What? No.
From my OP:
(emphasis added)
What is “actual consent” if someone can’t consent?
“Actual consent” in this context is “Yes, I want to have sex with you”, or some similar communication, either explicitly or implicitly. If the person who says that is below the applicable state AOC, that statement is legally meaningless.* Sometimes that’s phrased as “A minor is unable to legally consent to sex.” So, in kind of a shorthand way, people distinguish between “actual consent” and “legal consent”. Saying that she can’t legally consent doesn’t mean that the minor didn’t (actually) want the sex, or didn’t (actually) agree to the sex, or didn’t (actually) chant “Fuck me now” to her boyfriend during the entire (actual) act.
Under the law now, in every state I’m familiar with, no one can (legally) consent to sex with a minor below the AOC. Not the minor, not her parents. However, the proposal under discussion here contemplates a change in that law. That proposal would make consenting to sex something legally akin to consenting to join the army, or consenting to drink a glass of wine with the family dinner. Both steps (the glass of wine or joining the army), if done by a minor, require parental consent.** Doesn’t mean that the parents can legally force their kids into basic training or legally require them to pound tequila shots against their will.***
As I’m predisposed (both by nature and training) to overanalyze issues and anticipate objections, I made sure in my OP to make it clear that the change in the law that I was suggesting would require the actual consent of both the parent and the minor involved for that consent to be “legal”.
*Not absolutely true. In many (if not most) states, the minor’s actual consent is not completely meaningless. Without that consent, the the person engaging in intercourse with the minor is guilty of rape, or aggravated criminal sexual assault, or whatever the state in question calls The Worst Kind Of Criminal Sexual Conduct You Can Perpetrate. In many states, at least under some circumstances, it’s a lesser crime simply to have sex with a near-adult minor, if that minor (actually) consents.
**Or so I understand. I’ve never (actually) researched either issue. Amazingly, neither came up in law school, and no client has ever asked me to look into these questions.
***Well, maybe on a technical, common-law basis, an argument could be made that a parent has these legal powers. Interesting abstract issue. (Remember what I said about overanalysis?) Ahem. As a practical matter,as the Army ain’t going to take any bound and gagged recruits (no, not even now), and as the local Department of Children and Family Services probably has a firm policy against tequila shooters, the minor’s consent is required.
I meant it as either-or in the sense that we’ve already got a solution to the most probable case of mess-ups that you referenced. But certainly you could have both, if having the second adds more positives than negatives.
Luke & Doreen: Certainly a fine example, and I agree that Dad being able to get a “These two: Sex, Big Okay” license would be fine. I just don’t see that the odds that the two are going to be arrented and prosecuted as being terribly high.
Asok & Darma: At 31, I should hope that Asok is mature enough to keep it in his pants for three years. But agreed, if Darma is a fully mature 15 year old and aware of the future she is intending to leap into without ever having had a girly teenhood, I have no issue.
I’m saying there’s no point in creating the law if for the sake of fixing a few rarely occuring issues you open up a whole greater number of worse problems.
I would just be voting that for every 1 Luke who is saved, there will be 3 children prostituted by their parents under the law.
Humans. It’s not official, but police officers don’t want to convict people who have done no real wrong, lawyers and judges don’t, taxpayers don’t, etc. Certainly there are going to be cases where a couple of A-holes band together just for the sake of feeling good about themselves, but I don’t see this law as being worth it just to prevent this rare occurence.
The point is that a little slip of paper isn’t going to do much good to protect Doreen from getting slapped with a sex-offender thing. If you made it where Luke’s father had to go into the government and register for an official, notarized document then certainly. But as said, I would personally imagine that you’re going to get a lot more shady characters coming in for the license on their children than honest individuals who respect their children’s rights.
The problem that I have with that is that the supposed reason we have consent laws in the first place, and the reason why it’s illegal to have sex with post-pubescent minors, is because we’ve decided they cannot make that decision, or give “actual consent”. As soon as it becomes a ‘parental permission’ issue, you grant the teen the ability to choose to have sex and give consent on his or her own. On what grounds then do you make it illegal for a teen (who is now able to consent) to have sex without parental permission?
It’s not quite the same as your alcohol analogy, as alcohol isn’t illegal for a minor because he or she cannot make the decision to imbibe on his or her own. I don’t think the concept of consent applies in that situation.
How does that follow? I don’t understand your reasoning. The whole point is that the teen wouldn’t be able to make the decision on his own. His actual consent remains meaningless unless and until the parent also consents.
