Is a measure of puberty sufficient to give consent? I am not saying that it is..but perhaps it’s closer to a better situation.
Older societies had coming of age ceremonies and welcoming pre pubescents into young adulthood. Perhaps there was more value in the old traditions and rituals that we have given up in our modern times. It clarified to a young adult the changes that happen physically and hormonally..an opportunity to talk about things and take personal responsibility. A responsibility that means freedom as well as risk.
I am just throwing this out there..we have handed over societal bonding over to the state and legal system. It has certainly made us weak. And allowed more predation of the truly vulnerable while curtailing the freedom of those who are aware of risks and responsibilities.
> Is a measure of puberty sufficient to give consent? I am not saying that it is..but perhaps it’s closer to a better situation.
The problem is, how do we measure "sufficient"?
If we just mean people's opinions, we can be more nuanced — for example, I think a grown person who has sex with an 18 year old is just as gross as one who has sex with a 17 year old, but I don't have an exact line in my head as to when it would become okay. Everyone's exact line will differ, and that's okay too!
On the other hand, if the law is trying to measure "sufficient", then we need something objective because people need to know when they would be breaking it. "Puberty" is pretty squishy — for example, do we count when a boy's voice deepens? When he starts growing facial hair? Whereas if we measure an objective fact like age, then if I know that fact I can be 100% sure whether or not I'm allowed to have sex with this person.
I agree with you that age an imperfect measure of maturity, which is what we really care about. But it seems to be the best measure we can come up with that's both objective and correlated.
Why?
> The law needs a bright and clear line, so you can know how not to break it.
Why does that need a "bright and clear line"? There are plenty of things that are illegal where there is no "bright and clear line" in that same sense, and that seems to work just fine, and actually even better in many cases. Like, I dunno, tax fraud is in principle tax fraud even at a single cent, but it's absolutely not "you paid all the taxes you owed, you are fine, you under-reported one cent of your income, now you lose your job and go to jail".
> And so even though there's not really a difference between 17 years 364 days vs. 18 years, one can consent to sex with an adult while the other cannot.
Which seems to be the case. Now, why is that a good approach?
> Just like one day makes the difference between being able to vote, or drink, or get a driver's license.
So, maybe we should fix those as well? Why shouldn't you get a fractional vote starting at age 10, increasing linearly to a full vote at 18, say?
There is absolutely a bright and clear (albeit very complicated) line for tax fraud. The IRS probably won't go after you if you underpay by a penny — but you're still breaking the law if you do it intentionally.
>> And so even though there's not really a difference between 17 years 364 days vs. 18 years, one can consent to sex with an adult while the other cannot.
> Which seems to be the case. Now, why is that a good approach?
Because — with regard to statutory rape — if I know someone's age I can be 100% sure whether or not I would be breaking the law by having sex with them.
In other words: There isn't a bright and clear line?
> The IRS probably won't go after you if you underpay by a penny — but you're still breaking the law if you do it intentionally.
In other words: There isn't a bright and clear line?
Like, you are claiming that there is, and then provide the evidence that there isn't. All you are showing is that there is something that you want to call a "bright and clear line", but then you don't show anything in reality that actually matches that description in any meaningful sense.
> Because — with regard to statutory rape — if I know someone's age I can be 100% sure whether or not I would be breaking the law by having sex with them.
OK, so suppose we were to make the rule that if you under-report your income by any amount, whether intentionally or not, whether knowingly or not, you go to jail for ten years. That would be a bright and clear line, right? If you know that you reported all your income, you can be 100% sure whether you are going to jail. Why wouldn't that be a good approach? Or would it be?
>> There is absolutely a bright and clear (albeit very complicated) line for tax fraud.
> In other words: There isn't a bright and clear line?
There is. A “bright and clear line” means a test is objective, not that it’s simple [1].
>> The IRS probably won't go after you if you underpay by a penny — but you're still breaking the law if you do it intentionally.
> In other words: There isn't a bright and clear line?
There is. Just because something is not consistently enforced doesn’t mean it’s not clearly illegal. Cops may not fine you if they see you jaywalking, but you’re still unambiguously breaking the law if you cross the street outside of the crosswalk.
> OK, so suppose we were to make the rule that if you under-report your income by any amount, whether intentionally or not, whether knowingly or not, you go to jail for ten years. That would be a bright and clear line, right? If you know that you reported all your income, you can be 100% sure whether you are going to jail. Why wouldn't that be a good approach? Or would it be?
