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Thursday, February 07, 2008

Sex with minors, sex between minors

In the news today is the arrest of a 38 year old man, a Rhodes Scholar and HLS grad who is a high-ranking Mass. gov't official, for allegedly masturbating and performing oral sex on a 15 year old male in a steam room at a resort in Florida. (HT: ATL) I'm less interested in the facts here and more interested in the normative legal questions posed by this conduct and conduct similar to but different to it as posed in the following scenarios.  What reactions do you have regarding what you think the law should be in a liberal democracy under the following conditions, and why?

My tentative reactions appear after the jump. For your answers, please make the assumption that homosexual conduct should be treated no differently than heterosexual conduct, unless you articulate why in a manner that the law in a liberal democracy should respect.

a) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and is unrelated to the offender

b) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and is the first cousin of the offender but never met the offender beforehand

c) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and is the first cousin of the offender, but lives in the offender's home in Mass.

d) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and is the brother of the offender living in the same residence

e) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, is the brother of the offender and lives apart from his brother in different states.

f) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and the unrelated offender is not 38, but is 16 years old, also of average maturity and intelligence,

g)   boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and the offender is 16 years old, also of average maturity and intelligence, and is the first cousin

h) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and the offender is 16 years old, also of average maturity and intelligence, and is the brother of the boy but lives in a different state.

i)  boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and the offender is 16 years old, also of average maturity and intelligence, and is the brother of the boy but lives in the same home.

j) boy is actually 24, of average maturity and intelligence for his age, invited and consented to the actions, and is the brother of the offender living in a different state.

k) boy is actually 24, of average maturity and intelligence for his age, invited and consented to the actions, and is the brother of the offender living in the same residence

l) change boy "victim" to female in the previous scenarios

m) change offender from male to female in previous scenarios


a) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and is unrelated to the offender

Markel: should be permissible if boy has rec'd a sex-ed license (described below). (Update: my answers assume that the unrelated offender is not in a position of presumptive authority over the 15 year old boy, such as a teacher or boy scout troop leader).

b) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and is the first cousin of the offender but never met the offender beforehand

Markel: should be permissible if boy has rec'd a sex-ed license (described below)

c) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and is the first cousin of the offender, but lives in the offender's home in Mass.

Markel: should be viewed skeptically because a presumption of coercion should exist regarding X's  sexual relations with a minor living in the same home as the offender.

d) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and is the brother of the offender living in the same residence

Markel: should be viewed skeptically because a presumption of coercion should exist regarding X's  sexual relations with a minor living in the same home as the offender.

e) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, is the brother of the offender and lives apart from his brother in different states

Markel: should be permissible if boy has rec'd a sex-ed license (described below)

f) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and the unrelated offender is not 38, but is 16 years old, also of average maturity and intelligence

Markel: should be permissible if both boys have rec'd a sex-ed license

g)   boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and the offender is 16 years old, also of average maturity and intelligence, and is the first cousin of the boy

Markel: should be permissible if both boys have rec'd a sex-ed license

h) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and the offender is 16 years old, also of average maturity and intelligence, and is the brother of the boy but lives in a different state.

Markel: should be permissible if both boys have rec'd a sex-ed license

i)  boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and the offender is 16 years old, also of average maturity and intelligence, and is the brother of the boy but lives in the same home.

Markel: should be viewed skeptically because a presumption of coercion should exist regarding X's  sexual relations with a minor living in the same home as X.

j) boy is actually 24, of average maturity and intelligence for his age, invited and consented to the actions, and is the brother of the offender living in a different state.

Markel: should be permissible

k) boy is actually 24, of average maturity and intelligence for his age, invited and consented to the actions, and is the brother of the 38 year old offender living in the same residence

Markel: should be permissible

l) change boy "victim" to female in the previous scenarios

Markel: My answers would be the same. However, the sex-ed license becomes even more necessary in the context of relations between heterosexuals because of additional concerns of pregnancy and genetic defects arising from incestuous relations. Thus, all minors above a certain age (e.g., above 14) having consensual sexual relations with other minors 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 work as an affirmative defense against any prosecution based on sexual relations between persons not living in the same residence. This sex-ed license would cover information about safe sex, the risks of pregnancy, sexually transmitted diseases, and genetic defects arising from consanguineous relations.

