum age? For illustration purposes, let’s assume a general AOC of 18 and a parental consent AOC of 15.

Consider the following scenarios: (Note: I am going to use blunt, even stereotypical descriptors, both because they’re an efficient way of presenting these hypotheticals and, by generating a reaction, they might remind some readers that we all have unconscious prejudices, and the scenario that the NOTW blurb evokes is not necessarily the only situation possible.)

Scenario 1: Crack mom in city slum. Prostitutes her 15 year old for drugs. Moesha “consents” under parental pressure, or because he/she is an addict as well.

Scenario 2: Sixties holdover parents. Believe sex forms a mystical bond that everyone should enjoy. Parents open about their sexuality, and kids aware of parents’ sexual activity from an early age. Daughter Blossom (age 16) meets 22 year old Torquil at the annual commune reunion. Parents all approve of week-long
relationship.

Scenario 3: Educated, liberal, upscale parents. 17 year-old Alison’s parents thoroughly approve of 19 year-old Adam, who is pre-law at Stanford. Alison and Adam have been dating exclusively for a while. They met last year at high school. Parents are aware that Alison is mature, both socially and intellectually, and that she’s had prior sexual experience, which they’re not too thrilled about, because Alison went through a wild-child phase at 15, and they think the guys that she was with were losers. Adam’s a big improvement in their minds, and they hope the relationship lasts. Even if it doesn’t, they don’t want Adam to risk any statutory rape charge that might interfere with his future career. Adam and Alison have been tested for STDs, and Alison is on the Pill. No one involved has any objection to abortion.

Scenario 4: All involved belong to a new-age Wiccan-type religion. Sex is a quasi-sacrament that all members should engage in. Darach and Rowena, 16 and 15 respectively, will be part of a ceremony to honor a fertility goddess. Parents approve, and believe that ceremony, which culminates in a private shrine in the woods, is a religious requirement. D & R truly believe in their religion, are intelligent, well-read, and socially mature. D uses a natural method of birth control, and the congregation (which is stable) believes it has a collective responsibility to raise and support any children that result.

Scenario 5: Dad, lives in a rural trailer. 2 kids, the eldest of which is Luke. Mom’s long gone, having left the state to seek her fortune in the adult entertainment industry 15 years before. Luke’s 16, and sleeping with Doreen, who’s 25 and lives 2 trailers over. (Dad spends his time with divorced Luann, who’s 3 trailers beyond that.) Dad’s proud of Luke’s success with Doreen, who’s considered a catch in the community. Her aged great-uncle owns a share of the trailer park, and Doreen stands to inherit. Besides, she’s hot, and boys will be boys.

Scenario 6: Immigrant community. It’s typical for men to marry much younger women, after they’ve established themselves financially. Asok, 31, has done well for himself in the software industry, but has a paperwork glitch in his immigation status that precludes (as a present, practical matter) his marriage to Darma, 15. They are engaged, and plan to get married as soon as the glitch can be corrected. Darma’s father is long dead, and her mother has to return to the old country to care for a sick relative. Asok is considered to be a great match, and Darma wants to move in with him, both because she considers herself in love with him, and because she doesn’t want to return to the old country with her mother, where she’s afraid she’ll end up tending goats and caring for 8 kids with no access to modern health care. All involved consider American AOC law to be ludicrous. Girls back home get married at 13. Mom’s afraid that Asok will move on if Darma leaves, but is confident that community pressure makes the eventual marriage a certainty is she stays.

A couple final points. Some states allow minors to marry, with parental consent. Also, parental consent is a concept that permeates the law: medical treatment, joining the military, and use of alcohol in the home are examples.

So, should any of the parents described here approve of their minor’s sexual activity? Should they be allowed to? Should parental consent (together with the minor’s actual consent) be available as a defense to statutory rape charges?

2

Interesting subject for debate. I can’t wait to see what the opinions and legal ramifications are.

3

Interesting way to look at it.

I think the scenarios you’ve put forth illustrate exactly why the basis for age of consent laws as they stand seem ridiculous to some.

Certainly from various perspectives the adults in those scenarios have questionable levels of maturity/awareness/consideration when it comes to sex.

So, I’m not sure about how important parental consent is. I think that in situations where it’s clear that no one involved is too broken up over the fact that sex has happened, the state shouldn’t prosecute. That, though, would require the state to consider a minor’s opinions or feelings on the situation valid, which it currently does not.

