Justice Ginsburg’s Past Endorsement of Lowering the Age of Consent to 12:

[UPDATE: Since posting this, I have concluded that Justice Ginsburg was likely the victim of a drafting error, and the report’s critics, including me, themselves erred in not seeing the error. More here.]

Sen. Lindsey Graham recently said that Justice Ginsburg “represents the ACLU,” “wants the age of consent to be 12,” and “believes there’s a constitutional right to prostitution.” Timothy Noah (Slate‘s Chatterbox) calls this a “smear.” Mr. Noah is far kinder to my earlier comments about the Ginsburg-age-of-consent matter, but still refers to them as “analytically faulty.” He also faults “Edward Whelan, president of the conservative Ethics and Public Policy Center” for making the same “ridiculously distorted” “pro-pederasty accusation.”

I’ve wanted to comment further on this ever since Mr. Noah’s piece was called to my attention on Monday, but it took a day and a half for me to get the relevant source from the library. Now I have the data, and can say a few words about the issue, and about whether the charge is a “smear” or a legitimate allegation.

1. Justice Ginsburg is indeed on the record as having endorsed lowering the age of consent to 12. When she was a law professor at Columbia, she, Brenda Feigen-Fasteau, former director of the ACLU’s Women’s Rights Project, and 15 law students put together a report for the U.S. Commission on Civil Rights. The report, released in 1977, gave as one of its “Recommendations” (p. 102):

18 U.S.C. §2032 — Eliminate the phrase “carnal knowledge of any female, not his wife who has not attained the age of sixteen years” and substitute a Federal, sex-neutral definition of the offense patterned after S. 1400 §1633: A person is guilty of an offense if he engages in a sexual act with another person, not his spouse, and (1) compels the other person to participate: (A) by force or (B) by threatening or placing the other person in fear that any person will imminently be subjected to death, serious bodily injury, or kidnapping; (2) has substantially impaired the other person’s power to appraise or control the conduct by administering or employing a drug or intoxicant without the knowledge or against the will of such other person, or by other means; or (3) the other person is, in fact, less than 12 years old.

The report also said (p. 97) that “Prostitution, as a consensual act between adults, is arguably within the zone of privacy protected by recent constitutional decisions” (citing the right-of-privacy cases), and urged that various federal prostitution statutes be “[r]epeal[ed].” This isn’t precisely the same as saying that “there’s a constitutional right to prostitution,” because of the qualifier “arguably,” but it’s not that far off; the report wasn’t merely impartially noting that this is one possible position, but seemingly endorsing it as the sounder position.

2. Was the quote, though, taken out of context? That, I take it, is the heart of Mr. Noah’s argument. “Yes, the language Ginsburg quotes with approval puts the age of consent at 12, which does seem awfully young. But she isn’t addressing herself to the age issue; she’s addressing herself to the gender issue. Is her praise meant to constitute an endorsement of the entire bill? Of course not. Ginsburg makes this explicit in a footnote in which she complains that even this language ‘retains use of the masculine pronoun to cover individuals of both sexes,’ which at the very least is confusing if it’s intended to outlaw statutory (and other) rape by women, too.” (Here Mr. Noah is quoting from a 1974 version of this report; he didn’t have a copy of Sex Bias in the U.S. Code.)

Yet then-existing federal law set the age of consent at 16. If the Ginsburg report had only intended to make the law sex-neutral, it could have done so without suggesting a new age of consent, or endorsing a proposed federal bill that lowered the age of consent. Yet the Ginsburg report’s proposal recommended the replacement of a sex-specific age of consent of 16 with a sex-neutral age of consent of 12. It seems to me quite fair, and not a “smear,” to fault the report for suggesting this change.

The report’s recommendation tracked the proposal in a then-recent senate bill (S. 1400 § 1633), but the authors were perfectly free to urge their own language, or to urge a mix of the bill language and their own language. In fact, as Mr. Noah himself points out, the Ginsburg report criticized S. 1400’s use of “he” to cover both men and women. If the Ginsburg report disagreed with the proposal’s lowering of the age of consent to 12, the report could easily have noted that as well, or at least could have noted that it was agnostic about the age of consent, and was recommending only the sex-neutralization aspects of the S. 1400 proposal.

