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Tuesday, February 19, 2008

The Sex-Ed License, Redux

Last week I blogged about the uneasy case for a sex-ed licensing scheme that would, with other conditions, serve as a safe harbor from statutory rape prosecutions for sex between and with minors over a certain age (e.g, 15). The proposal, and the couple of posts that led to that one, have met with some interesting reactions. See especially this post from Simple Justice.

Over at Mirror of Justice, Prof. Rob Vischer responds:

I'm not sure how to articulate all of my grounds of discomfort with this proposal, but here's one: the driver's license has become a rite of passage for American teenagers.  Even if you do not need to drive for purposes of your daily existence, your entitlement to drive is sought-after goal, a sign of maturity and enhanced independence.  As Cass Sunstein has pointed out, one of the government's central roles is norm management.  In this regard, state action designed to prevent harm from risky behavior that we know is going to occur can easily begin to shape the norms that influence future behavior.  I don't have a problem with state regulation contributing to the centrality of driving to the adolescent experience, but what if we're talking about the centrality of sexual autonomy to the adolescent experience?  A city's free condom program has become a government message (literally) telling us all to "get some," and I'm wary as to the message of a "sex-ed license" for minors.

As I mentioned in some comments to the original post, Rob is right that there are definitely norm-management issues involved, but consider whether the same concerns exist regarding gambling, alcohol, and tobacco. Why do norms against abusing these exist even though their use is permitted by law? Maybe, one could respond that these three things are restricted to adults, so it's easier to manage the messages we send to minors about these things. But to my mind, that still begs the question regarding how we're able to create norms against abuse while still allowing the law to permit them for adults.

For what it's worth, I am much less troubled by the message that this license says: "go get some action," than the injustice and inefficiency of punishing purely consensual relations between mature and informed individuals.  But I should note that I'd be fine if the sex-ed license focused on the  consequences of sex so it served a bit like a "scared straight" movie.  Maybe a condition for the license would also require everyone to watch Knocked Up and Juno too...

Posted by Administrators on February 19, 2008 at 06:32 PM in Article Spotlight, Criminal Law, Dan Markel | Permalink


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Asher, bestiality can be distinguished from incest or adult-teen sex: the main difference is that deers can't consent, dead or alive, in any meaningful or informed way. Clearly most of us believe the lived experience of teenagers is quite different and that indeed they are capable of informed choices in various respects. It doesn't mean all "children" should be eligible for this but it does mean teens over a certain age might be, provided the conditions I've elaborated above.

Posted by: Dan Markel | Feb 23, 2008 7:44:29 AM

The Genarlow case was a real miscarriage of justice, but only because he was 17. Had he been 30, I wouldn't have the slightest problem with him being jailed, no matter how eminently consensual the sex was, and you have to admit that if he were 30, no one would care or know about his case and you wouldn't be citing it as an instance of what's wrong with statutory rape laws. There was recently a case in Wisconsin - you may have seen it on Volokh - where a man had sex with a dead deer he found by the side of the road. He argued that the state's bestiality statute only applied to living animals, not carcasses. But he also could have made the constitutional claim that the statute, if applied to sex with carcasses as well as live animals, is an impermissible regulation of morality. After all, he isn't harming anyone; the deer's dead, and, unlike a person, it presumably isn't intelligent enough to have preferences about how it would like its body to be treated once it dies. I think, however, that such an argument would be misplaced, because I believe the state has the right to regulate not only activity that harms others, but activity harmful and degrading to oneself. Having sex with a dead deer is, quite literally, dehumanizing, as is having sex with a child a fraction of one's age in a bathroom. The state ought to be allowed to protect people from harming themselves in this manner, and I certainly don't see anything in the Constitution that forbids it.

Posted by: Asher | Feb 23, 2008 3:22:32 AM

Anon, thanks for the tip. Bear in mind that we live under a rule of law, where criminal liability is established by facts shown beyond a reasonable doubt to a jury, or admitted to by the defendant. On the facts we have, which are quite relevant to this "thought experiment," a young man was imprisoned for consensual activity, and acquitted of rape. No one here has said Wilson was a hero. But you don't have to be a hero to suffer an injustice.

Posted by: Dan Markel | Feb 22, 2008 1:43:18 PM

If this entire though experiment has been based on the experiences of Genarlow Wilson, then looking at the facts of the case (not just the conviction) would be useful -- he videotaped a gang rape of another underage girl before he engaged in the act to which he was charged. See Bridget Crawford's post here:

Posted by: Anonymous | Feb 22, 2008 12:36:10 PM

I practiced in the South. My teenaged clients who were charged with statutory rape (which at the time carried 0-15 years and a sex offender registry requirement) typically pleaded to aggravated assault with a probationary sentence, with or without sex offender registry (the judge decided, and I had clients who did and did not have to register). There were a few cases in which Mom was particularly intent on prosecuting, and my client got an active sentence with youthful offender status (which, if you behaved yourself in prison, meant 11 months) or the incarcerative boot camp program, which was 90 days.