Actually, I guess that really is the question for you. How could a parent give permission for a minor to have sex when we’ve already decided that the minor him/herself cannot give consent. As long as that’s the case, what the parent thinks has no relevance. And, if we changed it so a minor could give consent, then why on earth would the parents’ opinion matter one way or another?

4

Well, there may be one possible legal out; the girl and boyfriend might declare themselves common-law married, with her mother’s consent. As far as I know, underage marriages with parental consent are not uncommon.

5

Macaulay Culkin got married when he was 17, with his parent’s permission, as I recall. However, his bride was the same age, so I am not sure what the legal status would have been, if she was just a few years older.

6

From last year’s thread. I proposed a change in Emancipated Minor statutes.

7

Even as a Christian, I have no problems with people marrying young, and think it a fine idea if all involved are comfortable and mature enough to handle it. I think it a poor cop that peopoe often feel they cannot marry until their mid to late 30’s, due to finances or what-have you.

Beyond that, I think it’s all immoral anyway, so who cares about legality? :cool:

8

Of all the scenarios you presented, the only one that’s largely unsupportable under most cultural standards is the first one, as it involves addicts resorting to pimping out a minor in street level prostitution just to get drug money.

I’m more bemused that all scenarios involved heterosexual couples. Some things might challenge your views if you considered them otherwise. Chew on this:

Suppose all the scenarios involved gay and lesbian same sex couples. If 16-year old Bud meets up with 22-year old Torquil, do the hippy parents become charged with contributing to the corruption of a minor for approving of his relationship with a man in his twenties? What if Torquil is revealed to have been involved with members of NAMBLA in his younger days? How supportive would those liberal parents be if Madison and Adam were coming out together? Does 16-year old Luke’s openly sleeping with the “hot” 25-year old Darren continue to be a source of secret fatherly pride and remain another case of “boys will be boys?” Would the Wiccans likely be prosecuted as a dangerous child-endangering cult for promoting underaged homosexual sex? Can Mom count on community pressure to make certain a permament “marriage” for 30-year old Asoki and her 15-year old daughter Darma, or would that suddenly be viewed as child molestation?

I mean, age of consent is not just a heterosexual issue, right?

Just stirrin’ the pot.

9

There are a few places where a minor can’t give consent for something but a parent can. Marriage, drinking, and surgery are some examples.

Though if you think of a minor being completely incapable of consenting to have sex, the thought of a parent “consenting” for them is really oogy. If you simply think that the minor is capable of consenting but that the law doesn’t reflect reality, the oogyness goes away.

10

I expected this issue to come up, but deliberately avoided it in the OP. (Although in one of the scenarios, I left some ambiguity, although I admit that the names I chose implied a MF couple.) I have a couple reasons for my choice, which I will explain after this thread plays out a little while longer.

11

Should a parent be able to give their child the ability to make the choice for him/herself if that parent thinks the child is sufficiently mature? No.
If the kid is that mature he/she will have sex without getting caught and no one, including the parent, will ever be the wiser.

If the police come looking, someone in there is probably not mature enough.

How many parents do you know who let their daughter and her boyfriend go up to her room, and stay the night? Probably quite a few. But the police are never going to come.

The laws may look funky if you assume they are executed to the word of the law and that the police care enough to track down all the high school boy/girlfriends and keep them under surveillance. But, simply, they don’t. And if it isn’t broken, don’t fix it.

12

Most states no longer recognize common-law marriage. Also, except for those who follow the no sex before marriage rule (a distinct minority these days), it’s not really a solution. In other words, most people consider themselves ready for sex at a point before they’re ready to get married.

13

Two problems with this. As a matter of policy (or philosophy), I believe that laws should be enforced or repealed. Doing otherwise breeds contempt for the process, even if the law is never enforced. If the law is selectively enforced, it leads to unfair results (by definition), even if there’s no outright prejudice or malice by those making the decision to prosecute.

What about where high school kids Sean and Rebecca have sleeping together, with no objection from Rebecca until Sean breaks off the relationship, which gets her tearful or angry, leading to a complaint by her parents?

This rest of this is somewhat OT, because it deals with situations where the parents never would have consented, anyway. But there have been cases (or so it has been claimed, anyway) where 17 year-old Muffy’s parents, the local cops and the local prosecutor went after Tyrone (age 19), because Tyrone didn’t fit their idea of a proper boyfriend for Muffy. Why should Tyrone run that risk, when Chip gets a pass? What if someone gets pregnant, and the parents find out that way? Are you seriously proposing a system where teens rely on lying to their parents and not “getting caught”, where “getting caught” may mean a lifelong listing on a sexual offender registry?