I don’t follow your reasoning in rejecting the alcohol analogy either. But no matter. I’ll use the underage marriage analogy instead. As with my proposal, underage marriage in many states requires parental permission (by law). That law doesn’t somehow make it possible for underage teens to marry without that permission. It’s just the opposite.
Again, he’d not be able to fully consent on his own. That consent becomes adequate only if the parent also consents. On what grounds? Because that’s what the proposed statute would require. Are you trying to say that such a statute would somehow be unconstitutional or otherwise invalid? If so, on what legal theory do you rely?
You want a weird “age of consent” issues? Look at alcohol laws. You’ve got states like New Mexico where supplying a sub-21 year old but still legal adult with alcohol is a felony. A 21 year old could marry a 20 year old and if they shared a glass of champagne at the wedding, the 21 year old would be committing a felony if he had bought the bottle of champagne.
Okay, so it appears that we agree on many issues (ref. your first 3 paragraphs).
I don’t agree with your prediction in your fourth paragraph, but I concede that reasonable minds can differ. (My first example in my OP essentially acknowledges the potential problem that you raise.) If that’s what you believe will happen, that no other legal mechanism will prevent widespread child prostitution sponsored by parents, then you should oppose this change in the law. Again, I concede that the statutory change under discussion would remove one legal tool now available to combat parents who pimp their children. But other tools would remain available. Prostitution would still be illegal. Pimping would still be illegal. Also, it’s likely that state child-welfare statutes would also prohibit this behavior. After all, although it may be legal today for a parent to allow a glass of wine with dinner, that doesn’t mean that the local state child-protection agency would not have the power to step in if the parents allow their child to drink to excess.
Finally, with respect to your fifth paragraph, I concede that the odds are against Adam being prosecuted. Same with Doreen, although I’d be a bit more concerned if the genders were reversed. I’m not so sure about Torquil or Asok. Bigger age difference, the “victim” is female, and I’m afraid that too many cops and prosecutors might have a bias against weird foreigners or oddball hippies. Same bias exists in some parts of the country against non-mainstream religions, so Darach should worry, as well. Even if Darach isn’t prosecuted, the parents involved might have DCFS problems.
Mix up the races, and you increase the risk that someone will get upset and prosecute. And now is probably a good time to return to the point mentioned by Askia. Is Luke’s dad going to be just as proud and accepting if Luke is with Donald instead of Doreen?
So, on balance, I’m less comfortable than you in relying on the universal good sense of parents, prosecutors, police and politicians. Even if such arrests and prosecutions are “rare”, the consequences can be extreme. Why not reduce them even further?
Most of the issues you bring up strike me as being much more societal issues than legal ones, and if the government is going to involve itself it would be better to run advertising campaigns to combat homophobia or foreign-culture-phobia. In the long run this would solve this and many other issues much more effectively–as I view it.
Issue 1:
The problem for me is that even liberal, free-sex types seem to just as often as not go back to their upbringing when it comes to their children. They smoked dope and had wild orgies as teens, but I think will generally get rather squeemish about their own kids doing these same things. So when it comes time to go down to the government building and register your baby for sex–how many people, given current USA culture, are actually going to go? Probably people who:
- are either way pro-sex and would sign their kids up no matter what
- intend to use the legal sexual status of their child
- have a teen who is pestering them to do it and are more concerned with getting the brat to shut up, than to insure a bright future for her offspring
- otherwise have some personal motive
- honest folk who have a mature son or daughter who deserve to be able to have sex now, and it’s silly to make them wait
Issue 2:
With Asok and Darma, and you’re dealing with cultural values, is Darma being married to him because the two mutually love each other (#5)? Or is it because her father is trading her off as a possession (#4)?
With current law, we assume that until a person is 18, they aren’t mature enough, but also that they aren’t independent enough to choose a future for themselves. They don’t have an education that can get them a real job, and are likely to not have any experience working even at a Kinkos (of course that probability changes as you get closer to 18), nor any of their friends–so no connections in the real world. Society is built around people reaching maturity at a given age and paces things such that by that age they are ready to begin an independent life–but the further previous to that you go, the harder it is going to be.
So, why are we supposed to believe that Darma’s father is respecting her rights as a mature individual (instead of as trade goods), that she is going along with it of her own free will and mature enough to make that decision, and that Asok respects her as an equal human being?
The best we can do is to say that, by 18 it appears that the grand majority of everyone is capable of making his or her own decisions–before that, it’s best and safest to assume not. The only disadvantage being that, some guy has to keep it in his pants for a couple of years–which really isn’t a bad thing. (And even if he doesn’t, as said the probability of anything happening–particularly with a near-age law–are very low.)