m) change offender from male to female in previous scenarios

Markel: no difference in the answers

Posted by Dan Markel on February 7, 2008 at 04:31 PM in Article Spotlight, Criminal Law, Current Affairs, Dan Markel | Permalink

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» Markel's Questions from Sex Crimes
At PrawfsBlawg, Dan Markel looks at a recent story of a 15 year-old boy having sex with an older man. This leads Markel to post a whole bunch of questions:What reactions do you have regarding what you think the law [Read More]

Tracked on Feb 7, 2008 10:54:17 PM

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m) Change "consented to" to "did not directly object"
n) Change "consented to" to "did not put up an actual fight"
o) Change "consented to" to "assented, but felt he had no choice"
p) Change "consented to" to "assented, but later regretted"

Posted by: Another perspective | Feb 7, 2008 5:58:26 PM

Hmm. I have a different take, which I've mentioned here

I don't agree with you, Professor Merkel.

Posted by: Vanceone | Feb 7, 2008 6:18:48 PM

Another perspective, these are interesting questions, but as you realize they all go to whether consent is present or absent in one form or another. I was trying to generate reactions based on the stipulated presence of consent. (I recognize that the state would view that consent skeptically under my proposal if the persons lived in the same residence.) Would your concerns be obviated if a verbal or written expression of consent were made an affirmative requirement (and had to be publicly filed with the state) for all those minors having sexual relations for the first time with the other person? I recognize that wouldn't address some of the situations you're suggesting. What would?

If you're doubtful that consent is possible, then I think the alternative rule is to ban all sexual relations with and between minors of a certain age, regardless of family status or co-residency of the offender and the "victim." That would be a second-best alternative I think.

Posted by: Dan Markel | Feb 7, 2008 6:35:10 PM

Hi Vanceone,
you don't address the issue of unrelated minors over a certain age (say 17?) having sex with each other. Do you think they can meaningfully consent to each other? If so, why not a 17 year old male and 22 year old female?

I'll leave the other arguments for now. Bear in mind that the concerns you raised about incestuous relations from a genetics basis are underinclusive (we don't require genetics screening for other at-risk groups) or irrelevant (non-procreative activities).

Dan Markel (not Merkel)

Posted by: Dan Markel | Feb 7, 2008 6:49:03 PM

Sorry about spelling your name wrong, Professor! I apologize profusely. I've added a section to my original post addressing your observations. Thanks for taking the time to read over it and respond!

Posted by: Vanceone | Feb 7, 2008 7:15:27 PM

I'd agree with you, but I think that whenever their is a significant age gap, there's an elevated chance of coercion, since children are socialized to obey adults and view adults as people who 'know better'. A situation of a much older brother who lives in a different home sounds more coercive to me than a brother only a year older who lives in the same home. Perhaps sexually activity between adults and minors should also be viewed as presumptively, but rebuttably, coercive.

Posted by: Ruby | Feb 7, 2008 7:27:37 PM

I would broadly agree with your answers, except that I do not agree a "sex-ed license" should be required, because the idea strikes me as impractical.

I differ in three regards. First, I think sexual relations between an adult and a closely related minor (e.g. a sibling or child) should in all cases be prohibited. Second, I would absolutely prohibit sexual relations between a minor and an adult who is in a position of authority over the minor (e.g. possibly situation c, depending on the relationship), rather than have a presumption of coercion.

In both these cases, I disagree with you because I think there is a very real danger that the minor will have been improperly manipulated or pressured into consenting. I think a blanket prohibition is better than a presumption for a few reasons. First, a blanket prohibition will make it less likely that the victim is required to testify in a trial, which can exacerbate the psychological harm the victim suffers. Secondly, I think that in a significant number of cases an accused who is in fact guilty will be able to rebut the presumption, especially through false testimony given by the victim because of further manipulation by the offender. Finally, I think in many cases it could be difficult for an adult to determine with any great degree of certainty how your rule would be applied.

I recognize that my proposal would ban some relationships where there is proper consent. I think this negative is outweighed by the superior clarity of my rule, and the superior protection it will provide in some cases where such consent is lacking. In my weighing of these factors I have, fairly or unfairly, attached much less value to consensual sexual relations between an adult and a minor than I would to a similar relationship between two adults.

