Age of Consent:

Many states have lower ages of consent for sex among minors than for sex between adults and minors. Thus, two 16-year-olds having sex may be legal, but not a 30-year-old having sex with a 16-year-old.

I share the intuition behind this distinction, but I wonder whether my intuition is right. For instance, I would think that quite a few 16-year-old girls who are interested in sex would rather be involved with 30-year-old men than with other 16-year-olds; the 30-year-olds are more likely to know what they're doing both sexually and romantically, plus are more likely to be much more emotionally mature as well as interesting to talk to. What's more, to the extent that women are said to be attracted in some measure to success (not just financial but professional and social), the 30-year-old may be much more attractive to them. Plus if a serious relationship ensues, the 30-year-old might be a better influence on the 16-year-old than another 16-year-old would be.

Ah, one might say, but perhaps the 30-year-olds are more likely to be sexually exploitive of the 16-year-olds, whatever "sexually exploitive" might mean. But why should we be so confident of that? Sixteen-year-old boys can be as interested as 30-year-olds in sexual conquests for the sake of sexual conquest, and can be as willing and able to lie and manipulate to get what they want. I suppose they might be less good at the lying and manipulating, for the same reason that they can be less good at some of the things the 16-year-old girl may want (being courted in a romantically appealing way). But I doubt that they're entirely unable to lie and manipulate -- and they may feel even more pressure to do so, because they may be more hormonally charged, sexually desperate, and desperate to prove their adulthood and manliness by getting sex or by racking up partners.

Of course, 16-year-olds are more likely to be thrown together with other 16-year-olds in social contexts, and are thus more likely to "naturally" become interested in each other. Perhaps then the rationale is simply that you can't stop such sex without prosecuting millions of people, while you can stop adult-adolescent sex, which might be more likely to be more common. But the effect of the law is still to channel some 16-year-old girls away from sex with adults and into sex with other teenagers. That would make sense, I think, only if we think that sex with teenagers is better for them than sex with adults would be. But why is that so?

Query, also, whether the analysis should be different when we get to 14-year-olds or 15-year-olds, but please set aside for purposes of the analysis flat rules that categorically forbid sex between anyone and someone under a certain age. Those rules are easy enough to explain, as being based on concern about (say) a 15-year-old not being mature enough to make a decision that can be so emotionally and physically dangerous. The tougher question is why the 15-year-old should be allowed to make such a decision when the partner is another 15-year-old as opposed to a 25-year-old. (Note that I'm talking about sex between adult men and adolescent girls; one can ask similar questions with the sexes reversed, and as to gay and lesbian sex as well. But my sense is that the bulk of the sexual conduct that is actually punished or deterred by these laws is between adult men and adolescent girls, so I thought I'd focus on that.)

Now perhaps my skepticism here is unjustified. I wouldn't mind being persuaded that it is unjustified, since as I said I find the distinction between "Romeo and Juliet" sex (the laws allowing sex between minors who are close together in age are often called "Romeo and Juliet" laws) and adult/teenager sex appealing -- though look what happened to Romeo and Juliet. I just wonder whether we can be confident enough in this distinction.

And, just to stave off the speculation, I've never dated a minor while I've been an adult, and have never wanted to date one. Among other things, I've generally found adult women considerably more attractive and interesting than underage ones (much as I suspect that some many adolescent girls would find adult men considerably more attractive and interesting than underage ones).

The Academic Credo

(or at least An Academic Credo): A commenter on my age of consent post writes,

This is a perfect example of why people claim professors are out of touch with reality. When someone can accurately but facilely summarize your suggestion with "he wants to change the law so that adults should be allowed to have sex with high school sophomores," you lose. No further inquiry, no appeal, no nothing: you're automatically some lunatic that thinks something approaching pedophilia is OK.

Some curious thoughts are best kept to one's self....

I've heard this reaction before, not just as to discussions of the age of consent but also as to other matters. Other commenters seem to say something similar, some even calling — with no substantive reasons — for me to take down the post, with no real explanation). And it strikes me as worth discussing this attitude in more detail, because it does reflect something important about the academic approach, an approach that, contrary to the commenter's view, strikes me as exactly right.

Here's what I see as the academic credo, or at least the right sort of academic credo: It is better to know than to believe. It is better to understand why rather than just accept the what. Much of the time (though certainly not all the time), the things that we think are obviously and clearly "reality" are actually not. Even when our intuitions are right, we gain much from understanding why they are right. So curious thoughts about why our assumptions are right — and whether they are right — are indeed precisely what people (especially professors) should be thinking and expressing.

Let's use this very post as an illustration.

