It Looks Like Justice Ginsburg Likely Was the Victim of a Drafting Error

after all; and it looks like I erroneously failed to recognize just how likely this was to be an error.

Here’s what I wrote on the subject when I first dealt with it last year:

[The] Sex Bias in the U.S. Code [report] was prepared for the Commission by former ACLU lawyer Brenda Feigen-Fasteau, then-professor Ruth Bader Ginsburg, and 15 Columbia Law School students working under their supervision. The reporters went through federal statutes, identified various sex-based classifications and terms, and suggested ways to eliminate them. In the process, here’s what the report said on p. 95 about the relevant statu[t]e, 18 U.S.C. § 2032:

Under 18 U.S.C. §§1153 and 2032, it is a crime for a person to have carnal knowledge of a female not his wife who has not reached 16 years of age. “Rape” is defined [as limited to female victims]. . . . The “statutory rape” offense is defined in these sections in much the same way: the victim must be a female and the offender a male . . . .

These provisions clearly fail to comply with the equal rights principle. They fail to recognize that women of all ages are not the only targets of sexual assault; men and boys can also be the victims of rape. In the case of statutory rape, the immaturity and vul[n]erability of young people of both sexes could be protected through appropriately drawn, sex-neutral proscriptions. The Model Penal Code and S. 1400 §1633 require a substantial age differental between the offender and victim, thus declaring criminal only those situations in which overbearing or coercion may play a part.

So far, not a proposal to generally lower the age of consent — it’s a call for sex-neutral statutes, and for making the statutory rape rules turn on the difference in age between the parties. One can argue against this on various grounds, and it’s not clear why the age differential vs. clear cutoff issue is relevant to the “Sex Bias in the U.S. Code” issue. Moreover, S. 1400 §1633 provided (at least in the version that I could find), that “sexual abuse of a minor” (essentially statutory rape) be limited to victims who are under 16, and who are “at least five years younger than” the defendant. This could be criticized, since it would allow 17-year-olds to have sex with 12-year-olds, which many people would treat as child molestation and not just young love. But at least it doesn’t make 12-year-olds fair game for adults.

But here’s the suggestion [given under the heading “Recommendations”] on p. 102:

18 U.S.C. §2032 — Eliminate the phrase “carnal knowledge of any female, not his wife who has not attained the age of sixteen years” and substitute a Federal, sex-neutral definition of the offense patterned after S. 1400 §1633: A person is guilty of an offense if he engages in a sexual act with another person, not his spouse, and (1) compels the other person to participate: (A) by force or (B) by threatening or placing the other person in fear that any person will imminently be subjected to death, serious bodily injury, or kidnapping; (2) has substantially impaired the other person’s power to appraise or control the conduct by administering or employing a drug or intoxicant without the knowledge or against the will of such other person, or by other means; or (3) the other person is, in fact, less than 12 years old.

Under this proposal, it seems to me that sex with 12-year-olds and older would be legalized in the federal territorial and maritime jurisdiction, regardless of the age of the other party. This wouldn’t be a “Romeo-and-Juliet” law aimed at preventing prosecution of young lovers — it would equally be a dirty-old-man-and-Juliet law. And while there are plausible debates about what the age of consent should be, it seems to me that simply lowering it to 12 would be quite a striking and unjustified change.

Now this all happened nearly 30 years ago; but I’m still curious about what was happening here. Am I misreading the proposal? Am I missing some important statutory context, such as other federal statutes that would have banned sex by adults with 12-year-olds even when this statute had been relaxed to allow it?

If I’m not mistaken or reading this out of context, then were many in the late 1970s feminist movement really in favor of lowering the age of consent to 12? Did Justice Ginsburg hold this view? Or was this something that was added by an overzealous student and not caught by her (of course she had the responsibility of checking everything produced by the people she was supervising or even by her coauthor, but mistakes happen)? Might it even have been an inadvertent drafting error? (As to 18 U.S.C. §1153 — which applied to Indian country — the other section mentioned alongside §2032 on p. 95, the report on p. 103 simply suggests that it be changed to the S. 1400, §1633 version.)

