A Random Thought on the Age of Consent

In all states there is an age below which someone cannot consent to sexual activity.  The age varies from state to state.  In Maine the age is 14 or 16 depending on the age of the older partner. In all states that I am aware of the fact that a sexual act may have been purely consensual in the plain meaning of the term is no defense. 

The logic behind both the age of consent and the lack of defense of consensuality make perfect sense.  No one could reasonably posit that a 6 year old could consent to sex with a 60 year old.  That said, the age of consent becomes an arbitrary line in the sand that really has no relation to the reality of many relationships.  Forexample, I recently defended a case in which my simpleton 35 year old client had a relationship with his 15 year old neighbor who was clearly capable of consenting and in fact seemed to have initiated the relationship.  She seemed far more intellectually capable than my client. 

It also makes sense not to have a defense that could result in a scenario where my hypothetical 60 year old client points to a few innocent statements by the 6 year old victim that they enjoyed the oral sex as evidence of consensuality (child victims will often confess to the investigator that they enjoyed the encounter).

ALL THAT SAID

I have increasingly been intrigued by the increasingly explicit and aggressive sex education classes that many school systems are pushing as a matter of policy.  A light survey of headlines on the controversies surrounding these programs suggests that schools (state actors) are increasingly condoning either implicitly or explicitly sex amongst the very young.  If I may flag my own politics for a moment, it appears that the feminist, pro-abortion, free condoms for all crowd has taken over the school system.  In my own home state, for example, one recent school system now provides birth control for middle schoolers.

It occurs to me that a fun defense to try would be to wait for the appropriate case-a 15 year old in the right school system who is having factually consensual sex with an older person. I would then argue that the state is estopped from relying on the age of consent statute because the victim had been taught by the state that she could consent to sex, that they provided birth control to her and that they taught that sexual decisions were within her own purview.  I would then argue that the state is estopped from raising an age of consent defense.

Just a thought and one I would welcome some feedback on.

Comments

[Jan McLaughlin]

I wonder if in sex education classes kids are taught that they may not legally consent? Would love some teachers to chime in here...

[susan pope]

Steve-your argument is exactly why Sara Palin's 16 year old daughter became pregnant and then gave birth at 17 yrs old. It is irresponsible as a parent to not provide your children with information about sex. If they do not get it from us, they will get it any place they can. The issue is whether they will get it from knowledgeable, reliable sources or from quacks, whackos, or other uninformed sources. When I was a teenager, the word around school was withdrawal would protect a girl from getting pregnant. We as adults well know that is completely false. So, if parents do not provide information, who, if anyone, should step into the breach? Is it appropriate for schools to do so? As long as parents don't talk about it, or pretend that our kids will be different from their parents, grandparents, and greatgrandparents and supposedly practice abstinence and not partake of any sexual activity or investigation before marriage is sheer stupidity and terrible, irresponsible parenting. Too bad that you slam feminists as I believe we feminists are single-handedly responsible for making teenage girls aware of the awesome costs and responsibilities of becoming sexually active. I look forward to your comments.
Suzy Pope

[Joe]

Wow. Great argument. You make a really strong point. If state groups such as schools would like to continue handing out birth control to middle school students and teaching them about sex, perhaps they should also include a discussion about legal statutes such as the age of consent and how that factors into sex crime convictions.

[Randy in Boise, Idaho, USA]

Mr. Smith is right-on. Sex is being taught at ever-younger ages, yet prosecutions are getting more persnickety and ''at the prosecutor's discretionl,'' depending on election-year or not. This makes no sense. Make a law and stick to it, but if the state/schools pass out condoms and BC pills, how can they then turn around and prosecute?! Entrapment rings a bell to me. If both parties are consenting how can the State throw a male (almost always the male no matter who started it) in prison and brand them as sex offenders??? Sex has always been here but such silly prosecutions are increasing activity by putting it into teen heads - just as much as the 20 copycat shootings since Columbine. Press, U are causing more molestings, knock it off, and act responsible. And just how long will the press hide the fact that Pres. Obama's half-brother's sex attack on a girl in Europe was covered up??? DNA proved him guilty, yet nothing happened to him!!! Must be nice to have such conections. Keep it up press, doing a great ''Democratic'' job.

[Joe]

Age of consent laws would be considerably more just if they had opt-out provisions modeled (perhaps) upon the emancipated minor statutes all states have.

The ultimate goal of the state should be to provide protection from unwanted sex, not to impose a one-size-fits-all cookie-cutter view of morality.

[Mark#1]

Though I think our age of consent statutes have been outdated by the progress of culture, the state's argument in your hypothetical situation would obviously be that the fifteen year old could consent to sex with persons who fall within the age group which are excepted from liability (in Texas, within three years of age, if complainant is under 17 years of age).