So simply, the government has to assume that the parents of a child are capable of raising a child, but there is no reason for the government to assume that the parents can or should be able to choose the future of their child. And at this current point in time, sex is viewed as something that can effect a child’s future (be it through pregnancy, STDs, or manipulated or psychologically damaged through sex.)
Conclusion:
Between issue 1, which would make me believe that it is more probable in today’s atmosphere for most licenses being made for the wrong reasons, and issue 2, where simply parents should (perhaps) not have such a right and where it really isn’t bad that they don’t, I just see no outweighing plus in the proposition.
Well, I guess the way I see it is this (please correct me if I’m wrong):
Currently it is illegal for people under age X to have sex. The reason for this is because those people are not able (for whatever reason; something having to do with maturity) to actually decide to have sex. A person under age X cannot say yes to sex. This is the crux of my argument, so if I’m confused on this issue, let me know.
Introducing a parent permission componant (it is legal for a person under age X to have sex with permission from parent) would seem to imply that in fact a person under age X can say yes to sex, and it is only a matter of a permission slip that keeps them from doing so (well, probably doesn’t keep them from doing so, but you get my drift). So, if teens are mature enough to consent to sex, and it’s merely a question of circumstance an parental opinion, what are the grounds on which the sex is illegal in the first place? It can’t be the consent issue anymore, because we’ve now changed the litmus test by which we find teen sex illegal.
Am I making sense? I’m not trying to be obtuse, really. 
Right. The consent becomes adequate to satisfy our imaginary law only with parental permission. But my question is now on what grounds is it illegal for the teen to have sex in the first place, if he/she is able to consent? Or are you saying that the teen isn’t actually able to consent without parental permission? IOW, parents get to decide if sex is ok (or if a partner is acceptable) for their children on a case-by-case basis, enforcable by statutory rape laws?
This helps, Eonwe - I think I now have a better handle on your point. But I’m still not sure, so forgive me if what I’m about to say is overlong, redundant, or somehow goes beyond your issue.
Yes, currently, it is illegal to have sex with someone under the AOC. (Illegal for the person having sex with the minor, that is. It may not be illegal for the minor, if the other participant is above the AOC. Exact nuances will vary from state to state.) The primary purpose of this law is to protect minors, under the assumption that minors lack the mental, physical and/or social maturity to engage in sexual activity. This point can be divided into two separate but related points: A) The minor is deemed to be too immature to make an informed decision about whether to have sex. B) The emotional, physical and other possible results of the sexual act will likely harm the minor. Accordingly, under the present law, if the minor decides to have sex, that decision - that consent - has no legal power or meaning. Essentially, the law steps in, erases the minor’s “yes” and replaces it with a “no”. So, as far as the law is concerned, the person who engages in sex with that minor is a criminal, just as someone who has sex with an adult who says “no” is a criminal. Said another way: it’s not illegal for the minor to say “yes”. Rather, that “yes” has no legal effect or meaning. That “yes” is not a defense to the person charged with rape, or sexual assault, or whatever the state calls this particular crime.
No, we haven’t completely changed the overall test or standard. It’d still be there. There’d just be an exception that might apply sometimes.
Before I respond to your point here, I need clarify that the change in the law suggested in my OP didn’t say anything about written permission slips, or any need to register the parental consent with the government. You and others who have responded here seem to assume otherwise. Sure, the law could require that, and maybe that would be a good idea, but that’s not part of what I suggested. Parental consent could be in non-written form, just as consent by an adult to sex under the present law need not be written.
Back to your point. First, the premise behind present AOC law is not that every minor lacks the maturity to have sex. That’s certainly not my premise, and in prior debates on this board, most people seemed to agree that at least some minors were mature enough to make an informed decision about sex, and wouldn’t be harmed if they did have sex. But how do we determine who is ready and who is not? An arbitrary age cutoff is less than perfectly satisfactory - set it high enough to ensure that all (or nearly all) people who need protection are protected, and lots of people who don’t need protection end up frustrated and restricted. (or if they ignore the law, someone’s risking prosecution.) People mature at different rates. Some 14 year olds might be ready. Some 18 year olds may not be. But if age shouldn’t the sole standard, what should be? Medical testing? Judicial determination? Psychological eveluation? A written test that must be passed? All way too cumbersome, expensive or inaccurate. Most people conclude “you’ve get to set an age limit somewhere”, and settle for an arbitrary, exceptionless AOC. Too bad for those minors that wouldn’t be harmed by sex, at least under some circumstances. But that’s (to use your words) “the grounds on which the sex is illegal in the first place”.
