pageok
pageok
pageok
Had Sex with a 14-Year-Old Who Lied About Her Age?

Don't sue the dating service that set the two of you up, in a context where it was clear the dating service wasn't screening members for age (and couldn't reasonably do so). That's basically the holding of Doe v. SexSearch from the Sixth Circuit.

And, no, an incautious statement on the site that "all persons within this site are 18+" isn't going to get the service on the hook. "[H]aving registered for the site himself, Doe knew that SexSearch merely required a user to check a box stating that he or she is at least eighteen, with no corroborating evidence required from the user and no attempt at verification made by SexSearch. As a result, there could be no justifiable reliance on the [18+ statement]." Sounds right to me.

Thanks to How Appealing for the pointer.

DiversityHire:
SexSearch actually worked? I'm going to have to retrain my spam filter.
12.30.2008 9:07pm
Oren:
As a matter of practical advice, what steps does one need to take before sleeping with someone in order to avoid potential liability? (I suppose it could be super-strict-liability, in that no precautionary steps will save you if she turns out to be 15, in which case, the law is truly an ass.)
12.30.2008 9:24pm
Steve2:
As with DiversityHire, I'm amazed that Doe was able to find an actual human female Roe on the service and copulate with her. I've always assumed such sites were just a lower-cost version of the Nigerian Oil Scam.
12.30.2008 9:24pm
Sasha Volokh (mail) (www):
The most egregious mistake in the case is right on the first page: Pro Hoc Vice! Can't these guys get their Latin straight?
12.30.2008 9:30pm
hattio1:
Eugene,
So, is the US attorney going to prosecute the 14-year-old for her violation of the TOS?? Probably not.
12.30.2008 9:30pm
eddie (mail):
DiversityHire: I wouldn't say that in this case SexSearch "worked".
12.30.2008 9:55pm
Jim Rhoads (mail):
Sounds to me this is just another application of that well-recognized and often-used defense caveat emptor.

I see no policy reason to exempt transactions on the internet from basic principles of sales law.
12.30.2008 10:12pm
DiversityHire:
Oren, if setting-up the date involves working around his or her parents' schedule, demand two forms of ID. Also, check for PSAT prep manuals and "Archuleta Was Robbed!" stickers.
12.30.2008 10:28pm
Jim at FSU (mail):
Strict liability for statutory rape. You know, because teenage girls never have access to fake IDs and they are never convincing liars.
12.30.2008 11:05pm
Jonathan F.:
You know, because teenage girls never have access to fake IDs and they are never convincing liars.

Ah, blaming the victim.
12.30.2008 11:18pm
zippypinhead:
Where's Sarcastro when we need his wisdom and insight on the complex legal questions of the day?

Lori Drew probably wishes she had been prosecuted in the Sixth Circuit... the court's tidbit of judicial notice in support of a finding of lack of duty to warn about potential TOS violations by others might have been enough to get a Rule 29 dismissal of the Drew case:
"Internet users’ anonymity and potential for false personal representations are well known."
Want to fake your on-line identity in violation of a website's TOS? Evidently OK in the Sixth Circuit...

Incidentally: What's with kids today? A 14-year old girl buys a $29.95 subscription to a hookup site, claims to be 18, does the deed with another paying subscriber, then dimes the poor sucker out to the cops? Brutal!
12.30.2008 11:30pm
Hoosier:
Oren:
>As a matter of practical advice, what steps does one need to take before sleeping with someone in order to avoid potential liability?<

Take a "MILFs-Only" approach to sexual congress.
12.30.2008 11:30pm
Randy R. (mail):
If she took one of those 'virginity pledges', could she be sued for breach of contract?
12.30.2008 11:37pm
ARCraig (mail):

You know, because teenage girls never have access to fake IDs and they are never convincing liars.

Ah, blaming the victim.


Such a girl is not a victim. She is a liar and a predator, inducing people into committing crimes they have no way to know they are committing. The idea that a man (and of course in practice only a man, absent some other special circumstance) can be prosecuted for having sex with an underage girl even if she showed him a fake ID is horrendous. There is absolutely no mens rea, no criminal intent, in these cases, and calling these men rapists and pedophiles is a gross miscarriage of justice that benefits no one.
12.31.2008 12:20am
lucia (mail) (www):
The ruling doesn't say why the girl later told the police about the encounter. Was she pregnant? Caught in a prostitution sting and turning people in to get a lighter treatment?