Most crimes (although not statutory rape) require intent to be shown [2]. No justice system is perfect; innocent people get convicted and guilty people go unpunished. A good law should allow people to unambiguously know when they would break it.
Except you were obviously not using the phrase in that sense? There is absolutely no contradiction between "objective" and "taking into account many details of the individual case". There is absolutely no problem with writing a law that objectively specifies that the punishment for "17 years and 364 day" is going to be only marginally worse than for "18 years", for example, which you used as an example for why a "bright and clear line" would be necessary, and that that would mean that you have to have to have a strict cut-off point between hard punishment and no punishment at all.
> There is. Just because something is not consistently enforced doesn’t mean it’s not clearly illegal. Cops may not fine you if they see you jaywalking, but you’re still unambiguously breaking the law if you cross the street outside of the crosswalk.
In other words: There isn't. If you are breaking the law, but there are pretty reliably no consequences, in which sense are you then breaking the law that would be relevant to this discussion?
> Most crimes (although not statutory rape) require intent to be shown [2].
In other words: For most crimes, there is less of a "bright and clear line", and things generally seem to be working well, or even better. So, how is that a justificaton for having more of a "bright and clear line"?
> No justice system is perfect; innocent people get convicted and guilty people go unpunished.
Well ... sure? I am not sure why you mention that?!
> A good law should allow people to unambiguously know when they would break it.
I am not sure I would agree with that. I mean, yes, ideally, people should be able to know in advance what would constitute breaking a given law and what would not, sure. But the problem I see is that this ideal goal is in conflict with other goals of a legal system, such as being just. And "bright and clear lines" in the sense in which you are using the phrase tend to have very nasty side effects in that regard, because they massively increase the probability that honest mistakes that harm noone are punished the same as premeditated harming of another human, but also that someone intentionally doing harm that just so happens to be on the legal side of the "bright and clear line" goes unpunished.
So, I would agree that laws should be as objective as possible in describing what is illegal. But at the same time, circumstances should always be considered so as to avoid injustice that results from overly simplistic rules being applied. That doesn't mean that judges should make arbitrary decisions, though, in that there is no problem with at least attempting to codify the details of how to justly judge individual cases rather than settling for the simplest rule possible. While you might never be able to codify all the possible things to consider, that does not mean that the only other option is to make a simplistic rule.
Let me quote you:
> But here's the thing: the law can't take that into account. The law needs a bright and clear line, so you can know how not to break it. And so even though there's not really a difference between 17 years 364 days vs. 18 years, one can consent to sex with an adult while the other cannot.
So ... your argument was what exactly? That the law could not possibly spell out a more complicated rule than "below 18 is illegal", because ... it is impossible to do so in the English language? Or what?
As it happens, statutory rape law is already more complicated than a cutoff at 18. There are often exemptions for people who are married, or close in age. But the line is still objective — a “bright and clear line”, so to speak.
If that is what you meant to say, you really didn't explain that well in your original comment, as you explicitly claimed that the law could not take details into account, rather than that it should specifically avoid subjective criteria. After all, it is perfectly possible to take into account the fact that not all people of the same age have the same maturity without resorting to subjective criteria--such as by making the transition from legal to illegal sufficiently smooth in terms of possible punishment that the punishment statistically scales with the probability of the sexual interaction being with an immature person: While that obviously does not perfectly match the consequences to the actual maturity of each individual, it would give a much better correspondence between punishment and the abusiveness of the relationship overall than a hard cut-off, while still being based on objective criteria.
Now, you are right that the law is actually usually more complicated than a single hard cut-off, but it seems that it's often still doing a poor job due to lack of nuance.
We don't give 12-year-olds a 2/3 fractional vote because a) that introduces a ton of complexity for not much gain, and because b) children are essentially legally "owned" by their parents so the odds of their compulsion to vote a certain way rise dramatically. (Some people didn't want to give women suffrage last century because they figured it would just double the exact ratio of the existing men's vote tallies. And now a century later we have wives that still vote only to please their husband.)
Some things might work -- I don't think this would fly in the US but maybe you could allow 19-year-olds to buy beer (not liquor) like in some states in the 70s.
But how does that work for kids and sex? You want to embed the "first base, second base" junior high sex metaphor into the LAW? A 19-year-old can fondle a 16-year-old's breasts but not her genitals?
Again: "bright" and "clear" have legal and common-sense context here.
Which might be true or not, but in any case does not support the claim that it is somehow inherently impossible.
> and because b) children are essentially legally "owned" by their parents so the odds of their compulsion to vote a certain way rise dramatically.
