The recent discussion made me wonder about the actual legal norm as to general ages of consent. I set aside for purposes of this post what implications this data might have (though I hope to post soon some modest remarks on this, recognizing that of course the "ought" may well be quite different from "is," and inevitably has to be, given how many different "is"es there are).
Here I just want to summarize the data, which I've posted in this Excel spreadsheet. The age of consent information is based largely on Wikipedia (check out this map) and CoolNurse, with a little bit of checking on my part; certainly any scholarly work on this would have to rely on more reliable data, but this struck me as close enough for the rough aggregate results I'm reporting.
A few notes about how I chose the jurisdictions to survey. First, I thought that it would be most helpful to talk both about the U.S. separately, and the Western World more broadly, since we are part of a broader Western culture that shares a good deal in history and values, so that the other Western countries' judgment would at least be of some interest to us. The boundaries of the Western World are of course not precisely defined, but I basically chose the U.S., Europe West of the Iron Curtain (though including all of Germany and excluding the pinpoint countries), plus the Western Anglosphere, which is to say Australia, Canada, and New Zealand. My sense is that these are the countries that are most likely to be closest enough to us in cultural history and other values.
Second, I focused on what I call the "general age of consent," which excludes lower ages of consent when the other partner is within some range in age, or when the parties are married (which would generally require parental consent), and also excludes higher ages of consent when the other partner is in some specific position of authority over the younger partner (plus an unusual Massachusetts rule which sets the age of consent at 18 if the younger person is "of chaste life," the age otherwise being 16). Third, I focused (partly for the sake of convenience and partly because of the special moral significance of legal rules) on the legal rules, and not on social practices, which might on one hand frown on certain relationships that are legal, and on the other decline to enforce the law as to certain relationships that are illegal.
In any case, here's the summary of the data:
Throughout the Western World (population 750 million), sex is generally permitted with (for all items but the last, I give a percentage that includes the lower age-of-consent countries)
13-year-olds for 6% of the population (Spain);
14-year-olds for 27% of the population (add Austria, Germany, Iceland, Italy, and Portugal;
15-year-olds for 38% of the population (add Denmark, France, and Sweden);
16-year-olds for 77% of the population (add nearly all the remaining Western countries and 30 U.S. states plus the District of Columbia);
17-year-olds for 88% of the population (add Ireland, South Australia, and Tasmania and 8 U.S. states);
only 18-year-olds and above for 12% of the population (12 U.S. states).
Within the U.S., the general age of consent is
16 in 30 states plus D.C. (representing 45% of the population);
17 in 8 states (representing 25% of the population);
18 in 12 states (representing 30% of the population, California and Florida accounting for the majority of this).
The median in the U.S. is thus age 16 if you go by state count, but 17 if you go by population, though nearly half the population is in the age-16 states.
The median in the U.S. plus the Anglosphere is solidly age 16.
The median in the Western World is also 16.
The median in Western Europe is 15 (with 63% of the population living in 15-or-below countries).
Throughout the U.S., the general age of consent is always 16 or above (though this has been so only for the last several years). In the rest of the Western World, the general age of consent is always 16 or below, except for Ireland, South Australia, and Tasmania, which together account for a little over 1% of the non-U.S. Western population.
I stress again: I'm giving these numbers as potentially interesting data; I hope to talk in a later post about the implications of this data, but for now I just want to note the data. If there are errors in the data, please e-mail me corrections. And naturally please do not rely on any of this age-of-consent data as legal guidance for your own personal behavior ....
How did I conclude that?
If you travel interstate to have sex with someone under 18, you've committed a federal crime.
So there is a de facto federal age of consent.
I'm not educated in the law, but if there was a de facto federal age of consent, wouldn't it trump state laws of consent in all circumstances, not just where interstate travel (commerce?) is involved?
Man, is that not literally the LAST thing, besides narcotics or explosives, that I want airport security to find in my carry-on?
18 USC 2423(b) also criminalizes interstate travel to engage in "illicit sexual conduct," which includes "a sexual act . . . with a person under 18 years of age that would be in violation of chapter 109A if the sexual act occurred in the special maritime and territorial jurisdiction of the United States."
And chapter 109A contains a list of various sex offenses, most of which are nonconsensual -- aggravated sexual abuse under 18 USC 2241 (which covers interstate travel for sex with children under 12) and sexual abuse under 18 USC 2242.
The only statutory-rape-type provision in chapter 109A is 18 USC 2243, "sexual abuse of a minor or ward," which criminalizes a "sexual act" with someone at least 12 but under 16 AND who's at least four years younger than the partner; and 18 USC 2244 also punishes "sexual contact" of the same sort. (Also there's a part in 18 USC 2242(2)(A) criminalizing sexual acts with someone who is "incapable of appraising the nature of the conduct," but that seems unlikely to be an age-based provision.)