On reconsidering the matter, I now think there’s very strong evidence that there was indeed an inadvertent drafting error. The error is not, as I thought some had suggested, a reference to “12” instead of “16.” Rather, the error is that the report quite likely was intended to quote the Romeo-and-Juliet language from §1633 (the provision it cited in the “Recommendations”), and instead inadvertently quoted the flat-age-12 age-of-consent language from §1631. I think this because the report did indeed cite §1633 in the recommendations; because it had discussed it earlier in the text; because it called for sex-neutralizing the rape definition elsewhere in the Recommendations (see item 1 below); and because the report (as I pointed aut above) suggested that §1153, governing Indian territory, borrow the language from §1633, and there’s little reason why it would have a different recognition for §1153 and for §2032, the provision that governs federal enclaves.

Here’s what I now think the report was probably intending to recommend:

(1) Elsewhere in the recommendations, the report would have sex-neutralized the definition of rape (“A sex-neutral definition of rape, such as the one set forth in S. 1400 §1631 should be added to Title 18 or Title 10 and referred to throughout for the definition of the offense.”).

(2) The recommendation as to “carnal knowledge” was not intended just to sex-neutralize the definition of rape or carnal knowledge, but rather to replace the flat age of consent of 16 with the more complex “Romeo-and-Juliet scheme” (under which sex with under-16-year-olds was legal for people who were less than 5 years older, a misdemeanor for under-21-year-olds who were more than 5 years older than the victim, and a felony punishable by at most 3 years in prison for adults). This is consistent with the earlier discussion in the report, where the report praises Romeo-and-Juliet laws, and consistent with the fact that it had already recommended that rape be sex-neutralized (see item 1 above).

(3) The recommendation correctly cited §1633 but erroneously quoted the text from §1631; it should have read “patterned after S. 1400 §1633: A person is guilty of an offense if he engages in a sexual act with another person who is not his spouse, who is less than sixteen years old, and who is at least five years younger than the actor. . . .”

(4) The recommendations were also intended to make sure that any sex with under-12-year-olds, regardless of the age of the other party, would be illegal; but that would have been accomplished through the recommendation that “A sex-neutral definition of rape, such as the one set forth in S. 1400 §1631 should be added to Title 18 or Title 10 and referred to throughout for the definition of the offense.” That definition would have included a flat ban on sex with under-12-year-olds.

So a person who was just reading the report would have rightly inferred, I think, that the report was meaning to change the age of consent. (That’s why it recommends including §1633, the main purpose of which is to change the age of consent, not to sex-neutralize the offense.) A casual reader might also have inferred that the report was meaning to change the age of consent to 12, period, which is what the text says.

But the careful reader — which I, unfortunately, was not (especially in my more recent post on the subject here) — should have realized that the report was likely intending to recommend replacing the “carnal knowledge” ban not with a flat age of consent of 12 (what the text said) but rather with a graduated Romeo-and-Juliet age of consent that would have been set at 16 for adults (what the §1633 that the text cited said).

So while I still disagree in some measure with some of Tim Noah’s analysis in Slate (I think the report was endorsing a change in the age of consent, and not just talking about sex-neutralization, and I think Ginsburg’s critics’ views may well have been just a reasonable mistake and not a deliberate smear), and while I stand by my points about the report’s recommendation to decriminalize prostitution and its likely recommendation to decriminalize polygamy, I now find it highly unlikely that the authors of the report really did intend to recommend that the age of consent be generally lowered to 12. Rather, the recommendations cited the right subsection but quoted the wrong one; and the intended purpose was to decriminalize sex between 12-year-olds and up-to-16/17-year-olds and substantially lower the maximum penalties for sex between 12-year-olds and older partners (from 15 years to 3 years) — a scheme that is probably still less restrictive than many (including me) would endorse, but that makes much more sense than a flat age of consent of 12.

Ginsburg’s critics were led astray by this error, which suggests that their characterization of Ginsburg’s views was likely a mistake of their own, rather than a deliberate “smear.” But I now do think that the critics’ assertions — and my own past assertions — were indeed likely mistaken.

UPDATE: I’ve updated the text above to reflect the punishment that S. 1400 §1633 would have authorized for sex between adults (over age 21) and 12-year-olds — it would have been at most 3 years in prison.

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