Markel's Sex Ed License

A little while ago, I posted about Dan Markel's questions about a statutory rape case and about the age of consent for marriage.  As part of that discussion, Markel raised the possibility of issuing a Sex Ed License to allow certain types of behavior which would otherwise be prohibited.  At PrawfsBlawg, Markel expanded upon his proposed licensing idea.  I've been a little slow to respond due to other commitments, but, now that I have a little time, I want to engage the interesting ideas he discusses.

Markel's post is quite lengthy, so you should check out the whole thing to get a good understanding of his proposal.  I've tried to include some of the most important segments below (especially as they are relevant to my replies):

I described the sex-ed license quite quickly: minors above a certain age (e.g., above 14, 15, or 16?) wishing to have consensual sexual relations with other minors above that age or with adults should have to take a sex-ed course whose completion gives them a license to have sexual relations and possession of the license would, in conjunction with other conditions, work as an affirmative defense against prosecutions for statutory rape. This sex-ed license would cover information about safe sex, the risks of pregnancy, sexually transmitted diseases, and genetic defects arising from consanguineous relations.

The three other conditions that would apply (or that could be made to apply) include

a) a ban on sex between asymmetrical dependents when one is a minor;

b) a ban on such relations when the minor and the other person(s)

i) live in the same residence or

ii) exist in a relationship of unequal authority, e.g., one person occupies a supervisorial or custodial role to the other....

Relatedly, some comments raised the concern that emotional intelligence is a key factor for crediting the capacity for teens to meaningfully consent and that some teens have it and some don’t -- indeed, some noted that adults (ahem!) lack emotional intelligence too. No doubt, emotional intelligence is a factor in sex with and between minors. A test may have limits on sussing out more than knowledge about health facts, but I suspect some questions can be used to assess these some of these other factors too. There are, after all, industries and armies of experts devoted to the design of psychological tests. If hypothetical scenarios were given and teens picked an answer too close to the shade of danger, then that would conceivably be a basis for failing the test-taker.

Several objections to the proposal were made in the comments (and Markel outlines comments made by students).  I think the idea is intriguing in many regards, but I have two other thoughts I want to add to the mix.

First, I wonder what the license proves.  Having recently taken an Illinois driving test, I was reminded of how little knowledge is actually reflected in such exams.  A Sex Ed License of a similar sort would probably demonstrate very little knowledge.  And if, like driving tests, a person could take it multiple times, it might only reflect the ability to take that test.  Perhaps Markel envisions something more sophisticated.  However, increased sophistication may make the exam increasingly irrelevant as it seems to apply in so few cases anyway.

Second, I think Markel might be overstating the role of knowledge in the formation of our age of consent laws.  Maturity (emotional and otherwise) might be the more important factor in questioning relationships with large imbalances in age and power.  Knowledge is a component of maturity, but I'm not sure it is a definitive one.  You can fill an average 15 year old's head with every bit of information about STD's, pregnancy, and safe sex and it still doesn't mean they are ready for a relationship with a 30 year old.  Markel addresses a different form of this argument in the excerpt above.  He suggests a psychological component of the test, but I'm not really sure how this would/could work.  Our ability to assess risk or problems in this area is probably pretty poor.  Further, I'm not sure you could find an agreed upon definition of what it takes to pass the psychological component.

So, while I think it is interesting to consider Markel's idea based upon an analogy to a driver's license, I think there needs to be greater detail on certain key components to truly assess its viability.

Comments

[Maggie]

The only protection this would seem to provide would be sex between two underage persons. If both were "licensed," prosecution would be discouraged.

So... what if one is an adult. Are they going to ask to see the person's sex license? What's going to stop the same old "she said she was 18" excuse?

Or, what if both are underage but only one has the sex license. The licensed one gets off the hook but the other doesn't? Or should the licensed person bear additional responsibility for having intercourse with an unlicensed person since they're the one who has the responsibility that comes with education?

Will there start being fake sex licenses just like fake ID's?

The fact that two parties are required for sexual intercourse seems to me to take this firmly out of the driver's license analogy. After all, I don't need a license to sit in the passenger seat. The other major issue is that unlike getting your driver's license, getting a sex license doesn't strike me as something you'd necessarily plan for at a certain age.

[abyss2hope]

The biggest problem I see with this idea as proposed when it relates to people of differing ages is that it seems to see the problem behind statutory rape charges as being caused by the child or younger child's immaturity.

Noteably, I didn't see any requirement that an adult would be required to have a sex-ed license. This lack is downright dangerous. Most people think of sex offenders as being knowledgable about sex but many of them have an appalling lack of knowledge, especially in the area of sexual boundaries.

The requirements of any such license would have to include thorough training on what sexual activity is illegal and why so that person cannot claim ignorance of the law and may actually understand and respect other people's sexual and personal boundaries.

The other problem is that if a young teen truly wanted to have sex with someone their same age, this license would leave them vulnerable to exploitation by an older teen or adult. The only way to possibly prevent this is to have those planning to have sex mutually register their intentions.

Many times statutory rape charges are made after a minor reports being raped but where the defendant claims, "it was consensual." Until the courts do a better job with rape cases this type of reform is going to allow more rapists and abusers to get away with their crimes.