Posted by: Deb Ahrens | Feb 22, 2008 12:18:15 AM

Hey, I'm not sure I would ever claim that Rhode Island is *typical* of anything. And every time I do a study in this state, I want to know how the results compare to otehr states. I hope that this issue (statutory rape)and many others get studied in that fashion. This thread is almost enough to get me to request data from New York, where it's fairly eary to get good data statewide in a nice, cleaned up form. Although it still requires checking individual files to get ages and any contexual facts.

I got into this study when Judith Levine's book, Harmful to Minors: The Perils of Protecting Children from Sex, made a host of genralizations about statutory rape--all based on one case from New Hampshire that she described as "young love." When I looked into that case, I found a defendant who had two previous marriages with young girls--both riddled with violence. The man then threatened the complainant's 13-year-old friend, shortly before the events that looked a lot more like coercion than young love. But single cases are just that--so I did a more comprehensive study.

In the case you mention, Jim, who was the complainant? How did it even come to the attention of authorities? And if the case invovled testimony, might you possibly have a case name? I'm curious to know more. And I'm entirely open to the idea that statutory rape laws are being enforced in a much different way in the South than in the North.

May a thousand empirical state studies bloom. Or even two or three.

Posted by: RCinProv | Feb 21, 2008 7:50:02 PM

Perhaps the data examined in RI are atypical for the nation as a whole or at least for the South. I work with a forensic psychologist who has testified in cases similar to those Deb describes and worse (e.g. a 30 year old woman with mild retardation known throughout the neighborhood was seduced by a teenage Don Juan as a joke among his friends and she was convicted and must register as a sex offender).

What you deem prosecutorial abuse I think is politically expedient 'round these parts and over yonder.

Posted by: Jim Green | Feb 21, 2008 5:49:08 PM

Deb, I'm not sure anyone has national data. This varies enormously by state. In a systematic review of my county-sized state, I found very few of the cases you describe as prototypical; and none of them were carried forward. (Far more involved very large age differences, and the ones that didn't often had strong indicators of coercion.)

What happened in the cases you mention? Did they get carried forward? Did the defendants do time, or did they plea either to lesser charges or to non-incarceration outcomes? Here, prosecutors seem, quite sensibly, to have no desire to try to prove a case with a reluctant "victim" (that is, one who does not even consider themselves a victim) -- so they drop the case. I can't imagine a jury convicting in such a case; but I'm not in, say, the South where things might be quite different. They obviously are different in Georgia, where I still don't understand how that case came to pass. I see the problem in that case as abuse of prosecutorial discretion.

Posted by: RCinProv | Feb 21, 2008 1:00:48 PM

While I will concede that my data set comprises "2.5 years of working as a public defender in one county" as opposed to "statutory rape prosecutions nationwide," I can say that, in my caseload, anyhow, the prototypical statutory rape case was "high-school-aged male defendant had consensual sexual relations with high-school-aged female 'victim,' and 'victim's' mother called the police when she found out about it." I had a few cases charged as statutory rape where the defendant was by all measures an adult, although those were also all cases where the act itself was consensual (but/for the possible coercive effects of the age difference itself).

Posted by: Deb Ahrens | Feb 21, 2008 12:44:22 PM

In fairness, I'm not sure the incentive to trolling is present. First, I'm not especially committed to one age (e.g., 14 or 15) as opposed to 16. But let's say it is 15 or even 14. Remember that under my plan, to get the safe harbor, they'd have to go to a designated local official -- not an online form, and perhaps at a police station where someone with training could ask follow-up questions -- and sign a joint consent form for any sexual activity to be permitted subsequently. Heck, I'd be fine if they had to do that even for kissing to be permitted, let alone other activity.
I should add I'm not sure that I mentioned this earlier, but to the extent we're worried more about the coercion possibilities between older and younger people, or cousins etc., the strategy should be to increase the burdens necessary to permit the safe harbor for sexual activity. So perhaps the consent form would not be necessary for 17 year olds having sex with each other, but just the sex-ed license. But if there's a substantial age difference or consanguineity, then you raise the regulatory burden more without necessarily precluding the activity altogether.

Posted by: Dan Markel | Feb 21, 2008 11:17:42 AM

Yes, eliminating the statutory rape option *might* increase the number of cases proesuted as rape. And it would be great to try to test that hypohtesis. What continues to fascinate me is how many people have strong views of who is prosecuted for statutory raope without the benefit of any information of that sort.