So while 18 USC 2423 criminalizes interstate travel for "illicit acts" with someone under 18, unless there's something nonconsensual (and the partner is at least 12), the act doesn't seem to become "illicit" unless the partner is under 16 and with an at-least-four-year age difference.
Anyway, that's just from my quick perusal of the statutes -- which would establish at most a federal age of consent of 16 (that's a general age, since there's the exception for slight age differences), which is no higher than any state's age of consent. And even that's pushing it, since it's only when there's interstate travel with that intent, which I doubt is true of most sex in the U.S.
Is there some statute I'm missing?
Then 18 U.S.C. § 2243 criminalizing "travel[ing] in interstate commerce ... for the purpose of engaging in any illicit sexual conduct with another person shall be fined under this title or imprisoned," but defines "illicit sexual conduct" to mean "a sexual act ... with a person under 18 years of age that would be in violation of chapter 109A if the sexual act occurred in the special maritime and territorial jurisdiction of the United States" or "any commercial sex act ... with a person under 18 years of age."
So as I read it, traveling interstate to have sex with a 16- or 17-year-old is not a federal crime unless the sex is to be commercial. Or am I missing something?
(Even if the law did bar traveling to have sex with a 16- or 17-year-old, I'm not sure this would be "in an important sense" a "federal[] age of consent," since it would apply to a tiny fraction of all sexual acts involving 16- or 17-year-olds. But in any event, as I read it, the law covers only interstate travel to have sex with under-16-year-olds.)
Canadian law is like that (although even more complex, thanks to recent changes), I'm not sure about any other jurisdictions.
There's far worse...
But, of course, surely no US court would ever cite to foreign practice in interpreting our law.
But, the good news is that we are nowhere near as sexually repressed as Madagascar! Whew, that's a relief!
I'm only interested in this topic because I'm researching for a book --- HONEST!!!!
Probably not.
And I'm with Ugh: legal to copulate, legal to record copulation, at least for personal use (reminiscing about old times, er, young times). Not sure about internet posting.
you generally need to be 16 to get laid, 18 to vote and go to war, but 21 to buy a beer
Right, that is so backwards. How do you get laid without beer?
I would propose 16 to vote, 18 to drink, 21 to have sex, and 50 to go to war.
1.) Does this apply to all sex, or only to commercial sex (i.e. prostitutes)? In other words, if a 24 y.o. American goes to, say, Mexico or Brazil and seduces a 14 y.o., but no money changes hands, has he broken the law?
2.) If the answer to #1 is 'yes,' what is the constitutional justification for it, if there is no commerce involved? (Let's say the guy walks across the border from the USA to Mexico, and does not use any commercial transportation).
3.) Is there a marriage exception? Marriage between a 14 y.o. and a 24 y.o. would not be very unusual in Latin American culture.
The usual disclaimer, just in case the Feds (or worse yet, my wife) are monitoring my computer: This is all just for academic interest!!
In the US and the rest of the Western World until quite recently you had to be married too. That is, when the AOC was around 14 or so, fornication was a crime. So even absent a statutory rape charge the unmarried could be prosecuted. The last fornication laws still on the books in the US were implicitly invalidated by Lawrence.
Please please please put that sort of thing at the top of your post. I was halfway done reading it when this girl walked into my office with an AC/DC t-shirt on...
If true, that's bad news for all of the college freshmen with high school sweethearts who are still in high school (or, of course, college freshmen who have yet to turn 18).
You forgot: 16 (in most states, or close to) to drive. Once you throw that into the mix, it all makes sense: you can have sex once you've acquired a place in which to fool around, away from parental eyes; you can vote once you've had a pregnancy scare; thou shalt vote sober, at least once; and you can be sent off to war with fond memories of home.
the law is called The Protect Act.
in brief, it prohibits US citizens, while out of the country to have sex with minors UNDER 16 and "commercial sex" with those under 18.
imo, this law is dumb in oh so many ways, but it's the law.
note that the old law used to allow (non commercial sex) with any age minor outside our borders as long as it was not in contravention of local laws. the law as it now stands (as i read it), makes it illegal to have sex with a 15 yr old in country X, even if the laws of country X allow it.
i cannot see how these laws are "just." how does the US govt. have jurisdiction over acts of US citizens while in other countries? it just strikes me as wrong on oh so many levels.
i can understand the intent (it's always to protect the children that the dumbest and most overreaching laws are passed) that just because country X says you can have sex with a 12 yr old or whatever, that you can't get away with that IF you are a US citizen, but still- if the act does not occur in the US how can the feds possibly have jurisdiction? but im not a lawyer.
Same here. I was hoping that one of the lawyer-types would chime in and explain things to us. My (vague and possibly incorrect) layman's understanding was that the commercial-sex part has been upheld constitutionally on commerce clause grounds (and to me, even that seems like a stretch).
