The Volokh Conspiracy - Infantilizing 20-Year-Olds:

An Oklahoma legislator is proposing this bill (see here for a news story); the new provision is italicized:

Section 1111. A. Rape is an act of sexual intercourse involving vaginal or anal penetration accomplished with a male or female who is not the spouse of the perpetrator [the spousal rape ban is in another section -EV] . . . under any of the following circumstances:

1. Where the victim is under sixteen (16) years of age;

2. Where the victim is incapable through mental illness or any other unsoundness of mind, whether temporary or permanent, of giving legal consent;

3. Where force or violence is used or threatened, accompanied by apparent power of execution to the victim or to another person;

4. Where the victim is intoxicated by a narcotic or anesthetic agent, administered by or with the privity of the accused as a means of forcing the victim to submit;

5. Where the victim is at the time unconscious of the nature of the act and this fact is known to the accused;

6. Where the victim submits to sexual intercourse under the [fraudulently induced] belief that the person committing the act is a spouse, and this belief is induced by artifice, pretense, or concealment practiced by the accused or by the accused in collusion with the spouse with intent to induce that belief . . .

7. Where the victim is under the legal custody or supervision of a state agency, a federal agency, a county, a municipality or a political subdivision and engages in sexual intercourse with a state, federal, county, municipal or political subdivision employee or an employee of a contractor of the state, the federal government, a county, a municipality or a political subdivision that exercises authority over the victim; or

8. Where the victim is at least sixteen (16) years of age and is less than eighteen (18) years of age and is a student, or under the legal custody or supervision of any public or private elementary or secondary school, junior high or high school, or public vocational school, and engages in sexual intercourse with a person who is eighteen (18) years of age or older and is an employee of the same school system; and

9. Where the victim is an undergraduate student under twenty-one (21) years of age attending any college or university in this state or the victim is attending any public or private secondary school in this state, regardless of the person's age, and engages in sexual intercourse with a person who is an employee of the same college, university or school system unless the two persons were legally married prior to enrollment or employment in such college, university or school. . . . .

So it would be a crime, for instance, for (1) a university professor, (2) a staff member, (3) a student (undergraduate or graduate) who works as a research assistant or a teaching assistant, (4) a student who works in a university cafeteria to have sex with a 20-year-old undergraduate man or a woman. These are 20-year-olds, folks, in a state where it's usually perfectly legal to have sex with a 16-year-old.

Now perhaps this was just a drafting error, though a huge drafting error. Maybe they're just looking to go after those awful lecherous professors who prey on students. That is to say "prey" on adult, 20-year-old students, who are legally grownups, and who are constitutionally entitled to make their own decisions about whom to sleep with (see Lawrence v. Texas). These are not 14-year-olds. They aren't mental patients. They aren't drugged or unconscious. They are old enough to fight in a war. They are old enough to marry without anyone's permission. And the state of Oklahoma is seeking to "protect" themselves against their own decisions about whom to have sex with.

Now I should say that I think schools can quite properly prohibit professors from sleeping with their current students, on threat of administrative sanction or even dismissal. If I were an administrator, I wouldn't trust a professor's evaluations of his own lovers. Such restrictions are legitimate for employers to impose on their employees, though there are also costs when the restrictions are too broad. (I wouldn't, for instance, prohibit all sex that might possibly indirectly cause a conflict of interest — for instance on the theory that this student, while not in your class, may one day take a class from you — or that might in some situations involve coercion. That, I think, is too much of a burden on consenting adult employees' and students' behavior, even if it does help avoid some problems for the university and for some other students.)

But all this is in any event no reason to make sex between professors and students criminal. And it certainly is no reason to criminalize sex between professors and students who are in completely different classes and even completely different departments. Twenty-year-olds are not foolish children. If they're fools, they're fools like the rest of us can be fools, and are entitled to the costs and benefits of their own folly.

(No, I've never had an affair with a student, whether or not my own, while I was a professor, even before I was married.)

Thanks to reader Sydney Henderson for the pointer.