I can't help but be curious.

Also, did the girls parents sue sex search? Would they have grounds?
12.31.2008 12:35am
Oren:
ARCraig, a number of women have been convicted along similar lines.
12.31.2008 12:49am
ARCraig (mail):
Oren-

Perhaps I was a bit too rash, but it's no secret that both the justice system (de facto if not de jure) and society tend to take a much harsher view of these situations when the defendant is male. Besides, that wasn't really my main point. I'd say the same thing about an underage boy lying about his age and having sex with an adult of either gender.

The idea of a crime that can be committed unwittingly, which can easily be committed by a person who reasonably believes they are engaging in not just legal, but Constitutionally protected activity, is an abomination. I'm not saying that's what happened in this case- I don't know the details of it- but that's certainly been the case in many a statutory rape prosecution.
12.31.2008 1:50am
Real American (mail):
he made his bed. now he goes to jail for lying in it.
12.31.2008 2:13am
Guest101:
Regardless of the gender of the respective parties, it seems a bit naive to view the underage participant as the "victim" in a situation like this. Perhaps "predator" is a bit too far in the other direction; I would chalk it up to a youthful failure to appreciate the consequences of one's actions, but strict liability for statutory rape really doesn't seem appropriate here.
12.31.2008 2:25am
Oren:
ARCraig, agreed. Statutory rape should not be strict liability but rather something like due diligence -- the defendant still bears the burden of showing that he made an adequate inquiry.
12.31.2008 3:33am
Oren:
Guest, the idea of using the word "victim" is that underage people have the right to have older folks refuse to have sex with them, even if they want it. That seems to me like a reasonable societal obligation to impose on adults.
12.31.2008 3:57am
SirBillsalot (mail):
Walgreens cards anyone under 40 who buys tobacco (for which the legal age is 16). 40!! Their lawyers must be on to something.

So the next time you meet that mature woman claiming to be 39, demand proof.
12.31.2008 6:56am
ShelbyC:

The contract requires that members be “eighteen
or over to register,” but nowhere does SexSearch promise to prevent minors from registering
or to monitor members’ profiles for accuracy. Therefore, the complaint does not state a
breach-of-contract claim because Doe has not alleged that SexSearch has breached any
promise that is actually part of the contract.

Count Two alleges that SexSearch fraudulently represented that “all persons on its
site are ‘18+’ years of age,” and that it “verifies all members profiles prior to posting.”
Compl. ¶¶ 301, 302, J.A. at 47.



Anybody ever get the feeling that these judges aren't really trying?
12.31.2008 7:26am
MCM (mail):
If she took one of those 'virginity pledges', could she be sued for breach of contract?


No privity, unless she pledged her virginity to the plaintiff.
12.31.2008 9:03am
DiverDan (mail):

Incidentally: What's with kids today? A 14-year old girl buys a $29.95 subscription to a hookup site, claims to be 18, does the deed with another paying subscriber, then dimes the poor sucker out to the cops? Brutal!


I want to know what 14 year old female in her right mind pays $29.95 per month to find willing sexual partners? Was she hideously deformed in some way? Although, from my distant memories of being a testosterone besotted 16-year old male, it's hard to imagine any female ugly enough to turn down if she dropped panties and threw herself on the ground in front of me. If she couldn't get laid at her junior high, she just wasn't trying.
12.31.2008 9:16am
Anon321:
Anybody ever get the feeling that these judges aren't really trying?

I think the quotes in the paragraph about count two come from the complaint, not from the website. That is, they're saying that Doe has alleged that SexSearch promises to verify everyone's age, when in fact SexSearch makes no such promise. Or am I missing something?
12.31.2008 10:37am
Awesome-O:
Strict liability for statutory rape. You know, because teenage girls never have access to fake IDs and they are never convincing liars.

This is why I only date MILFs/Cougars.
12.31.2008 10:41am
Awesome-O:
If she took one of those 'virginity pledges', could she be sued for breach of contract?

No privity, unless she pledged her virginity to the plaintiff.


Sorry, you fail Contracts. Intended third-party beneficiary claim, promissory estoppel claim, consideration issues, offer/acceptance, etc.
12.31.2008 10:44am
MCM (mail):
I thought about the intended third-party beneficiary claim, actually. Maybe a father could sue his daughter in that case... hard to think of any other third-party beneficiaries to a virginity pledge.

