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An Odd Grey Area in the Law of Sex

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By Paul from NoodleFood,cross-posted by MetaBlog

Here's a story from the Denver Post which raises some interesting issues about prosecuting children for having sex with one another:

Utah Supreme Court justices acknowledged Tuesday that they were struggling to wrap their minds around the concept that a 13-year-old girl could be both an offender and a victim for the same act -- in this case, having consensual sex with her 12-year-old boyfriend.

The Ogden, Utah, girl was put in this odd position because she was found guilty of violating a state law that prohibits sex with someone under age 14. She also was the victim in the case against her boyfriend, who was found guilty of the same violation by engaging in sexual activity with her. "The only thing that comes close to this is dueling," said Associate Chief Justice Michael Wilkins, noting that two people who take 20 paces and then shoot could each be considered both victim and offender. And Chief Justice Christine Durham wondered if the state Legislature had intended the "peculiar consequence" that a child would have the simultaneous status of a protected person and an alleged perpetrator under the law.

...State authorities filed delinquency petitions in July 2004, alleging that each had committed sexual abuse of a child, a second-degree felony if committed by an adult. The girl appealed the petition, saying her constitutional right to be treated equally under the law had been violated. Her motion noted that for juveniles who are 16 and 17, having sex with others in their own age group does not qualify as a crime. Juveniles who are 14 or 15 and have sex with peers can be charged with unlawful conduct with a minor, but the law provides for mitigation when the age difference is less than four years, making the offense a misdemeanor. For adolescents under 14, though, there are no exceptions or mitigation and they are never considered capable of consenting to sex.

I do agree with the general principle that children below a certain age cannot genuinely consent to sex with an adult. But I'm not sure what the proper legal approach should be for two such children who engage in sex with one another.223646063

http://ObjectivismOnline.com/archives/003223.html

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First of all, from a biological point of view - a person who has reached puberty is by definition ready for sex. For most of human history, when life spans were considerably shorter, people were having sex at what we would now consider "too young". None of us would be here if our distant ancestors waited until 18 years old to have sex. I think it is foolish to pass laws which attempt to go against human biology. Situations like these should be considered on a case by case basis, instead of blindly following the letter of the law. After all, there is nothing magical about turning 18 years old which automatically confers some sort of "responsible adult" threshold.

In this particular instance, what is not mentioned in the article is how this case came about in the first place. Who discovered that these 2 were having sex? Who filed the complaint with the authorities? Since it seems that these 2 had consensual sex, the bigger issue is why is this a matter for the state? By bringing up charges against them, far more harm will be done than if the parents had simply admonished or kept them from doing it again. I suspect that this is a grand standing political act by some overzealous bureaucrat (be it a cop, prosecutor, judge, or someone from child protective services, or possibly all of them).

The BIG question is: who was harmed by the original act of consensual sex? (Answer: no one). Who is harming them now? (Answer: the state).

Edited by stonebuddha
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I agree; I do not personally believe that it's a good thing for them to have sex at such a young age, because I think they would likely lack the mental maturity to deal with it in a proper way. But that is an issue between these children and their parents, and it is ridiculous that it can be seen as a crime. It is none of anyone's business what they do, except their own and by extension, as minors, their direct guardians/parents. But forcefully preventing them from having sex is a much greater moral crime than the thing it supposedly resolves, and I think this is definitely one issue where even though it might in many cases be immoral (in the sense that it's bad for those involved), it shouldn't be illegal.

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I agree with Stonebuddha and Maarten. That this is considered a matter for governmental involvement is a sign of the Puritanism and Christian fundamentalism that has some strength in this country. Interestingly, these fundamentalists blather endlessly about how much they are allegedly "pro-family." Well, the proper pro-family approach in this case is for the government to declare that there is no basis for prosecution, and let this situation be resolved by the parents.

