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Thursday, April 24, 2008

Adolescent sexuality and the law

Here are two recent criminal prosecutions that suggest a bizarre separation of official legal norms from ordinary social norms:

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. Roughly half of our teenagers have sex with each other. Roughly 8 percent of them do so before the age of fourteen. (see KaiserFoundation fact sheet) (Fewer photograph it, of course, but it is hard to see how the depiction adds measurably to the culpability of the act). The "madness" of the law is simply the curious gap between what our children actually do and what the laws says that they ought to do (or not do).

Two questions: Why? And what ought to be done?

As to why: Is the problem that obsolete laws remain on the books? Or that current prosecutors are simply distorting sensible laws by enforcing them in unforeseen ways? Or do our lawmakers actually adhere to official norms radically out of sync with the behavior of their children?

As to what ought to be done: Should courts respond by invalidating such laws (as applied) on the ground that such prosecutions are simply contrary to ordinary social norms, as reflected by facts on the ground of which the courts can take judicial notice? (The canonical citations would be Harlan's dissent in Poe v Ullman, Lawrence v Texas, Justice Powell's plurality in Moore v City of East Cleveland, etc). Or should constitutional law butt out, because norms are actually unstable in this area?

Posted by Rick Hills on April 24, 2008 at 09:06 AM in Criminal Law | Permalink


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Tracked on Apr 24, 2008 9:06:44 PM


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Posted by: jena | Oct 15, 2008 1:48:17 AM


Damn. Do you really have to take all those incredibly strong commitments -- denying Hume's law and so forth -- just to get to the proposition that these prosecutions are wrong? Why not simply appeal to the notion of the high cost of upsetting settled social practices?

Posted by: Paul Gowder | Apr 28, 2008 8:48:36 PM

But the issue is not whether one prohibits sexual activity between twelve year olds. Of course, one should. The issue is whether one prosecutes twelve-year-olds as felons or sex criminals. The latter position strikes me as simply preposterous.

Of course, parents should be held to a duty to supervise and protect their children: Perhaps there ought to be a presumption that parents who do not take measures to prevent such behavior will lose custody. perhaps the state should even prosecute the parents or guardians for neglect when their kids have sex at such a young age. (Here, I disagree with Dan Markel, having no problem with parents' vicarious liability for the children's misbehavior). Perhaps one should instruct the relevant school and social service authorities to intervene with various civil remedies -- mandatory sex counseling, etc. Perhaps one should even make such behavior a misdemeanor, in order to give the law some hook with which to intervene in dysfunctional families. But criminal prosecution for a felony?! A prosecution that -- among other things -- would prevent the child-mother from residing with any infant produced by such intercourse?! What possible good can come of such folly?

Posted by: Rick Hills | Apr 25, 2008 4:44:10 PM

I'll bite, and I'll defend having laws against "consensual" sex between kids under 14. I accept that we should have gradations to distinguish ages, rather than just child/adult. Further, for some ages in the middle zone, e.g., 15, we may wish to prohibit sex with adults but not among peers. And still further, we may want that area to be softened with relative measures of age gaps, such as "Romeo and Juliet" laws.

But all that still leaves room for some floor, some age at which we say that none of them should be doing anything, because we find it generally harmful for the group, even if individual cases may vary in maturity. So the question then is where the line is, and 14 strikes me as sensible. But even if you lobby for 12 or 13, the point is that there is a legitimate purpose for such a line.

In several ways, I think that a comparison to alcohol use is instructive. The absence of a "substance" does not change the fact that we have made a collective judgment that "you kids are messing with something [here, your bodies] in a way that causes harm, and you are not ready to make that choice." Sure, enforcement should perhaps be measured, but that does not mean that it is not called for at times.

Nor is it a complete answer to point out that some percentage of the kids break the rules. First, we don't do that for all other laws that have a 10% rate of lawbreaking. Sure, at some level, mass lawbreaking is cause for further inquiry (prohibition, drug war, etc.), but it's not the full answer. Second, given that the whole idea is that children don't make good choices, I don't think that the # of kids having sex pre-14 is the right benchmark. The better metric, if any, is what percentage of us adults, especially parents of teens, accept sex at 13 or 12. I know many parents who accept that their kids won't make it to 18, and focus on safer sex, etc. But not many accept that for their 12-year-olds. Third, even looking at the kids' activity, you cite 8 % for the under-14 set. That's pretty small, even if higher than we'd like.