Finally, I do not necessarily agree with you that relations between closely related persons should be legal if there is consent. I haven't thought about it enough to have any concrete suggestions, or even enough to be certain my objections are based on something more substantial than my own personal disapproval of such relationships.

Posted by: Nathan | Feb 7, 2008 7:43:36 PM

Thanks for these useful comments:
a) Ruby, the age gap issue seems peculiar to me. Either we look for consent and respect it, or we don't credit the ability of teens to consent.

If teens over a certain age have the capacity to consent meaningfully, then we need to reassess the places elsewhere in the law where that capacity for reflection and autonomy is not respected. Conversely, we should be mindful of potential inconsistencies: if we respect teens' capacity for sexual choices then maybe that has implications for whether they should as a class be eligible for severe punishments reserved for adults too (e.g., death penalty). (I should hasten to add that I'm against the death penalty as punishment generally, but there is this weirdness here.) I'd be curious what the relevant arguments are that distinguish respect for some choices made by teens but not for other choices.

That said, I'm not opposed to a presumption that adults having sex with minors is coercive; I'd be fine if the presumption could be always overcome by compliance with a requirement insisting on lodging a document with the police that X who is 16 is having sexual relations with Y, who is over 18.

b) Nathan, with adults and their minor children, which is a hypo I didn't pose, my view is that it would be prohibited under a more general ban regarding sex between asymmetrical dependents, regardless of a familial (blood-line) status. With respect to adults and their minor siblings, I did pose that hypo, and my answer to that was to presume coercion if they lived in the same residence. If there was a form of custodial relationship, or supervisor-supervisee, teacher-student, etc, I'd be ok with a ban on those relationships. The presumption operates for those living in the same home in the absence of an obvious power imbalance. But the lack of clarity to the adult would be cured by the answer I gave to Ruby: provide for some safe harbor provision by which the two parties can jointly declare their consent to the police (or some other gov't body) in advance of any activity. Maybe there even has to be a 3 day wait before the activity is permitted.

This way, sex with minors is viewed as permissible but regulated, to avoid the issues of coercion that obviously trouble decent people contemplating the legitimate autonomous choices of teens. Does this seem far-fetched? Perhaps, but it's not much different than the way we treat teens who want to drive cars or the way some states regulate the purchase and ownership of guns. As the good man says, "The world as it is is not the world as it has to be."

Posted by: Dan Markel | Feb 7, 2008 9:07:59 PM

I know that this isn't a terribly intellectual answer, but I think that almost all of these scenarios should be illegal, not even because I doubt teenagers' capacity to consent meaningfully (though I have my doubts), but simply because of the moral revulsion I feel towards adult-minor sex. And I strongly suspect that such feelings or intuitions play a significant role in the law being the way it is. If, then, one were to somehow show that teenagers do have the capacity to consent meaningfully, would the continued presence of these laws on the books come into conflict with liberty interests? Yes, but then, I don't happen to think that Lawrence v. Texas is good law. The idea that the state may not regulate 'victimless' crimes on the basis of morality if its doing so will substantially impede one's liberty is simply one that I don't see in the Constitution, explicitly or implicitly. It may logically follow from, or be consistent with, a certain understanding of the First Amendment or of due process, but just because one can abstract, from particular prohibitions that are in the Constitution, a general political philosophy (liberalism) that would suggest or lead to other prohibitions that aren't there, it doesn't follow, in the first instance, that those prohibitions are constitutional principles; in the second, a different reading of the Bill of Rights might lead you to completely different conclusions. I'm not an originalist by any means, but I think reading a principle of that magnitude into the Constitution, especially when so many Americans strongly disagree with it, is never justified. I also think that the understanding of criminal law it assumes, namely that criminal law is rooted in a purely utilitarian or consequentialist sort of ethics, is terribly flawed and in serious tension with any notion of retributivism, which after all underlies, among other things, the Court's Eighth Amendment jurisprudence.

Posted by: Asher | Feb 8, 2008 2:47:10 AM

Professor,
To elaborate on the license,
What harm is it intended to prevent?
How will it do so?