1. To begin with, let's talk briefly about the "reality" with which I'm supposedly out of touch. Recall that my post chiefly discussed 16-year-olds having sex with 30-year-olds, which many states prohibit. But the reality is that over half the states do not prohibit this behavior, but have a general age of consent of 16 (that is to say, the age of consent for sex with adults, rather than just with fellow children, setting aside the special case of sex with adults who are in a special position of authority, such as family members or teachers). In most of Western Europe, the general age of consent is likewise 16 or less. There'd be no need to "change the law" to allow this in most places; one would need to change the law to forbid it.

Now maybe this judgment of most of the U.S. and of Europe is wrong, and that they are themselves "out of touch with reality," whatever exactly that means. I certainly don't want to argue that the majority view is always right. But it does suggest that we can't lightly assume that accepting a general age of consent of 16, under which sex between 16-year-olds and 30-year-olds (or 60-year-olds) is legal, is "luna[cy]."

But wait, there's more: In France, the general age of consent is 15. In Austria, Germany, and Italy it's, generally speaking, 14. In Spain it's 13. In several U.S. states, it was 14 until a decade or two ago; in Canada it is 14, though a recent law changes it to 16 as of May 1, 2008. Again, these decisions may well be wrong or even "creepy" (a term three other commenters used to discuss my post, which chiefly focused on 16-year-olds). Yet when nearly 200 million members of our Western culture live in countries where the age of consent is 14 or less, this should lead us to think that there's an important discussion to be had here, and that the answer is at least not open and shut.

More broadly, by the way, this is indeed a familiar practice of professors: To point out that our intuitive assumptions — however firmly held — are actually not shared by many other people, including in places that aren't very different from our own, and to suggest that this might shake our faith in those assumptions (though again of course it's not proof that the assumptions are false). And I think it's a sound practice, one that should be taken seriously as an advantage to thinking through our beliefs rather than just casually accepting them.

2. More broadly, professors — and many non-professors — know well how many deeply held assumptions about "reality," assumptions that didn't seem to require "further inquiry," proved to be quite wrong. That's most obvious with regard to the physical and life sciences, but it's also true about economics and morality.

Focusing on morality, consider how deeply attitudes have changed over the centuries about such fundamental moral questions as slavery, the role of women, premarital sex, homosexuality, and even the very issue involved here, which is to say the age of consent. Recall that in England the age of consent until the late 1800s was set at 12.

Again, it may well be that modern law is right about the age of consent (which I stress again, is mostly set at 16 both in the U.S. and in Western countries more broadly, not at 18) and the views of the past were wrong. I'm pretty sure that they were wrong as to age 12, and 16 might well be a sensible dividing line. Yet what do you think are the chances that, however wrong we now recognize many past moral views were, our deeply held intuitive moral assumptions today are all completely right? Shouldn't that plant at least a seed of self-doubt? The "professors" who "are out of touch with reality" believe (at least when they're at their best) that public questioning in such matters is better than undefended confidence, or silence.

3. Finally, let's say that the commenter's substantive intuition — that sex between adults and high school sophomores (the 16-year-olds that I discussed in my post) — is right, and the dominant view of American and Western law is mistaken. Surely it's still better to publicly discuss what the reasons for this might be, and why they are right.

(a) Most obviously, it's necessary to persuade the "lunatic[s]" who support the legality of "something approaching pedophilia" yet somehow managed to make their views made into law in most American states and most European countries. I take it that just calling them lunatics and urging them to keep their views to themselves won't persuade them, right? It would help to have a detailed explanation.

(b) It should also be helpful to reassure thoughtful and responsible backers of higher ages of consent. If someone is being sent to prison based on a law you advocate, I'd think you'd want to have some confidence that you're right. And it's hard to have that confidence in any thoughtful way, it seems to me, if you've just shushed those who take a contrary view, as opposed to engaging it (even welcoming its airing) and explaining why it's mistaken.

(c) It's also necessary to deal with all the important details related to implementing the law. Say that allowing adults to have sex with 16-year-olds is indeed wrong. Should the age of consent then be 18? Or 17? Or 17 1/2? If there is to be an exception for sex between people who are close in age, how much should the allowed difference be? If an act is criminal, how much resources should we devote to prosecuting it? How willing should prosecutors be to accept pleas to reduced charges? What should the prison sentences and other punishments be for committing the act? It's impossible to sensibly answer these questions without thinking hard about exactly why we're setting the age of consent at a particular point.

So, my bottom line: Asking these questions, and questioning our intuitions, is more in touch with reality — including the reality that our intuitions are often (though of course not always) wrong — than just taking our assumptions for granted. And when we professors ask for logical arguments even in support of that which many people see as obvious, it seems to me that we are doing exactly what our jobs call for.

UPDATE: I originally said that the age of consent in Canada was 14 until recently; as the revised text, makes it clear, it's actually 14 for a few more days. Thanks to Canadian prosecutor Andrew Barg for setting me straight on this -- always good to get even a little closer to "reality."