But what possible Constitutional justification can there be for the non-commercial prohibition?? (I guess it's buried in the 'save the children from imaginary hobgoblins' clause, which comes right next to the 'penumbras and emanations' clause, Right?)
Case in Houston a few years ago Man married a 12year old with parental consent. He was charged with statutory. Even back then 12 was too young. He got off. Both him and the girl's family were from Mexico 12 was normal for them so the jury let him walk.
Put the Hispanic numbers in and see the age drop. Maybe close to 14.
You mean like this case?
I'm sure someone here can find a way to use the "can't tax exports" clause as a defense.
except the statute DOESN'T require that (intention). it requires no intention at all. merely that once you are IN the foreign country you have either
1) sex with a minor under 16
OR
2) commercial sex with a minor under 18
the OLD law had a clause about intention etc. the new law, the protect act criminalizes either (1) or (2) regardless of whether you had intent to do either act when you left the country.
OK, I understand what you are saying, but I don't see where it addresses either of the following hypotheticals:
A.) 22 yo naturalized US citizen from Tijuana, now living in San Diego, walks across the border to have sex with his 15 yo fiance whom he plans to marry someday. Then he walks back. He does not spend one dime on anything. Has he broken the law? And, if so, where is the commerce?
B.) 22 yo American goes overseas to study at a foreign university. Six months later, he happens to fall in love with a 15 yo local girl, in an unplanned romance, and he sleeps with her. Has he broken the law? If so, where was the intent, if his original plan was simply to study?
as i read it. yes, he has. no commerce required. sex with someone under 16 while out of the country. illegal.
ditto for your second scenario. no intent required.
---
Semi-serious question about the overseas/16 year old thing. If some states place the age of sexual consent at 15, when married, does that mean that you cannot legally wed, have sex that night in your hotel room, and then go overseas for the honeymoon?
Now, I think that 15 is too young for both sex and marriage, so I have little (moral) problem with prohibiting this, but it seems like a jurisdictional nightmare.
Before 1986, 18 USC 2421 (the Mann Act) read as follows:
It was greatly amended in 1986 (and then slightly amended in 1998 [to add attempt and change the penalties]), so that it now reads:
So you see the prostitution is still there, but the "immoral purposes" are now just replaced with criminal sexual activity. (And the woman or girl is now just any individual.) Of course that's still just transporting someone else, and doesn't apply to going yourself.
Similarly, before 1986, the following section, 18 USC 2422, read as follows:
Now it's changed in similar ways to the previous section, and reads:
The following section, 18 USC 2423, was also greatly amended in 1986 and then amended again, most substantially in 1998 and 2003. I'm not sure how it read before, but now it reads:
The contents of the "illicit sexual conduct" under chapter 109A were discussed in previous comments in this thread.
First, note that the prosecution would have to be under 18 USC 2423(b) or (c) above, depending whether the travel was interstate or to a foreign country.
And for that to happen, "illicit sexual conduct" would have to take place, as defined in subsection (f). Ignoring the commercial sex act part in (f)(2), we're referred to things that would be criminal under chapter 109A if they had happened in "the special maritime and territorial jurisdiction of the United States."
The only part of chapter 109A that seems applicable here is 18 USC 2243. (As I explained in a previous comment, the other sections of chapter 109A, mostly about non-consensual sex or sex with someone under 12, seem inapplicable here.) Now 18 USC 2243 says, in relevant part:
So, you see, the defense in 18 USC 2243(c)(2) gets you out of the federal crime if the couple was married.
On the other hand, if an unmarried 20-year-old and 15-year-old cross state lines in order to have sex, then even if the activity is legal in both the origin state and the destination state (though this doesn't seem to be the case anywhere now), the crossing of the state lines seems to be a federal crime.
When you get around to updating the spreadsheet -- and averages for the "Western" world -- on a percentage basis by age, having included South America, please post a full update.
I'd really like to see how that changes the statistics.
Thanks much.
Um, as for the last part... I have a few semi-serious, semi-sarcastic answers. If the intrastate travel is on interstate highway, there may be a colourable argument that it is, indeed, interstate travel.
I cannot help but wonder whether that would apply in Hawaii and/or Alaska. I could see intrastate travel in Alaska that could, possibly, be subject to maritime jurisdiction, maybe? Alaska, however, lacks interstate highway; Hawaii does not, as it has the H-1 etc roadway. I presume that it might depend on whether or not "intrastate" Hawaiian travel involves moving from island to island in such a manner as to trigger federal jurisdiction.
Foxnews
Hmm, while age of majority is different than age of consent, I wonder how they are able to do this? If she turns out to be 18, she should, morally, be able to sue them for kidnapping her. But I doubt if she will be able to.