Obviously the pledge itself has all sorts of issues... I wasn't trying to be serious.
12.31.2008 11:03am
Rich B. (mail):
I think a lot of work here is being done by the assumption that plaintiff "KNEW" that they were not verifying his age, so certainly he knew they were not verifying her age.

Lots of porny sites claim to be free but still require a credit card for "age verification." I don't know if that's a scam or what, but it seems reasonable to me that a person who gave over his credit card information would believe that (along with taking $30), they were also checking to see that he was over 21.
12.31.2008 11:03am
Smokey Behr (mail):
The case was dismissed because the plaintiff didn't try hard enough. He should have produced more documentation and had a better contract lawyer, and maybe the case wouldn't have been dismissed. I'm sure that other TOS-based cases could have been introduced that would have helped to make his point. Remember, most of those TOS are just "clicked through" without the user actually reading them.
12.31.2008 11:35am
methodact:
Anybody ever get the feeling that these judges aren't really trying?
"Trying", would be a slashing the Gordian Knot approach and voiding, ab initio, the entire labyrinth of these never-ending, age discriminatory laws in such matters.

It is every single year that we hear the more money mantra, cloaked as the "State of the Judiciary", that in my book, at least, contends for the vilest of all obscenities. If I didn't think that this was just another one-step-forward, among the many-steps-back, decisions, i would say, ok, let's hold a dialogue over judicial pay.

But until and when we stop calling only upon the pool of Judge Roy Bean clones, for judge's jobs, then I say if you have to amend the Constitution, at least repeal the prohibition against reducing the pay of sitting judges.
12.31.2008 12:30pm
Philistine (mail):

ARCraig, agreed. Statutory rape should not be strict liability but rather something like due diligence -- the defendant still bears the burden of showing that he made an adequate inquiry.


In Ohio, statutory rape isn't strict liability unless the victim is 12 and under. Between 13 and 16, the prosecution needs to show actual knowledge or recklessness.

My guess is that's why the charges were dismissed in the case--in a criminal context, I could definitely see the decision going the other way--finding that the guy wasn't reckless given the statements about vetting on the site.

And really, is any jury likely to convict a guy for sleeping with girl who signed up at "SexSearch"?
12.31.2008 1:02pm
Milhouse (www):
OK, so he can't sue the service. What about the girl? Surely he can sue her, for falsely having represented herself to the agency as being of age.

And what if the charges hadn't been dismissed, and he had ended up in jail? Can a prisoner sue the minor who tricked him into committing the crime that landed him there? I don't see why not.
12.31.2008 2:57pm
David W:
I'm wondering, myself, how the heck he could possibly have been confused. 14-year-olds don't look anything like 18-year-olds! I mean, it'd be one thing if she were 17 and representing herself as 18, but 14?
12.31.2008 3:16pm
methodact:
[H]ow the heck he could possibly have been confused? 14-year-olds don't look anything like 18-year-olds!
Sure she could. As the old joke goes:

"Yes she was twelve, but she looked nine!"
12.31.2008 3:33pm
Mike 'Ralph' Smith:

What's with kids today? A 14-year old girl buys a $29.95 subscription to a hookup site, claims to be 18, does the deed with another paying subscriber, then dimes the poor sucker out to the cops? Brutal!


He probably shorted her on the agreed fee.
12.31.2008 3:41pm
methodact:
Caught in a prostitution sting...
These cases are not infrequently framed as such, in order to extract the most mileage the government can, with such semantics.

cf. Recent headlines here. Particularly telling, are the quite common comments, that usually attend such stories.
12.31.2008 3:45pm
whit:

14-year-olds don't look anything like 18-year-olds!



you are kidding me right? especially with the presence of environmental estrogens (menses being reached at younger and younger ages over time, consequently), it is quite possible, and not uncommon.

i recall surfing huntington several times and meeting girls on the beach who were 14 and 15 that you would never guess were under 18.

there are plenty of girls 14 and 15 yrs old who could easily pass for 18. there are also plenty of girls 18 who could pass for 14. the latter are in hot demand by porn producers for obvious reasons.
12.31.2008 4:16pm
Oren:

hard to think of any other third-party beneficiaries to a virginity pledge.