Moreover, the Ginsburg report isn’t bashful about expressing itself on some matters besides sex discrimination. For instance, its criticism of prostitution bans isn’t limited to objections that the bans discriminate based on sex (either on their face or in their enforcement); the report also argues that prostitution may be substantively constitutionally protected as part of people’s sexual autonomy rights (p. 72 of the 1974 version, p. 97 of the 1977 version). The Report likewise faults the Mann Act, which “prohibits the transportation of women and girls for prostitution, debauchery, or any other immoral purpose” (emphasis mine) not just for its sex discrimination, but also because it is “too broad and vague,” and an “invasion of privacy” (p. 73 of the 1974 version, p. 98 of the 1977 version).

Mr. Noah suggests that “Ginsburg didn’t address the age-of-consent issue because it wasn’t relevant to her topic. Say it with me. She wasn’t writing about age; she was writing about gender!” Yet the report, though about gender and not about sexual autonomy rights, vagueness, or overbreadth, opined on a possible constitutional right to engage in prostitution, and the vagueness and breadth of the Mann Act. If the report’s authors found fault with the Senate bill’s proposed age of consent, they could likewise have easily said so. (Mr. Noah is right to point out that the report’s authors continued to include the spousal rape exception in their recommendation, though it’s probable that they didn’t much like that exception. That part of the recommendation, though, maintained then-existing law, so presumably the drafters didn’t want to take on a new fight there. The lowering of the age of consent, though, would have dramatically changed existing law, and it’s hard to see why they would endorse the change if they didn’t actually support the change.)

3. Mr. Noah also asks — based on my own observation that the version of S. 1400 § 1633 that I could find provided an age of 16, not 12 — “Could all this Sturm und Drang be over . . . a typo? A typo that, mysteriously, was transposed from Ginsburg’s 1974 paper to the 1977 booklet? That would be too rich.”

As it happens, I have just today found another version of S. 1400 § 1633 (excerpted in 13 Crim. Law Reporter 3011, Apr. 4, 1973), which did set the age of consent at twelve. This must be the version to which the Ginsburg report referred. Yet even if it were possible that the Ginsburg report simply had a copying error in it (I surely can’t fault Mr. Noah for not having found the version that I couldn’t find earlier myself), I don’t see how this possibility would make Sen. Graham’s and Mr. Whelan’s criticism of Justice Ginsburg into a “smear,” or even how it would “seriously undermine[ Volokh’s original] argument” (Mr. Noah’s words).

It seems to me that people are entitled to take others’ proposals at face value, at least unless there’s an obvious drafting error (to give a hypothetical example, imagine a proposal that mentions an age of consent of “sixteen days” instead of “sixteen years”). If the proposal’s author then says “Whoops, I miswrote something,” or even “Very sorry, a too-libertarian student added this, and I didn’t catch it,” we should certainly consider that explanation, and generally accept it. But unless such an explanation is forthcoming from the authors or others who know (and not just guess), it’s no “smear” to accurately summarize and criticize others’ writing.

4. Finally, I should certainly acknowledge that Sen. Graham was inexact in the tense of his statements that Justice Ginsburg “represents the ACLU,” “wants the age of consent to be 12,” and “believes there’s a constitutional right to prostitution.” Obviously, Justice Ginsburg represented the ACLU in the 1970s; she doesn’t represent them as a lawyer now. Moreover, we don’t know for sure that Justice Ginsburg, even if she endorsed every word in her report, would still recommend today that the age of consent be lowered to 12, or would still say that there’s even “arguably” a constitutional right to prostitution. Justice Ginsburg’s reputation as a judge in the 1980s and a justice since the 1990s has been of a relatively moderate liberal, not the harder-core liberal that seems to be visible in the pages of the reports. Perhaps she’s changed her views (as Mr. Noah suggests), or, again, perhaps she didn’t closely review every word that appeared in the initial report. But again it hardly seems like a “smear” to attribute to people their past views, unless they have specifically recanted their views; the more careful and precise usage is to make clear that Justice Ginsburg said she wanted this in the past, not that she wants it today, but the less careful usage is no smear.

* * *

It thus seems to me that Sen. Graham and Mr. Whelan are more sinned against than sinning here. They accurately reported or quoted the views expressed in the report that Justice Ginsburg cowrote. The accounts are indeed in context, given that the report was suggesting a change in the law, and that the report felt free to opine not just on sex discrimination but also on some substantive matters. Maybe there was an error in the report, maybe Justice Ginsburg didn’t fully check everything the report contained, or maybe her views are different now. But it seems to me unsound to characterize Sen. Graham’s statement as a “smear” or Mr. Whelan’s accurate quotes from the Ginsburg report as “ridiculously distorted.”

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