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First of all, from a biological point of view - a person who has reached puberty is by definition ready for sex.
That's not what "ready for sex" means. That would be more appropriate as a definition "capable of becoming pregnant or making pregnant".
I think it is foolish to pass laws which attempt to go against human biology.
That's true, but it's also not a fact of human biology that people must have sex before age 18 in order to survive.
Situations like these should be considered on a case by case basis, instead of blindly following the letter of the law.
That's a fundamentally offensive view of ethics -- the idea that there are no principles and that everything should be decided on a subjective or anarchistic whim.
The BIG question is: who was harmed by the original act of consensual sex?
The BIG question is, what constitutes consent? That is exactly what this case is about. Lemme help you out a bit here. If a 12 year old has "consented" by having sex with another 12 year old, and nobody used a knife or fist or beats anyone, then the 12 year old is also capable of "consenting" to have sex with an 18 year old, or her father. And if a 12 year old can "consent" to having sex with a 12 year old, or her father, or some stranger off the street, then so can a 10 year old. Or an 8 year old.

Anyhow, in response to Diana's point, I think the point which the law isn't quite getting in Utah is that the mens rea requirement for culpability is also not satisfied. This is of course because the law reflects the legal positivist view that the law is the law because it's the law, so contradictions need not be resolved.

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The BIG question is, what constitutes consent? That is exactly what this case is about. Lemme help you out a bit here. If a 12 year old has "consented" by having sex with another 12 year old, and nobody used a knife or fist or beats anyone, then the 12 year old is also capable of "consenting" to have sex with an 18 year old, or her father. And if a 12 year old can "consent" to having sex with a 12 year old, or her father, or some stranger off the street, then so can a 10 year old. Or an 8 year old.

Anyhow, in response to Diana's point, I think the point which the law isn't quite getting in Utah is that the mens rea requirement for culpability is also not satisfied. This is of course because the law reflects the legal positivist view that the law is the law because it's the law, so contradictions need not be resolved.

But wouldn't either of the people involved in the act then need to object to the events that had taken place? I mean, drawing a hard line here about what age someone needs to be before they're allowed to have sex (which is really what this comes down to, because apparently the government can determine for someone when they can consent to sex) seems much more unjust than requiring proof that coercion was involved and the minor didn't act of their own volition. Otherwise, there should be a clear way in which a minor can prove that they are capable of making this decision; I don't think there currently is something like that.

I do think it makes sense to draw a line somewhere, but there has to be an easily verifiable mechanism in place to allow people who are not old enough to make such decisions if they can prove they can make them.

But more fundamentally than that, there is still no victim in this crime, which indicates that the law forbidding this is just ridiculous.

*edit* Because I do think it comes down to a choice you have to make as to how limiting you want to be. Given that the government's job is just to protect the rights of its citizens, any law that professes to do so must take into account that in some cases the law itself is preventing people from exercising their rights, and I think that is a worse injustice. I would rather have a case where it is more difficult to prove that it is indeed a violation of the child's rights, than the current situation where non-adults are prevented from making decisions they are fully able to make; because in that case they are not fundamentally different from adults and the law should respect that.

Edited by Maarten
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But wouldn't either of the people involved in the act then need to object to the events that had taken place?
No, because consent doesn't simply mean "lack of explicit objection". To consent to an act, you must understand what the act is, and choose to engage in the act of your own free will, excluding any possibility of your free will being overborn.
But more fundamentally than that, there is still no victim in this crime, which indicates that the law forbidding this is just ridiculous.
How do you determine that there was no victim? Take the 8 year old girl who doesn't object when her father has sex with her. Under the "no express objection" standard, there is no victim, and I presume you'd say that the law is absurd. To be consistent you would have to hold that all law prohibiting actions against another person are absurd if they don't include an "action in defiance of express objections" clause. The law itself is essentially correct, and in this case the law failed to grasp that the principles which say that the child is not capable of sufficiently grasping the nature of the act and therefore cannot consent would also hold that the child is not capable of sufficiently grasping the nature of the act and therefore not responsible for the action.
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How do you determine that there was no victim? Take the 8 year old girl who doesn't object when her father has sex with her. Under the "no express objection" standard, there is no victim, and I presume you'd say that the law is absurd. To be consistent you would have to hold that all law prohibiting actions against another person are absurd if they don't include an "action in defiance of express objections" clause. The law itself is essentially correct, and in this case the law failed to grasp that the principles which say that the child is not capable of sufficiently grasping the nature of the act and therefore cannot consent would also hold that the child is not capable of sufficiently grasping the nature of the act and therefore not responsible for the action.