Prof. Markel raised a good point about the "anti-sex" crowd lumping 8-year-olds with 17-year-olds as "children," and I'd add that the "less-anti-sex" crowd may do the same in the other direction. Accepting reality about 16-year-olds need not mean accepting sex between 12-year-olds.

Again, I am realistic enough to know that some kids drink at 12, and I'd like to see the drinking age lowered from the insane 21 to 18 or even 16, but I'd still "prosecute" the 11-year-olds for drinking, to maintain that social and legal norm. (And of course, some cases that are informally called "prosecutions" in the news may be delinquency adjudications, but that's a whole different tanget.)

Posted by: prudent prude | Apr 25, 2008 4:21:18 PM

Jonathan asks:

"You have stated that you adhere to anthropologically thick deductions of actual belief and behavior. In that case, what is the source of normativity for the anthropology involved? Is it based on some idea external to culture, and independent of it's behavior and tendencies? Or based purely on observation and deduction of societal behaviors?"

To which I respond:

(1) I am a thorough-going pragmatist: "Normativity" emerges from social practices, pure and simple. Therefore, I think that drawing any significant normative conclusion from the fact-value distinction is misguided and, indeed, silly. (The distinction exists, but only in the sense that the distinction between sentences containing the pluperfect and sentences not containing the pluperfect exist. Hume's old saw about not being able to infer one from the other is mistaken, in my view).

I will not defend these positions here but merely refer the interested reader to Hilary Putnam's work -- especially The Collapse of the Fact/Value Dichotomy and Other Essays (Harvard Press).

(2) It follows from (1) above that I do not believe in some extra-social notion of either "harm" or "consent." Both are defined by actual social practices and not some pie-in-the-sky abstraction deduced from any ontological non-entity such as "utility," "welfare," or (ick) "rights."

(3) My offense at these prosecutions, therefore, is based entirely on the wild disjunction between what the prosecutors are demanding of the kids and what most Americans demand of their kids and what kids demand from themselves. The gap makes an ass of the law.

Posted by: Rick Hills | Apr 24, 2008 11:40:55 AM


You've left undisturbed my question about malum prohibitum versus malum in se, unless it's contained in your response concerning anthropologically thick deductions of actual belief and behavior. What you mean, to make sure I understand, is that law ought to mimic societal behavior, insofar as anthropology dictates that such behavior is not harmful in some way. So, therefore, the disturbed onlooker (provided that enough "others" are actually disturbed by public intercourse display) would provide a reason for public indecency laws.

Moreover, the manifest purpose of laws against child porn is to protect children from exploitation, not to protect children from themselves. A prosecutor who cannot see this distinction is (again, to quote Dickens) an ass.

I agree with you that more careful distinctions ought to be drawn in law, based upon the ages of the various individuals involved, with an absolute high-end cut-off based on presumed reasoning capabilities (leaving thus the door open for prosecutions of claimed "consent" for intercouse with mentally-handicapped individuals).

The question is, in your view, what is the source for the idea that children need protection from exploitation? You have stated that you adhere to anthropologically thick deductions of actual belief and behavior. In that case, what is the source of normativity for the anthropology involved? Is it based on some idea external to culture, and independent of it's behavior and tendencies? Or based purely on observation and deduction of societal behaviors?

Posted by: Jonathan | Apr 24, 2008 11:25:20 AM

1. In response to Jonathan: On matters of mores, I am an unrepentant Tory. I favor anthropologically thick deductions of actual belief and behavior over logically consistent deduction from abstract premises. Therefore, I have no trouble drawing fine distinctions between factually dissimilar cases without skiing down some imaginary slippery slope in which all capacity to draw lines suddenly vanishes.

With that declaration in mind, I see no equivalence whatsoever to a private photo circulated among two people in a reasonably discrete manner, where the odds of a third party's being disturbed by the display are extraordinarily low, and sexual intercourse in a public street. Of course, the distinction -- like all interesting distinctions -- is a matter of degree. But if the law cannot draw such distinctions, then the law is, in Dickens' phrase, "an ass."

