One more thought, triggered by a reader who mentioned an incident where the sex seemed clearly exploitative. Imagine that a mentally competent 40-year-old has sex with a mentally retarded 19-year-old. Exploitive or not? After you answer this, please click below for the follow-up questions:
(Please click here.)(1) When you were answering the question, did you envision a 40-year-old man and a 19-year-old woman? (If your answer is yes, that may make perfect sense — it’s quite likely that most such situations do involve this sort of gender breakground. But thinking just of those situations may be somewhat limiting.)
(2) What would your answer be if it was a 40-year-old competent woman and a 19-year-old mentally retarded man? Not that likely, but not ridiculously unlikely. (Assume that the 40-year-old woman is incapable of conceiving, for instance because she’s been sterilized, so we don’t have the concern about fatherhood being unwittingly foisted on someone who isn’t ready for it.)
(3) What would your answer be if both were men?
(4) What would your answer be if both were women?
(5) If you think that the legal system should consider whether the relationship is exploitative or not — and this could be either as part of a formal legal rule that only bans exploitative sex with the mentally retarded, or as part of the prosecutor’s discretion in deciding whether to charge someone even under a categorical prohibition on sex with the metally retarded — should the legal system consider the genders of the people involved?
I should mention that at least in some states, laws banning sex with children do turn in some measure on the child’s gender. The Supreme Court has indeed upheld these laws against Equal Protection Clause challenge, mostly pointing to the fact that women are at more risk from sex because of the danger of pregnancy (though there’s apparently also a greater danger of at least some sexually transmitted diseases going from men to women than vice versa). But my question isn’t whether these distinctions are constitutional — it’s whether they should be embodied in the law, and, if so, to what extent.
(Note that in these posts I use “gender” as a synonym for “sex.” I usually prefer to use “sex” to refer to a person’s sex, but sometimes when “sex” is used nearby to refer to conduct, it seems less confusing to use “gender” to refer to whether the person is male or female. I’m aware of various distinctions that people have suggested between “gender” and “sex,” but I don’t want to get into them here; in these posts, the two are synonymous.)(hide)
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