Friday, October 31, 2003
Yesterday Vice Squad was in attendance at a talk by Judith Levine, author
of the highly controversial book Harmful to Minors. The talk was entitled "Crimes
of Passion: Statutory Rape, Female Desire, and the Ambiguities of Consent."
I'll try to provide some of the flavor of the talk below, though no one
should fully rely upon my memory and notes. (I also left a few minutes,
I guess, before the Q&A portion came to an end.)
Ms. Levine told the (true) story of a love affair between a 20-year-old
young man and a 13-year-old girl. Her parents did all that they could to
disrupt or destroy the affair, it seems, including taking legal action. The
young couple was persistent, however, and eventually they ran off together.
After a few weeks, they were spotted, and the man was later sentenced to
12 to 24 years in prison, though the girl emphasized that their relationship
was consensual, and she did not feel that any crime at all had been committed.
It seemed to me that Ms. Levine presented this case as if it represented a
miscarriage of justice. I would characterize her main point as involving the
word "ambiguities" in her title: real relationships, including adult/teen
ones, involve ambiguities, whereas the statutory law brooks no ambiguity. The
impression that I got was that Ms. Levine thinks that the criminal law, at
least, is not the appropriate tool for societal regulation of
adult/young teen relationships. She spoke approvingly of the Dutch approach.
Apparently, in the Netherlands, adults can have legal consensual relationships
with 12 to 16-year olds, as long as the adult is not in some sort of power
relationship with the youth (e.g., teacher, priest). There is a state-supported
system of some type (notes and memory are sketchy here) that provides a place
for the youngsters to go if they begin to feel uncomfortable or worse with
the relationship (and they can involve their parents). But the parents of
the youth cannot ask the state to interfere just because they disapprove.
Once the situation has been brought to the attention of the state by the
young person, apparently some sort of settlement is sought, in a negotiation
that involves the adult member of the couple. That is, the Netherlands seems to
keep the criminal law pretty much on the sideline when it comes to regulating
consensual relationships between adults and 12 to 16-year-old kids.
Should the US consider a Netherlands-style approach? Levine emphasized that
the US and the Netherlands are so different that being 12-years old means
something quite different in the two countries; nevertheless, she seemed
to favor the Netherlands approach. To this "conclusion", I guess I would have
to render the Scottish verdict of "not proven," at least on the basis of the
Levine talk alone. That there is ambiguity within relationships and that
the criminal justice system sometimes errs in dealing with that ambiguity seems
more-or-less certain to me. But whether the parents of a 13-year old girl,
distraught over her relationship, say, with a 50-year old man, should
have no standing to involve the state to preclude the relationship -- well,
there I am far from convinced.
Update, November 1, 2003: As is becoming the custom, Vice Squad's ramblings
about adult/child sexual relationships were preceded and superseded by
Will Baude at Crescat Sententia; see here and here. Will (in the second of the
linked posts) proposes eliminating a bright-line statutory rape law with "a rule
of legal presumption. Say, perhaps, that children are presumed not to be able
to consent to sexual intercourse with somebody much older or more powerful
than they, but that this presumption is rebuttable (by, for example, combined
testimony of the child and the parent, or perhaps a psychiatrist's examination,
or . . .). Then limit this "rebuttable presumption range" and maintain some
absolute lower bound, whether that's 12, 14, or something else." A similar
suggestion was made by an astute audience member at the Levine talk;
Ms. Levine, it seemed to me, was not very receptive to the proposal:
if anything, she seemed to want the presumption to go the other way, that
such relationships should be presumed consensual in the absence of evidence
to the contrary.
A brief review of Judith Levine's book prepared by Will Baude is also available on-line,
here. I believe that the review was originally prepared as a class assignment.
What sort of excellent undergraduate institution would have courses that
encourage such creative thinking?