But, of course, one must confront all the difficulties in prosecuting rape cases. "Bad victims" -- read unsympathetic -- is one major reason that coercive sex cases are charged as stautory rape. Those cases are more likely to be charged as simple assault, or maybe as nothing at all, if a rape charge is the only other possiblity.

Also, the significant number of cases I found where the age difference was twenty years or more, well, those guys would have a free ride. Guys in their thirties can troll for 14 and 15 year olds, secure in the knowledge that if they groom the young teen and get her to "agree," then a rape charge would never even be considered.

Posted by: RCinProv | Feb 21, 2008 9:29:13 AM

I think the coerced sex problem might actually be a point in favor of Dan's idea: if a bunch of rapes are getting pled as statutory because it's easier to get pleas there, then eliminating that option might increase the proportion of those cases that are prosecuted as actual rapes.

(Time to put the social scientist has on... Are the data available to do that study? More availability of the statutory rape charge should lead to a lower rape conviction to rape allegation ratio. Since states have different ages of consent, the comparative static would be lower age of consent equals increased percentage of rape allegations leading to conviction.)

Posted by: Paul Gowder | Feb 21, 2008 2:08:18 AM

I'm not kidding you. I'm just saying tha tone injustice, however unjust -- and really, all injustices are unjust -- does not make a case for changing laws in genrral or adopting a whole scheme of state-issued permits. Morevoer, if there is one of those for every 100 false negatives, then I would have public policy directed at the false negatives. And so my continual efforts to ask for data are about that point.

I don't know if I was utterly ignoring or not understnding the "shadow effects." Check out the surveys cited in the chapter and you'll see that coerced sex is a huge phenomenon and it almsot enevr results in prosecution. So yes, it's awful when consenual sex does; but I still think there are far mote reasons to worry about that other problem.

My apologies for bringing down the tone of this exchange.

Posted by: RCinProv | Feb 20, 2008 9:55:57 PM

You've got to be kidding me. A guy sits in prison for a consensual blowjob for a couple years and that is not an injustice (just a mere anecdote) because his conviction eventually gets overturned on 8th Amendment grounds? It's precisely because it's an injustice that it *does* get overturned as cruel and unusual. On your view: when someone sits on death row for 10 years and is eventually exonerated, does that also mean that there's been no injustice?

Moreover you continue to utterly ignore the importance of the shadow effects I highlight: that the laws as they stand are chilling consensual activity that has no basis for being criminalized. And leaving these statutes solely in the hands of prosecutors means that many people get arrested (!), and threatened with prosecution. For consensual sex.

Thanks for the link to the study.

Posted by: Dan Markel | Feb 20, 2008 6:55:39 PM

As I thought: you have one horror story. One. And it was overturned.

I don't know why asking in a blog post for data is so odd. You post about this issue a lot and you obviously think it's a significant problem. I would think that you would have data to support that view. If your concern is "theoretical," fine. So is the problem.

I am not asking for proof of a negative. Injustices are not negatives; they are real cases. The fact that you have no empricial evidence and ultimately provide one anecdote is, I think, telling.

I will definitly check out the article you cite. The very few cases I found in Rhode Island where both parties described the act as consenual were dropped by the prosecutor. Indeed, imagining how such a case would end up with a prosecutor in the first place raises some interesting questions--like who was the complainant? In the few cases I found where a parent or child protective services complained, but it seemed truly consensual, the prosecutor did not carry the case forward.

Maybe a few cases like that are reason enough for you to entertain a massive licensing scheme. I would need a lot more, given the costs, monetary and otherwise, of doing so.

Oh, and here's the study we did in Rhode Island:

The published version, with much more ananlysis, is:
“Statutory Rape: An Empirical Examination of Claims of ‘Overreaction’” in Dowd, Singer and Wilson, eds., Handbook on Children, Culture and Violence (Thousand Oaks, Cal: Sage Publications, 2005) (co-authored with Laura Braslow).

Posted by: RCinProv | Feb 20, 2008 6:39:28 PM

Ross, you might also want to check out Kay Levine's piece on the Intimacy Discount, Emory L J 2006. She does one of those fancy Boalt JSP studies you're looking for and notes that part of the problem with troublesome statutory rape laws is that even when they lead to dispositions or declinations, they still nonetheless lead to prosecutions that can be quite vexatious for those concerned. And because these prosecutions involving intimate consensual relations don't always lead to a conviction, the laws in question don't receive adequate public scrutiny. Anyway, just another thing to think about...