Next, the statutory change that I suggest would not acknowledge (to use your words again) that all “teens are mature enough to consent to sex”. It merely acknowledges that some are mature enough - at least mature enough that sex with an appropriate person, under appropriate circumstances won’t be harmful. Who decides? The same person who presently gets to make all kinds of similar decisions for the minor - his parent. There’s really nothing bizarre about that basic concept. Same thing as driving a car, or getting married. Peggy Sue wants to get married, or buy a car, or drive that car tonight? If Peggy Sue is 16, she doesn’t get to do any of those things if her parents decide otherwise. Peggy wants to drive to school, or on Sunday afternoon? Parents can say “go ahead”. Peggy wants to drive to the rave, with 5 friends, and be out until 3 a.m.? Parents can refuse permission if they think it’s a bad idea. And they can still refuse permission, even if they let her drive to school yesterday. Same with marriage. Peggy gets engaged to unemployed 29 year old drug-addicted heavy metal drummer Wayne, who lives in his Mom’s basement, and her parents can refuse to allow the marriage. Replace Wayne with Adam from my OP, and the parents can bless the marriage if they think that it’s a good decision that won’t harm Peggy. Logically, why should sex be treated any differently? “Mom, I’ve decided to work as a call girl this summer.” “No.” “Mom, I want to drop out of high school and move in with Wayne.” “No.” “Mom, you know Adam? The guy I’ve been dating for a year that you’ve met 12 times? We’d like to start sleeping together and I need to make a doctor’s appointment to discuss birth control.” “Okay, Peggy, we need discuss it some more, but if that’s what you want, give Dr. Brown a call. Do you need the car to drive to the appointment?”
- Yes. 2. Because the statute would provide that such sex without parental consent remains illegal - that consent by the minor is not enough by itself. Such a statute would be completely within the powers of a state legislature. 3. The teen is able to actually consent, but that consent isn’t legal - or more accurately, doesn’t make the sex legal - without parental consent as well. 4. Precisely. (but the minor still has to consent, too.)
But it seems you are very comfortable relying on the universal good sense of parents if you give them the opportunity to okay underage sex.
Are you concerned about parents consenting to sex when they shouldn’t, or parents not consenting to sex when they should?
You stated that the status quo depends on parent (and others) having good sense.
How does allowing parents the leeway to permit or deny sex for their offspring change the requirement of good sense?
Would the parents who don’t show good sense now suddenly develop good sense if their permission were sought? I don’t see it.
Is there an answer to my question somewhere in here? Answer my question and I’ll answer yours (to the extent I can understand it.)
You said:
Your proposal gives parents more discretion. You don’t want to rely on the “good sense” of parents, but your proposal would rely on the “good sense” of parents even more, since some parents would still withhold permission and potentially spur prosecution while others would wrongly give permission, and still others would deny they gave permission.
How does allowing parents discretion lessen reliance on their “good sense”?
So your answer is “both”?
I could be nitpicking here, but minors are able to give consent now in all states and certainly in Canada.
Here in Canada for example, depending on the province, the age of majority is either 18 or 19, but a 14 year old can have legal sex with anyone except someone who has a relationship with him/her of trust or dependancy.
If my 14 year old daughter decides to have a sexual relationship with a 29 year old coke addict, there’s nothing I can do about it.
Legally.
I’m asking you for clarification of your own OP and subsequent statements. One of the reasons you dislike the status quo would also be true of the changes you suggest. Can you please explain why you do not see it that way? I do not have a firm position on any of this. I probably will not form a firm position on any of this. I am asking you to clear up what I see as a major disconnect.
I’m being nitpicky right back, but this isn’t true, at least if www.ageofconsent.com is correct. There are a few states where the AOC is 18. Your main point is accurate, though. AOC does not necessarily equal the age of majority. AOC tends to be younger in most places, sometimes much younger, as your Canada example shows. I (and others here) have been using minor as a shorthand term for person under the age of consent, but (as you point out), there’s a difference.
I don’t know anything about Canadian law, but a websearch agrees with you about the Canadian AOC. Is the last part really true, though? Even if you ignore the point that you might be able to get a cokehead busted for violating drug possession laws, doesn’t Canada have something akin to contributing to the delinquency of a minor? If not (and again, I don’t know Canadian law, and I’m not even particularly knowledgable about American criminal law), then you may be correct about having no criminal recourse against the cokehead. But don’t you still have the ability as a parent of a minor to legally restrict her activities and prevent her from seeing him to some degree? Yes, easier said than done, I admit.
Ha.
Thanks for a most-welcome linear post.