Rick Hills posts two recent cases which illustrate how American law often addresses teenage (or adolescent) sexuality in unusual ways:
Item #1: Two teenagers -- a sixteen-year-old girl and a seventeen-year-old boy -- took racy pictures of themselves with their cell 'phones. They did not distribute the photos to anyone else. Under state law, these photos constituted child pornography -- and the teenagers were prosecuted under state law either for producing, directing or promoting a photograph featuring the sexual conduct of a child or possessing child porn. (see news item) The underlying behavior, incidentally, was not illegal under Florida law, which permits teenagers of this age to have sexual intercourse with each other (although not with an adult).
Item #2: A 12-year-old and a 13-year-old have sexual intercourse. Under Utah law, sexual intercourse with an individual under the age of fourteen is a second-degree felony. State prosecutors charged both children with sexual abuse of a minor, making the individuals simultaneously perpetrators and victims of sexual assault. (See state court opinion)
My visceral reaction to both cases is that the law has gone mad. On cooler reflection, it occurs to me that, in the area of adolescent sexuality, our criminal laws perpetuate norms that are at odds with the behavior of an enormous percentage of ordinary high school and middle school students.
The first case is an ever-increasing fact pattern. Cell phones and webcams have made youthful indiscretion a serious crime. The cell phone child porn also shows how odd American law is concerning age of consent. In states across the country, 17 year olds can consent to have sex and even marry. Yet, they are unable to consent to have racy pictures taken of them. I'm not saying this inconsistency is necessarily undesirable. However, it is definitely an area of tension underlying our notions of consent. I'm all for punishing possession of these images as child porn if they are possessed by third parties. However, I see no reason to punish the foolish teenagers as distributors or possessors.
The second case is a hypothetical I pose to my Criminal Law class. It is important to note that neither person in the case could be prosecuted for statutory rape (because they won't meet the difference in age requirement). However, without a Romeo and Juliet law in the jurisdiction, the actions of the two adolescents are technically rape. For my confused students, I explain that as far as the law is concerned, it is no different than two persons getting in a fight with each other. These cases are clear examples where prosecutors should exercise discretion. The stories also show why Romeo and Juliet laws should be passed.
Recent Comments