Posted by: Dan Markel | Feb 20, 2008 12:04:39 PM

I come clean. I've made clear why I think it's an interesting problem theoretically and I've given some reasons to think it's a real world issue too. I can certainly find anecdotal references of the sort like Genarlow Wilson, which seem relevant. But maybe the fact that he was prosecuted and jailed for consensual oral sex by a 15 year old doesn't bother you (enough). http://en.wikipedia.org/wiki/Wilson_v._State_of_Georgia

I can also point to the fact that you're asking me, in a blog post no less, to demonstrate a negative, ie., how many people are not having sex because of the shadow cast by the law. So, your data won't be forthcoming anytime soon. (I suppose if you're interested, you could perform some surveys.)

Just out of curiosity, what's the number we're talking about in Rhode Island? How many of those did you consider injustices? And on what basis? Feel free to just post a link to it. Thanks.

Posted by: Dan Markel | Feb 20, 2008 1:43:04 AM


The reason it appears to me that your position is based on hunch and belief--not data--is that you have not provided any data. I don't know what your Lexis count means. Very little, I suspect. Do these cases use the word "stautory rape" or they are actual decision about statutory rape? Are they cases where there were other charges also? Are they from the 21st Century, or is your concern about "injustices" in a distant era? I don't know.

Playing with assumptions and "doing the math" really boils down to saying, "if I start with a large number, then even a small percentage of that large numebr is a number worth considering." That is not data.

What I do know is that when I did a comprehensive examination of everyone charged with this actual crime over a five-year period in my state, the study did not yield anything that would suggest there were a significant number of the kind of injustices you are hypothesizing. Quite the opposite.

I welcome other empirical work. And I remain interested in seeing whether you ever find any *data* that supports your concern. I am also interested, of course, in why you are so concerned about an alleged phenomenon for which you apparently have no data.

Posted by: RCinProv | Feb 20, 2008 1:07:46 AM

as someone who has written an article called "Against Mercy," I can assure you that undue leniency is something also on my radar. But I'm not sure why you would try to dismiss my views as "merely a hunch or a belief that there is over-prosecution."

As I mentioned, there are over 7400 reported opinions dealing with statutory rape. If *90%* of those were what I'd likely call false positives, that would still raise 740 *reported opinions.* How many criminal cases result in reported opinions? As you should know, it's fewer than 1/100. Do the math, play with the assumptions, but I'd bet there are more than 500 cases that would be "over-prosecution" relative to my normative baseline. (It's likely to be at least one order of magnitude higher.) Maybe you don't think at least 500 injustices are worth thinking about.

Couple that with my other point: putting aside my admittedly unusual views, there are and have been lots of people not engaging in consensual relations that many would think to be unobjectionable (from the criminal law perspective) because the law prohibits them. It's not crazy to believe that in a free society, this allocation of the burden needs better justification or a re-ordering.

Posted by: Dan Markel | Feb 20, 2008 12:26:15 AM

Thanks for the response. As you know, citations to the words "statutory rape" don't prove that there is a problem.

I did a study that looked at every single case in my state where someone was charged with statutory rape over a five year period. There were almost no cases that support your concern. There were a huge number, though, were the main question was "why wasn't this charged as rape?" since the victim described the event as non-consensual. The answer seems to be that it's easier to get pleas on statutory rape, especially since almost none of those defendants did time. So I have aggregate evidence that supports a concern about undue leniency. You seem to have only a hunch or a belief that there is over-prosecution. I will be interested to see if you ever find data that supports your position.

Posted by: RcinProv | Feb 19, 2008 9:51:52 PM

Good questions. I happened to take a quick look at the number of times statutory rape appears in the allcases database in Westlaw, and it yielded over 7400 case opinions. That obviously will include some false positives but I'm not about to find out anything more for a blog post, for two reasons: a) many convictions (through plea agreements, etc.) will not yield published opinions and b) right now, the "entitlement" to no-sex belongs to those opposing consensual relations between some mature and informed individuals. Thus, the true scope of the problem can't be assessed simply by looking at the "bad" prosecutions. It also has to include all those who might reasonably engage in such relations but don't do so for fear of being prosecuted or, putting aside enforcement error, because they don't want to view themselves as outlaws (at least in this respect).

Posted by: Dan Markel | Feb 19, 2008 7:47:49 PM

I understand that you are worried about "the injustice and inefficiency of punishing purely consensual relations between mature and informed individuals." What I wonder is (1) how often do you think that this actually happens, and (2) what is your basis for that belief? I know of no empirical evidence that this is a signifciatn problem in the real world. Do you have any aggregate data to support your concern, or are you relying on an abstract worry and some horror stories (which, like all "horror stories," may or may not be based on fact)?

Posted by: RCinProv | Feb 19, 2008 7:22:05 PM

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