Well, no, children are not in any sense of the word owned by their parents. Compulsion should not be possible in any sane voting system, as elections are secret. What remains is that chances are that the younger a person, the more their parents tend to have influence over their decisionmaking, which might be a reason to limit their ability to vote accordingly. But you might have noticed that people don't switch from "no clue how to make an independent decision" to "completely mature and independent" on their 18th birthday? So, if your goal is to limit their political influence according to their independence/maturity, why is a hard cut-off at 18 the best solution?
> Some people didn't want to give women suffrage last century because they figured it would just double the exact ratio of the existing men's vote tallies.
Which is obviously a bullshit argument? You don't want to change who can vote because you fear that it won't change the result of the election? And the solution is to make sure that the result of the election doesn't change? Wut?
> And now a century later we have wives that still vote only to please their husband.
See above, secret ballot and all that.
> But how does that work for kids and sex?
Well, the claim was that the difference between "17 years and 364 days" and "18 years" was not a meaningful difference in reality (I would agree), but that somehow it was impossible to make a law that takes that into consideration, and so we don't have any other choice but to have a law that maps one of those to no consequences at all while the other is life-ruining. Which is obviously bullshit, as you obviously trivially can make a law that specifies that the punishment, say, linearily increases from none at 18 years to whatever the maximum is at 14 or whatever. That would be perfectly objective criteria that statistically map much better to the actual lack of maturity of the victim, without any hard cut-off where insignificant differences in the facts of the matter (and thus honest mistakes) result in massively diverging consequences.
> The law needs a bright and clear line, so you can know how not to break it.
But that isn’t true in reality for kids/adults close in age, nor is it a fixed line for every jurisdiction in the states. You actually have to know the law.
> But that isn’t true in reality for kids/adults close in age, nor is it a fixed line for every jurisdiction in the states. You actually have to know the law.
Of course you have to know the law. But the law is well-defined, and you can figure out with 100% certainty whether you'd be breaking local statutory rape laws given your age and your partner's.
I suppose it's possible that there exists an unclear statutory rape law somewhere in the world, but most laws are written to avoid ambiguity. Can you cite a U.S. statutory rape law where it would be ambiguous whether or not sex qualifies as rape given the parties' ages?
Anyways, given that the girl Minsky allegedly slept with was 17, I’m not sure why the underage argument came into play at all given what I know about federal law, at least. But then IANAL. Anyways, all the articles I’ve read about Minsky in this affair say trafficking was involved but not specifically child trafficking, so I wonder if the fed’s case was based more around the trafficking and coercion aspects and not the ages of the girls involved
Also, another thing to consider: age of consent is often different when prostitution is involved, so guy could have legal consensual sex with a 16 year old, but not if they or someone else paid for it.
If you have an example of a set of ambiguous statutory rape laws, please cite it. Otherwise, I think this conversation has reached a stalemate.
Two common exceptions are: 1) similarity in age, and 2) sex with spouse, if married.
Exceptions can have their own exceptions. For example, if a 17 year old has sex with a 25 year old, it may be legal for an exception based on similarity in age. However, the law may also prohibit that exception if there is sex between a teacher and a student in the teacher's class.
So martinky24 was wrong in writing "Minor's cannot consent". It's an understandable wrong, as those exceptions aren't really that relevant to the topic at hand.
But jelliclesfarm is also wrong in thinking the argument is that minors are "non-beings". Minors are beings with fewer freedoms than adults. Depending on their age, they can be forced to attend school and to follow juvenile curfew laws. They can be prevented from purchasing alcohol, and from driving vehicles, or having a full-time job.
All of these remove some of their free agency. Just like restrictions on who minors are free to have sex with.
In most states, the law is not written "it's illegal to have sex with a 15-year-old PERIOD." Instead, the law is usually "it's illegal FOR AN ADULT to have sex with a 15-year-old."
You are correct that -- for states that a) don't have the "for an adult" clause and b) don't have "Romeo & Juliet" clause -- the law as written DOES imply both kids are guilty. And I'd bet the cost of a nice dinner that, in some of those jurisdictions, both kids in a case like that WERE charged.
The natural next question is, "where's the line?" A 20 year old and a two year old is obviously wrong, but a 25 year old and a 75 year old seems okay, if a bit weird. And yes, not every person the same age has the same amount of experience and maturity.
But here's the thing: the law can't take that into account. The law needs a bright and clear line, so you can know how not to break it. And so even though there's not really a difference between 17 years 364 days vs. 18 years, one can consent to sex with an adult while the other cannot. Just like one day makes the difference between being able to vote, or drink, or get a driver's license.