Hard to think of any first party beneficiaries either, so the contract is void in the first instance for lack of consideration. :-P

Also, Whit is right (although, I'd note that earlier menses is also potentially a product of better childhood nutrition).
12.31.2008 4:34pm
wfjag:
David W wrote:

I'm wondering, myself, how the heck he could possibly have been confused. 14-year-olds don't look anything like 18-year-olds! I mean, it'd be one thing if she were 17 and representing herself as 18, but 14?

Ever hear of Traci Lords?

Meanwhile, it was reported in The Times (UK) Online in the article headlined Naples women go on sex strike over firework injuries (Dec. 31, 2008):

Women in Naples are staging a sex strike in an attempt to stop their menfolk from setting off dangerous New Year fireworks which cause injury and even death.

at www.timesonline.co.uk/

So, for a lonely guy, the question becomes is it better to live in Ohio where caveat emptor applies, or in Naples, Italy, where if where if you go boom, you no go boom-boom.
12.31.2008 5:05pm
einhverfr (mail) (www):
I dunno. Can we have her tried as an accomplice to statutory rape, and add felony unauthorized access to a computer charge just like Lori Drew?
12.31.2008 5:09pm
Pat C (mail):
If a man can look like an 18+ woman, I have no doubt many 14 year olds can look like an 18+ woman.

I remember Joe Pepitone (former Yankees star) related being at a Hollywood party in early 60's, hooking up with a female he would have sworn was 19, and being astounded when her mother called looking for her and revealed she was actually 13. And Pep had a lot more experience than most guys.

My own personal solution is not to have sex with other people. Although I suppose I could always be falsely accused anyway.
12.31.2008 6:33pm
methodact:
Framing? What a precise concept. Because sex need not even take place.

Even the near appearance of sin, the near occasion of sin, can draw the draconian wrath of the Brave Decoys, even when it is understood that they are adults and it is online RPG.

Because people are afraid, very afraid, because of the mythical numbers, because of constant claims by fear mongering such as by Nancy Grace with constant graphics like CNN HEADLINE PRIME: KIDS SNATCHED FROM PARENTS, NEVER SEEN AGAIN! 2,185 CHILDREN ON AVERAGE ARE REPORTED MISSING EVERYDAY!

Such alarmist graphics are up so often one wonders if it doesn't risk causing a phosphor screen burn-in.
12.31.2008 7:07pm
whit:

Women in Naples are staging a sex strike in an attempt to stop their menfolk from setting off dangerous New Year fireworks which cause injury and even death.




kind of like lysistrata, but with sparklers instead of sparta!
12.31.2008 7:24pm
methodact:
The Register weighs in.
12.31.2008 8:21pm
Glocksman:
I have no doubt many 14 year olds can look like an 18+ woman.



As a layman (heh!) my experience is that the 'apparent' age of a woman to a man is related to the man's age.

For example, when I was younger and tended bar, I carded a lot of people who actually were older than I was but not so much that I was comfortable serving them without proof of age.

As an aside, the men just produced their ID without reaction, but a couple of the late 20ish women I carded were visibly pleased when I asked for ID. :)

On the other hand, now that I'm in my early forties I find myself wondering just what my employer was thinking hiring 17 year old high school girls and then later finding out that they're really 24 year old college grads.
1.1.2009 1:08am
einhverfr (mail) (www):

I'm wondering, myself, how the heck he could possibly have been confused. 14-year-olds don't look anything like 18-year-olds! I mean, it'd be one thing if she were 17 and representing herself as 18, but 14?


Most of the time you are correct, but not always. I have met 14-year-olds who could have convinced most people they were 18....
1.1.2009 3:30pm
einhverfr (mail) (www):
A couple of thoughts:

One of the interesting dynamics of this case is in the broad outlines, which suggest more nefarious intents on the part of Roe. Consider: Roe and Doe both purchase (with credit card) gold membership on sexsearch.com Later they have consensual sexual relations. She calls the cops. He is arrested. Charges are eventually dropped.

Why were the charges dropped? Why was a 14-yr-old purchasing membership on sexsearch.com? Could it have been an extortion scheme (pay me money or I will call the police?), or some other criminal endeavor on Roe's part? Something seems really wrong here, and the prosecution probably did well to dismiss the case.

However, to what extent should sexsearch.com be liable? That is a good question. For that matter, since credit cards don't state age info, what does this mean about teenagers purchasing online porn? There are a host of age verification questions which come up and are not well addressed currently. I suppose at this point, I have more questions than answers.....
1.1.2009 3:47pm
Oren:

Could it have been an extortion scheme (pay me money or I will call the police?)

