AND THE AGE OF CONSENT: [UPDATE: Since posting this, I have concluded that Justice Ginsburg was likely the victim of a drafting error, and the report's critics, including me, themselves erred in not seeing the error. More here.]

Several days ago, I ran across an allegation — one which has been repeated in quite a few places — that a 1977 U.S. Commission on Civil Rights report, co-drafted by then-Professor Ruth Bader Ginsburg, suggested that the age of consent be lowered to 12. That struck me as a likely myth or an out-of-context quote, so I decided to look into it.

To my surprise, the allegation seems largely accurate, though in the limited context of the federal territorial and maritime jurisdiction. (The report was referring only to federal law, and most sex crimes are covered by state law rather than federal law.) The report was Sex Bias in the U.S. Code, and it 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 statue, 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 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.)

In any event, when I investigate improbable-sounding accusations and find them to be bunk, I like to post about that; so it seems to me that when they prove to be true, it's worth noting them. Again, I'm not sure what this says about Justice Ginsburg's past views, or for that matter her present views; but I'd love to hear any perspective that readers who are familiar with the late 1970s debate might be able to provide (preferably with details and citations).