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Wednesday, September 21, 2005
Ginsburg and Consent
Eugene Volokh recently took Timothy Noah to task for his sloppy analysis of Justice Ginsburg's puzzling statutory rape argument from three decades ago. It looks like Volokh has the better argument; however, both sides seem to be missing an important potential explanation.
First, the facts. In 1974, Justice Ginsburg (not then a Justice, of course) co-authored a report called "The Legal Status of Women Under Federal Law" The relevant portion suggests:
18 U.S.C. §2032 — Eliminate the phrase "carnal knowledge of any female, not his wife who has not attained the age of sixteen years" and substitute a Federal, sex-neutral definition of the offense patterned after S. 1400 §1633: A person is guilty of an offense if he engages in a sexual act with another person, not his spouse, and (1) compels the other person to participate: (A) by force or (B) by threatening or placing the other person in fear that any person will imminently be subjected to death, serious bodily injury, or kidnapping; (2) has substantially impaired the other person's power to appraise or control the conduct by administering or employing a drug or intoxicant without the knowledge or against the will of such other person, or by other means; or (3) the other person is, in fact, less than 12 years old.
So is Justice Ginsburg really advocating lowering the age of consent to twelve? What kind of hedonistic libertine is she? Or is there another potential purpose for this statutory change?
I suspect that the answer may lie with a common fact pattern, recently demonstrated by a highly public unrelated case: the Koso case from Nebraska. In Koso, a Nebraska couple -- he's 22 and she's 14 -- were married in Kansas, where the age of consent is 12. They returned to Nebraska to live. The husband now faces charges in Nebraska -- charges of having sex with his lawful wife.
Public reaction has been strongly critical of the state. The state is a home wrecker, argues the defendant. Why would anyone be opposed to a man having sex with his lawful wife -- how can that be a crime? And given reports of negative reactions to the prosecution, public opinion seems to agree.
Keep the Koso case in mind for a second. Add to it the fact that Justice Ginsburg was a leading proponent of removing the marital exemption from rape statutes. And where do we go then? If advocates are successful in having marital exemptions removed from 1970's rape statutes, then what?
Then we're in Koso-land. A couple could legally marry in Kansas -- age of consent twelve -- and later be prosecuted for statutory rape if they ever ventured into Federal or maritime jurisdiction. It would bring up all of the problems of Koso, plus added questions of whether the Federal government should be involved in telling states what their ages of consent ought to be. And how to avoid this? Set the federal age of consent to match the lowest age of consent of a state. Which, coincidentally, is exactly what Ginsburg's proposed statute seems to do.
Is this actually what's going on? Is Justice Ginsburg's suggested statute meant to clear the statutory underbrush preparatory to rescission of the marital exemption? It's not clear. I think the Koso problem, combined with her campaign to rescind the marital exemption, provides a reasonable explanation of her proposal. But I honestly don't know if it's actually her motivation.
The strongest piece of evidence against this argument is that her proposed statute in the 1977 report itself contains a marital exemption. If her motivation was really to set the stage for removing the marital exemption, why not actually remove the exemption in her report? Perhaps this was more controversial, and she had to go slowly. I don't know for sure. But I do think that this potential explanation seems at least as likely as the alternatives, which at the moment seem to consist of (a) Justice Ginsburg decided that lowering the age of consent would be good, and decided to hide that proposal in a civil rights report, or (b) this is all due to very bad, hard-to-substantiate scrivener's error.
Ironically, if this explanation is correct, then it is today's Federalist revolutionaries -- those most likely to criticize Ginsburg for her report -- who should be happiest about her deference to state family law schemes. If Justice Ginsburg was suggesting that deciding the age of consent is not the Federal government's role at all, but rather the province of the states, then perhaps she's really an undercover Federalist.
Does that seem unlikely? Perhaps. But it's at least as plausible as suggesting that she's a flag-bearer for ephebophiles.
Posted by Kaimi Wenger on September 21, 2005 at 10:16 PM | Permalink
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» Blog Round-up - Wednesday, September 21th from SCOTUSblog
Judges and Jewry is tracking the Democrats' votes on Judge Roberts. The Volokh Conspiracy has this post on whether or not Justice Ginsburg, in the past, endorsed lowering the age of consent to 12. PrawfsBlawg comments on the post here.... [Read More]
Tracked on Sep 21, 2005 10:24:44 PM
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