Rank speculation: arrangements to pay money had probably been made in advance and he reneged.
1.1.2009 6:25pm
lucia (mail) (www):
Oren--
Your theory is possible. But I can think of other plausible theories.

Maybe The girl's parents noticed the credit card charge. The girl got VD and ended up telling her parents so she could get treatment. The girl was caught surfing some other way.

After being caught the girl ratted him out while being confronted by angry parents.

It would be interesting to know.

Men or women hooking up with young looking people at sexsearch would be wise to check ID's. (That said, using SexSearch and acting wisely may be an oxymoron.)
1.2.2009 9:31am
einhverfr (mail) (www):
Lucia:

Your theories are possible, but one of my thoughts is that the assumption that everyone is 18+ is based on a faulty assumption.

The general approach has been that only 18+ yo people generally have access to credit cards. Therefore any Visa or MC purchase proves age. Use of parents' cards is an acceptable risk because they should be auditing their records, and the child will likely get caught if the parents are on top of things.

However, visa debit cards completely change this situation. Now anyone who has a checking account and a part-time job (or even an allowance that goes into a bank account) can make purchases previously assumed to be only possible by people 18+. This means that what was a reasonable form of age verification 10 years ago is entirely meaningless today. Interestingly there is no replacement.
1.2.2009 12:41pm
Spartacus (www):
In Texas, where the AOC is 17, unless you are 12 or under, a less-than-three-year agre difference is an affirmative defense to SR. So, a 15 YO can have sex with a 13 YO (and so can a 16 YO, if his birthday is after the 13 YO) but a 17 YO can't. And a (young) 19 YO can have sex with a 16 YO, but a 20 YO can't. Makes some sense, IMO.
1.2.2009 1:07pm
David H. Fuller (mail) (www):
A related question is whether he could have been charged with immoral communications with a minor. Immoral communications with a minor - name changes based on your jurisdiction but you get the idea - is using electronic or telephonic communications to solicit sex from a minor. Think of people who troll MySpace profiles for teens.

At the time he was on the website, he should be able to reasonably rely on the site's "over 18" statement. It is not as though he was on a site targeted at or intended for minors. Unless she said something on her SexSearch profie that was indicative of being under 18, he should be able rely on the website's disclaimer. When, on the other hand, he met her, he probably had some obligation to determine her age.

Bottom line, treat potential sex partner like someone trying to buy booze; if they look like they're under 27, check their ID.
1.2.2009 2:09pm
einhverfr (mail) (www):
David H Fuller:

A related question is whether he could have been charged with immoral communications with a minor. Immoral communications with a minor - name changes based on your jurisdiction but you get the idea - is using electronic or telephonic communications to solicit sex from a minor. Think of people who troll MySpace profiles for teens.


I don't know what the law is in Ohio but here in Washington, immoral communication with a minor must be in the commission of another crime.

For example, daring a 12-year-old to go next door and solicit sex is illegal under the law. Soliciting sexual contact that is illegal with a minor would be illegal as well, but you can't be charged for soliciting sex with a minor which is above the age of consent and where there are no other crimes involved. THis was decided after prosecutors charged a 16-yo with immoral communication with a minor for asking his 16-yo girlfriend whether she still intended to have sex with him.
1.2.2009 6:20pm
Suzy (mail):
Lots of seriously freaky guys on this site. Disturbing.
1.2.2009 11:12pm
lucia (mail) (www):
einhverfr-
I"d never consider a credit card proof that anyone is over 18+. I got one in 5th grade! (I never used it. An application was sent, and I wanted to see what would happen if I filled it out honestly. What happened is I got the credit card. )

By the time I was in college, loads freshman has credit cards. Their parents may have co-signed, but the card was in the student's name. Most of those students were at least 18. But, for all I know, 17 year olds got them too.

So, based on my experience, credit cards are not good indictors of age.

As for customers of sexsearch: There is probably nothing they can do to entirely guarantee that an almost complete stranger is above the age of consent. One of the advantages of meeting people's friends and family is you get additional information. (Like, you might learn they are in high school, college etc. Of course, even college students might have achieved the age of consent, but it's still more information than meeting someone on sexsearch.)
1.3.2009 2:11pm

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.