Age of Consent

After Rick Hills posted this insightful post at Prawfsblawg about strange results of American age of consent law, I took the opportunity to talk about the oddities described in Hills's post.  I'm not sure if Hills's post also inspired Eugene Volokh, but he launched into a trifecta of posts over the weekend about the age of consent and Romeo and Juliet laws.  From the first post:

Many states have lower ages of consent for sex among minors than for sex between adults and minors. Thus, two 16-year-olds having sex may be legal, but not a 30-year-old having sex with a 16-year-old.

I share the intuition behind this distinction, but I wonder whether my intuition is right. For instance, I would think that quite a few 16-year-old girls who are interested in sex would rather be involved with 30-year-old men than with other 16-year-olds; the 30-year-olds are more likely to know what they're doing both sexually and romantically, plus are more likely to be much more emotionally mature as well as interesting to talk to....

Now perhaps my skepticism here is unjustified. I wouldn't mind being persuaded that it is unjustified, since as I said I find the distinction between "Romeo and Juliet" sex (the laws allowing sex between minors who are close together in age are often called "Romeo and Juliet" laws) and adult/teenager sex appealing -- though look what happened to Romeo and Juliet. I just wonder whether we can be confident enough in this distinction.

In response to a comment to the first post, Volokh then followed with this reasoning:

A commenter writes, "Abortion rights advocates declare any [pregnant] female is mature enough to obtain an abortion without parental consent. That means girls are mature enough to make [decisions] in picking sex partners."

I don't think this works. Judgments about age cutoffs for various behavior (driving, sex, smoking, alcohol consumption, abortion, other medical procedures, contracting) rightly turn on a variety of factors, including the cost of prohibiting the behavior as well as the cost of immature behavior. We let people drive before we let them drink because not being able to drive imposes a much greater burden on older teenagers (and on their parents and prospective employers and educators) than does not being able to drink. Likewise, stopping a girl from having an abortion could harm her future life much more than stopping a girl from having sex would.

Now of course one could argue that letting girls have abortions without parental consent harms their future lives, too, or that it violates their parents' rights or whatever else. My point is simply that one can't just assume that the age cutoffs for the decision to have an abortion must be the same as the age cutoffs for sex, drinking, smoking, driving, or contracting.

And lastly, Volokh turned to the value of Romeo and Juliet laws:

Some responses to my post about age of consent and Romeo-and-Juliet laws have said something like this:

The question is not whether the behavior is harmful and wrong (in both cases, the     answer is equally yes). Instead, it is whether someone is responsible. 16 year olds are not mature enough to decide to have sex; 30 year olds are. Thus a 30 year old can be punished for having sex with a minor, but a 16 year old can't. I don't really see the problem here.

This is an interesting theory, but I'm skeptical about it....

There might be a good explanation for this rule -- I do think that sex with 13-year-olds is likely to be much more morally troubling than sex with 15-year-olds -- but concern that the 19-year-old isn't mature enough to be punished for having sex with the 15-year-old, though the 18-year-old is mature enough to be punished if the other person is 13, doesn't seem like a good explanation. The focus is on the age gap's causing the relationship to be somehow improper, not on whether the defendant is old enough to be held criminally responsible.

This last portion in particular indicates a particular oddity of statutory rape law. Statutory rape statutes include not just an age of consent provision - they also include a difference an age provision as well.  I think these two parts of the statute serve different, but related functions. The age of consent provides a bright line under which society is skeptical that a person can consent to sexual relations. The difference an age portion recognizes that age yields power, emotional, physical, and mental advantages to an older person. In neither case are these insights universal. There are many very mature 15 year olds and there are many naive and immature 20 year olds. Nonetheless, applying a bright line rule is much easier than doing a case-by-case analysis. A case-by-case rule would be difficult to enforce, require dubious expert testimony, and tend to under-punish the crime of statutory rape. I don't think there is a strong moral underpinning to ages of consent. Rather, the rules are an exercise in efficiency and recognition that clear rules provide the best alternative for application of the laws.