Sex with teenagers:

So I’ve been thinking — purely for academic reasons, I hasten to stress! — about statutory rape laws. There’s broad agreement that sex with people who are too young is wrong, and should be illegal, because children aren’t mature enough to consent to sex.

But there’s vast disagreement about what the proper cutoff age will be. California law prohibits pretty much all sex with under-18-year-olds. But (according to this source, seemingly created by people whose motivations may not coincide with mine, but which appears to be relatively accurate), California is in a tiny minority on this score: Only 6 states have a categorical age of consent of 18. (I set aside the special issue of sex between married couples; in most states, I believe, people can marry, at least with parental consent, before 18, and can then have sex.) Maybe the 18 cutoff is right, but it seems to me hard to say, given this, that it’s the obviously right one.

What’s more, Canada — not generally thought of as a much lewder country than the U.S. — has an age of consent of 14 (though perhaps some provinces set it higher; I’m not sure). It’s 14 in many European countries, and flat 18 (or higher) thresholds seem to be unknown in any Western nations.

Now in some states and countries, there’s a lower threshold for sex among young people: Sex with under-16-year-olds may be categorically banned, for instance, but sex with under-18-year-olds may be legal if the age difference between the parties is no more than, say, four years. But, as I said, the categorical illegal-to-have-sex-with-under-18-year-olds position — which is the one that’s most consistent with the “they lack the legal power to consent” theory — is very much a minority. And in the U.S. a flat 16 cutoff seems to be the norm. Of course, that too could be wrong, and 18 could be better the rule.

So here’s my question: What should the rule be, at least within American states, and what are the most cogent arguments that support it? I’m not asking what the constitutional rule should be; I’m also not asking, at least directly, what’s likely to prevail politically. I’m asking what the right policy approach will be.

But this policy approach should take into account real human behavior (of the teenagers, of their prospective partners, of parents, of police, of prosecutors, and so on), and not just a perfect theoretical world. So one might want to consider:

1. The risk of physical harm from sex, such as pregnancy or sexually transmitted diseases.

2. The risk that teenagers who really aren’t very mature will end up being emotionally and developmentally hurt.

3. The possibility that sex among teenagers is less likely to be manipulative or exploitative (whatever exactly that means) than sex between an older adult and a teenager — and the possibility that this is a myth, and that 16-year-old boys are as likely to (or more likely to) want to and be able to exploit 16-year-old girls as 40-year-old men would be.

4. Whatever moral claims to making their own decisions you think the teenagers would have.

5. The possible harms and benefits of having a law that is vastly underenforced, and that is enforced when the prosecutor decides the case is especially egregious (and when other circumstances, such as unwanted pregnancy or parental complaint, bring the case to the government’s attention).

6. And more.

Let’s set aside, as I mentioned, the special case of sex within marriage. Let’s also set aside sex among family members (blood or otherwise), or high school teachers having sex with students and the like. Also, note that I see “teenager” for convenience; one might certainly argue that the age of consent should be below 13, though I doubt that this will fly.

If you’re interested, please submit (to volokh at law.ucla.edu) a concise but thought-through, detailed, and proofread argument for what you think is the right position. I promise to be quick about posting these items; I’ll be able to do that because I won’t have to aggregate the results, or decide whether I endorse the argument or not. I want to post interesting and thoughtful arguments, whether I think they’re right or not. (And, yes, I will eventually post the results of the Ancient Rome question, but since I do have to aggregate and screen that, it’s been on the back burner.)

Note, though, that I don’t expect to post all or even most of the responses; please forgive me if I don’t post yours (whether because I think it’s a bit duplicative of others’, or not specific enough, or some such). If you post on this and want me to link to your post, please e-mail me both the permalink URL and the text of the post; if I use it, I’ll then include the text and also a link. If you don’t want your name to be used in my post, please say so.