And if the parents do find out, why should Bob get a pass, just because Jenny’s parents are reasonable folk, when his twin brother gets prosecuted, because his GF’s parents are hardcore no-sex-until-marriage types who jump to the conclusion that anyone who touches their darling daughter must be a fiend?

14

I proposed nothing, I only pointed out that the current system isn’t bad.

For the above case, it had been my understanding that most states had things for minors where if you’re near or under 18, there’s a three years (or however much) age-difference clause which allows teen sex. If not, then the teen rumor to such effect with which I was indoctrinated makes perfect sense–so why not just go with that?

15

We agree on your first point. As for your second, I agree with you, to a point. A teen asking his or her parents for permission to have sex strikes me as odd, or weird. I would have had a hard time with it as a teen.

But maybe we shouldn’t be uncomfortable with that. Hell, most people are uncomfortable discussing sex with their parents. I still am, and my teen years are long past. Yet we think that parents should discuss the facts of life with their kids, and we approve of parents making sure that teens know about birth control, and how to avoid sexually transmitted diseases. If Lisa is supposed to be able to discuss these issues with Mom, why is the next step so tough? Maybe the reason why we think that asking permission is odd only because, today, it’s a pointless act. We’ve overcome some of the oogy-ness of talking with parents about these other sexual issues, because there is a point. Maybe if parental consent had a point - was a meaningful act under the law - we’d overcome it here, too.

Sure, I know that most parents aren’t going to give the consent at issue. There’ll still be plenty of 17 year olds sneaking around having sex, risking prosecution. That’s a different issue, for another thread. But some parents would give consent. I’ve tried to illustrate that with my OP scenarios.

16

I’ve already listed some of the problems with the current system.

As for your second point, I don’t believe that you are correct. Some states may allow people who are below the (otherwise applicable) AOC if the participants are close in age, but I don’t believe that most do. Other states do make a distinction in the law for close-in-age sex with a minor but, either way, it’s still a crime. In Illinois, for example, a quick check (which ignores some nuances) indicates you’d be guilty of criminal sexual abuse instead of aggravated criminal sexual abuse.

Even if all 50 states adopted a law completely decriminalizing underage sex as long as the participants were within 3 years of age, that doesn’t address all scenarios. What about Doreen, or Asok, or Torquil? What about Adam, if he’s 20 years old (and 37 months older than Alison?)

17

…allow people to have sex who are below…

18

That’s just getting back to the whole argument that determining a set-age barrier is arbitrary.
Of course it’s arbitrary–but in the end, you do need something that is cut-and-dried and when you do that, there’s always going to be cases that slip under the rug and others that get prosecuted when they shouldn’t.

The question is whether “near-age” laws are a better or worse bandaid than written parental consent. And there, I would be inclined to believe that “parental consent” would be more likely to allow cases of parents prostituting their children than preventing unfortunate make teens to get slapped with a sex-offender brand. An angry parent who can deny allowing the boyfriend to stay the night can just as easily deny that he wrote a letter of consent.

19

You’re assuming that it’s an either-or proposition. It’s not. You could have parental consent and a near-age exception. There’d be no crime if either condition were present. Even with unreasonable or vindictive parents, Adam would be off the hook (using the ages in my original post), because he’s only two years older than Alison. What a parental consent exception adds is illustrated by the Asok or Doreen scenarios.

I’m not sure I understand you here. Are you saying that there’s no point in changing the law (even if it reduces arbitrariness and increases fairness) unless the change in the law achieves perfection and eliminates arbitrariness and unfairness? The intro to my OP said that I used to accept arbitrary and inflexible AOC laws beacause I couldn’t conceive of any modification - any alternative method to determine maturity - that wasn’t impossibly cumbersome. I didn’t say that the alternative method had to be perfect and eliminate all possibility of an arbitrary result. Very few changes in the law would meet this standard.

I also have never suggested that parental consent should completely take the place of AOC laws, simply that consent would decriminalize behavior that otherwise would violate the AOC law.

And a 25 year old woman can deny that she gave consent to her 25 year old date the night before, and report a rape. It becomes a question to be decided at trial. Your point?

20

It’s not the asking permission part. It’s “You’re too immature to know if you want to have sex. You might not want to have sex. But I want you to have sex! Sex for you!”

The thing about someone not being able to consent is that we understand that if able to consent they might say no. If we say, “A teen can’t consent to have sex” we’re saying they can’t say yes. If we say, “A teen can’t consent to have sex, but a parent can consent for them” we’re saying they can’t say no.