Beyond practical concerns(whatever influence allowed someone to coerce a minor into inappropriate sex will allow them to coerce them into filing the appropriate form while a fundamentally unobjectionable one night stand is not allowed), it seems an unnecessary government intrusion where whatever goals it has(from a legal standpoint) can be just as easily accomplished by manipulating the presumption of coercion.


Anecdotally the reason people do not engage in safe sex is not ignorance of the risks involved but rather a hormone/alcohol fueled cost benefit analysis which has unsurprisingly biased results.

Also does this count towards my TWEN post count?

Posted by: Ben Flieger | Feb 8, 2008 2:38:57 PM

Professor Markel,
how would you design sexual intelligence test? Would it screen for maturity and mental stability factors? If so, assuming it
could do so accurately, it would not even be necessary to differentiate the legality of a particular situation. I think it would be an excellent option for teens wishing to engage in sex, but I do think there is one concern.
What happens if someone doesn't pass the test, if it is just general lack of maturity it should not be a big deal, but what if the test reveals something prejudicial about the person. It does not seem like this information would be confidential, and would be floating around for all to examine. Of course it is optional, but I'm not sure a minor should be making that decision.
Also, what would be your position on people whose mental IQs differ from their chronological age? Or what if they just can't pass the test, like a pedophile( assuming you are taking mental stability into consideration)? I used to work with mentally retarded/disabled adults, almost all of them were interested in some type of sexual or romantic relationship. a few could probably pass the test that perhaps some could not. Could your test be used to keep people from legally having sex if they were not qualified, or punish them if they did?
If we went ahead with sex ed licensing you should not stop there,a private company should start such a service for adults(health screening, background checks,psych evaluations). I'm only partially joking - it would be a useful service, anyway one probably already exists.

Posted by: Jessamy Cauthen | Feb 10, 2008 10:39:03 PM

Dan - If we're going to let these various different factors into our determination, then why not the genders of the offenders? Perhaps homosexual and heterosexual should be treated differently -- with heterosexual perhaps treated more severely, given the statistics of violence against women by men.

Also, while I like the idea of a sex-ed license, it would seem, as commenters have suggested, there are just too many factors that have to be taken into play. It's not just knowledge about STDs and whatnot, but also "emotional intelligence" and similar factors, that matter regarding consent. Of course, plenty over 18s lack the emotional intelligence to consent, and plenty of under 18s possess it, but that's the bright line we've drawn.

I would lower the bright line to 16 for boys (keeping at 18 for girls), and allow judges to admit evidence of the minors that an exception is warranted because the sex was wholly consensual. Then judges & juries could decide on a case-by-case basis whether such a departure from the norm is warranted, with the presumption being against.

Even well-meaning adults, who are just trying to have some safe fun, can endanger the psychological health of minors -- who may also just be trying to have safe fun. So either the sex-ed license would have to be preposterously comprehensive, or there'd still have to be some bright line/presumption for prophylactic reasons. (No pun intended.)

Or - one last thing - maybe we should use the (x/2)+7 rule for whether a relationship is sketchy or not. X=the older person's age. (E.g., 32 year old: 32/2=16, +7 = 23 minimum age. Try it with your age and some other ones... it almost always works.

Posted by: Jay Michaelson | Feb 11, 2008 3:53:10 PM

Professor Markel,
Your idea about this sex license is interesting. I was wondering if you think it should be ok for a minor to get this license and then be able to leaglly participate in pornography? It seems that this would be ok based on the fact that they are clearly consenting, but it seems that a young person might not be able to make a rational decision in this situation, especially if someone was offering them big bucks. But, like you said, if we trust some decisions made by teenagers, what is the justification for not trusting them all?

Posted by: Amanda Boothe | Feb 13, 2008 7:12:05 PM

Interesting. Would parents be informed that their kid was going for a sex-ed license? Would they have a veto? Lots of tough issues there.

Posted by: Paul Gowder | Feb 14, 2008 3:05:55 PM

Sorry for taking so long to get to these questions and comments. They're very interesting and I've tried to answer some of them here:
http://prawfsblawg.blogs.com/prawfsblawg/2008/02/is-teen-sex-lik.html

Posted by: Dan Markel | Feb 15, 2008 5:31:33 PM

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