I see your point. But still, would you agree that it is a good idea to make it possible for someone who is below the age of consent to prove that they do fully understand the consequences of their actions? I mean, it is definitely possible that is the case, because various people mature at different rates. Just because most people are not capable of making that decision at a given age still allows for the possibility that some can. Shouldn't there be a way for those people to prove that they can make it, in an objective way?

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But still, would you agree that it is a good idea to make it possible for someone who is below the age of consent to prove that they do fully understand the consequences of their actions?
I do: I support the concept of an exceptional "legal adult" given appropriate proof. The obstacle is, of course, that it's hard to construct the required test. I don't think it's insurmountable, but the lack of such a test would have to be surmounted. As a thought exercise, would you care to design a test that constitutes satisfactory proof of mental adulthood?
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I do: I support the concept of an exceptional "legal adult" given appropriate proof. The obstacle is, of course, that it's hard to construct the required test. I don't think it's insurmountable, but the lack of such a test would have to be surmounted. As a thought exercise, would you care to design a test that constitutes satisfactory proof of mental adulthood?

Well, it's kinda difficult to do that, especially in light of the fact that even many adults cannot really judge the consequences of their actions very well. One way to do it, would be by having an expert in psychology talk to the individual in question for an extended period of time. I think that is the easiest way to determine such things; all that remains is finding the proper criteria for making such a judgment.

I think one of the things they need to show is the ability to explain the difference between short term consequences of actions and longer term ones. With regards to sex, if they can explain what all the main considerations are that one normally needs to make when entering into a relationship with another person, in their own words, that would be a good indication that they understand what they are doing. This could also include examples of things that are bad, and examples of what they see as good.

The same could be done with other areas in which they need to demonstrate their ability to know the consequences of their actions. Like with things like agreeing to contracts, and what that entails, and anything else one may need to be able to do as an adult that a child cannot.

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a 13-year-old girl could be both an offender and a victim for the same act

A peculiar kind of duality exists in all children's rights issues. When you prevent your child from running across a busy street, you are both using force against it and upholding its right to its life.

"The only thing that comes close to this is dueling," said Associate Chief Justice Michael Wilkins, noting that two people who take 20 paces and then shoot could each be considered both victim and offender.

If it were up to me, Associate Chief Justice Michael Wilkins would have lost his job the second after he uttered this statement. A duel is a matter between two consenting adults; neither of them is a victim or an offender because there is nothing even resembling a crime involved.

A much more appropriate analogy would be: two drivers being equally at fault in an accident where both of them get seriously injured.

I'm not sure what the proper legal approach should be for two such children who engage in sex with one another

To the extent that they could have prevented it, a child's parents should be held responsible for any harmful act done by a child--whether it is the child harming itself or infringing on the rights of other grown-ups or children. To the extent the child was old and knowledgeable enough to understand the issues involved, yet chose to perform the harmful act nonetheless, it is the child's and not the parents' responsibility.

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When I originally stated that situations like these should be determined on a case by case basis, I am not advocating a "fundamentally offensive view of ethics -- the idea that there are no principles and that everything should be decided on a subjective or anarchistic whim." I don't believe these two kids violated the underlying spirit of the original law - which is to protect against adult/child sex.

My point is that when you accept the premise that the state should be involved in matters that can be resolved peacefully between private individuals, you are opening the door to tyranny & abuse. We still don't know how or why this situation came to be known by the "authorities". Did one set of parents have a grudge against the other and saw no other way than to seek the blunt instrument of the state to settle the score?

Some of you are saying that if these 2 kids can somehow prove consent by demonstrating that they both understood the consequences of their actions, then no crime is committed and hence no punishment.

What if instead you had two mentally retarded 30 year olds having sex - both of whom had less intellectual faculties than the two kids in the story? Would you say that it was still the proper role of the state to bring them up on charges & determine if there existed consent by having them somehow demonstrate that they understood the sexual act? Should the state round up sexually active teenagers under 18 to see if they meet the "exceptional legal adult status"?

I think the "bad guys" in the story are the agents of the state who at every step decided that this needed to be taken to the next level. Everyone from the social worker, to the arresting officer, to the district attorney, to the judges, all the way to the chief justices who saw fit to punish two innocent individuals who harmed no one.

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