	[Eugene Volokh, February 9, 2005 at 5:12pm] Trackbacks Infantilizing 20-Year-Olds: An Oklahoma legislator is proposing this bill (see here for a news story); the new provision is italicized: Section 1111. A. Rape is an act of sexual intercourse involving vaginal or anal penetration accomplished with a male or female who is not the spouse of the perpetrator [the spousal rape ban is in another section -EV] . . . under any of the following circumstances: 1. Where the victim is under sixteen (16) years of age; 2. Where the victim is incapable through mental illness or any other unsoundness of mind, whether temporary or permanent, of giving legal consent; 3. Where force or violence is used or threatened, accompanied by apparent power of execution to the victim or to another person; 4. Where the victim is intoxicated by a narcotic or anesthetic agent, administered by or with the privity of the accused as a means of forcing the victim to submit; 5. Where the victim is at the time unconscious of the nature of the act and this fact is known to the accused; 6. Where the victim submits to sexual intercourse under the [fraudulently induced] belief that the person committing the act is a spouse, and this belief is induced by artifice, pretense, or concealment practiced by the accused or by the accused in collusion with the spouse with intent to induce that belief . . . 7. Where the victim is under the legal custody or supervision of a state agency, a federal agency, a county, a municipality or a political subdivision and engages in sexual intercourse with a state, federal, county, municipal or political subdivision employee or an employee of a contractor of the state, the federal government, a county, a municipality or a political subdivision that exercises authority over the victim; or 8. Where the victim is at least sixteen (16) years of age and is less than eighteen (18) years of age and is a student, or under the legal custody or supervision of any public or private elementary or secondary school, junior high or high school, or public vocational school, and engages in sexual intercourse with a person who is eighteen (18) years of age or older and is an employee of the same school system; and 9. Where the victim is an undergraduate student under twenty-one (21) years of age attending any college or university in this state or the victim is attending any public or private secondary school in this state, regardless of the person's age, and engages in sexual intercourse with a person who is an employee of the same college, university or school system unless the two persons were legally married prior to enrollment or employment in such college, university or school. . . . . So it would be a crime, for instance, for (1) a university professor, (2) a staff member, (3) a student (undergraduate or graduate) who works as a research assistant or a teaching assistant, (4) a student who works in a university cafeteria to have sex with a 20-year-old undergraduate man or a woman. These are 20-year-olds, folks, in a state where it's usually perfectly legal to have sex with a 16-year-old. Now perhaps this was just a drafting error, though a huge drafting error. Maybe they're just looking to go after those awful lecherous professors who prey on students. That is to say "prey" on adult, 20-year-old students, who are legally grownups, and who are constitutionally entitled to make their own decisions about whom to sleep with (see Lawrence v. Texas). These are not 14-year-olds. They aren't mental patients. They aren't drugged or unconscious. They are old enough to fight in a war. They are old enough to marry without anyone's permission. And the state of Oklahoma is seeking to "protect" themselves against their own decisions about whom to have sex with. Now I should say that I think schools can quite properly prohibit professors from sleeping with their current students, on threat of administrative sanction or even dismissal. If I were an administrator, I wouldn't trust a professor's evaluations of his own lovers. Such restrictions are legitimate for employers to impose on their employees, though there are also costs when the restrictions are too broad. (I wouldn't, for instance, prohibit all sex that might possibly indirectly cause a conflict of interest — for instance on the theory that this student, while not in your class, may one day take a class from you — or that might in some situations involve coercion. That, I think, is too much of a burden on consenting adult employees' and students' behavior, even if it does help avoid some problems for the university and for some other students.) But all this is in any event no reason to make sex between professors and students criminal. And it certainly is no reason to criminalize sex between professors and students who are in completely different classes and even completely different departments. Twenty-year-olds are not foolish children. If they're fools, they're fools like the rest of us can be fools, and are entitled to the costs and benefits of their own folly. (No, I've never had an affair with a student, whether or not my own, while I was a professor, even before I was married.) Thanks to reader Sydney Henderson for the pointer.