Moreover, the manifest purpose of laws against child porn is to protect children from exploitation, not to protect children from themselves. A prosecutor who cannot see this distinction is (again, to quote Dickens) an ass. If the prosecutor wishes to charge the participants for public indecency, let him or her try -- but I'd guess that the indictment would be dismissed for lack of publicness (see above).

2. Dan Markel writes like a true Tory: The right answer is surely a matter of abandoning simple-minded and legalistic dichotomies ("adult," "child") and recognizing that social mores are far more fine-grained than existing legislation permits. I'd think that ideal legislation would involve (a) age differentials, (b) graduated categories of offenses (rather than the idiotic tendency of the law to lump every sort of sex-related misbehavior, from public nudity to rape of a pre-pubescent child, into the category of "sex crime"), (c) far more categories of age to reflect the differences in maturity between a 12-year-old and a 17-year-old. And Dan's other suggestions induce me to shut up and read his article, which, I suspect will contain more Tory wisdom than any state legislature, in our current state of legislative imbecility, is capable of absorbing.

Posted by: Rick Hills | Apr 24, 2008 10:40:59 AM

Rick, I'm in basic agreement that the laws have gone mad. I've proposed a few solutions (see my post on the sex-ed licensing scheme: http://prawfsblawg.blogs.com/prawfsblawg/2008/02/is-teen-sex-lik.html), and I also think we need to rethink the state's interest in both the contexts of sex with/between teens (http://prawfsblawg.blogs.com/prawfsblawg/2008/02/sex-with-minors.html)
and marriage with/between teens: http://prawfsblawg.blogs.com/prawfsblawg/2008/02/marriage-of-min.html

I'd be curious to see what you think of the various hypothetical scenarios I wrote about.
There's one interesting thing I didn't stress too much but the rhetoric of this is important and people may toggle perhaps unwittingly between the options: do we frame this as teen sex, sex between minors, sex between children, sex between adolescents? When the "anti-sex" people discuss the issue as "sex between children" they're trying to ambiguate the situation, lumping 17 year olds with 8 year olds. Society does need to draw a line somewhere as to the base age above which sex is non-prosecutable, but it seems like referring to minors or adolescents is a less fraught way to talk about the situation.

Btw, the story you link to happened in Tallahassee, and Judge Wolf who wrote the majority opinion is an adjunct at FSU; I think the dissent had it right. Prosecuting the teens for child porn creation is a reflection of poor drafting by the FL legislature and poor decision-making by the prosecutors.

Posted by: Dan Markel | Apr 24, 2008 10:22:49 AM

It seems to me that such laws, at least amended, serve an important purpose. Due to the similarity in ages, we don't think that there is a lack of consent when a 12 year old and a 13 year old have sex with each other. But it seems quite different if a 20 year old sleeps with a 12 year old. The prosecutor's office I interned at last summer seemed to have the right idea; as a matter of policy, it wouldn't generally charge statutory rape if there was less than a five year difference in age.

Posted by: ChrisB | Apr 24, 2008 10:09:42 AM

The "madness" of the law is simply the curious gap between what our children actually do and what the laws says that they ought to do (or not do).

Rick, I am curious about the "madness" and "curious gap" you discuss. How do you differentiate between malum in se and malum prohibitum? Or do you see a difference, and are of a more legal positivist mind?

In the first instance you highlight, what difference does the status of the underlying act make? It seems like you're saying that (for example) one could have sex with one's wife in the street and laws against public indecency should not apply because sex with one's wife is legal. I don't see that the particular differentiation you make is applicable.

As to another point, I think what you're seeing in the first instance is the law grappling with (and failing to deal adequately with) technology and new social mores that come along with it. It would make more sense to me to penalize the teenagers administratively (say with loss of ability to have a driver's license until age 21) than to give them a criminal record for stupidity.

The story notes, "The two sent the photos from a computer at Amber's house to Jeremy's personal e-mail address. Neither teen showed the photographs to anyone else" - but someone else found them. To stretch the point, should we prosecute a 19 year old male who takes solo "soft" nude photographs of a 16 year old female, apparently without coercion, and stores them on a personal computer, which is later hacked and the photographs discovered? I would say that we should indeed prosecute the male for possessing child pornography. What are your thoughts?

Posted by: Jonathan | Apr 24, 2008 10:06:06 AM

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