Sex and Liberty:

Doug Berman (Sentencing Law & Policy) also asks, about the Wilson story (the 10-year prison term for a 17-year-old boy having oral sex with a 15-year-old girl): "Doesn't this story sound like one we might hear from some repressive foreign country, and not from a state in a country that supposedly prides itself on liberty and freedom?"

I think the matter is more complex than what Prof. Berman's "provocative question[]" suggests, in two ways.

1. Most obviously, the debate here is about conduct involving minors, and about the length of the sentence. To my knowledge, even Prof. Berman doesn't argue that if Georgia "prides itself on liberty," it must completely decriminalize sex between 17-year-olds and 15-year-olds. At the very least, a decision whether to outlaw sex between 17- and 15-year-olds is within a liberty-loving country's judgment, given that one underlying premise of liberty -- people's right to make choices -- assumes a competence to make choices that may well be lacking in 15-year-olds. And while the length of the sentence is relevant to whether the law is sensible, fair, or merciful, I'm not sure it tells us much about the state's commitment to "liberty," especially where minors are involved.

2. On the other hand, we need to acknowledge that the origins of the pre-2006 Georgia law, which had much harsher sentences for oral sex between 17-year-olds and 15-year-olds than for genital sex between 17-year-olds and 15-year-olds, stem from something far broader than just sex involving minors: To this day, a Georgia statute (§ 16-6-2) expressly outlaws "any sexual act involving the sex organs of one person and the mouth or anus of another," and punishes it with one to twenty years in prison. It was only a 1998 Georgia Supreme Court decision, Powell v. State, that decriminalized consensual oral sex (even between spouses!), by holding -- five years before Lawrence v. Texas -- that the state constitution protected such sexual autonomy.

As I understand it, the pre-2006 rules having to do with sex with minors stemmed from precisely this legal background: Consensual genital sex among adults was lawful, and when it was done with under-16-year-olds the law didn't treat it very harshly so long as the other party was 18 or younger. But consensual oral sex among adults was a crime, and there was no special solicitude for sex between two relatively young people. So while the pre-2006 rule as to oral sex with under-16-year-olds wasn't particularly contrary to liberty, it did stem from a rule that was indeed a substantial restraint on liberty -- a ban on what consenting adults, including consenting married adults, could do in their own home (and what 75% of adult Americans of all ages have in fact done, and what 60% find "very appealing" or "somewhat appealing" to receive, Michael et al., Sex in America (1994) (1992 data)).

Yet as I understand it was also a substantial restraint on liberty that had been prevalent (though, as in America, very rarely enforced) even in otherwise free countries (especially Anglophone ones) until recently. Some American states may be fairly late in decriminalizing such sex, but late by a matter of a few decades rather than centuries. The bottom line is that, despite libertarian views about liberty being indivisible, different countries have historically respected different forms of liberty -- America has been more liberal as to free speech (especially speech not related to sex) and, at least until recently, less as to sex; other countries have been the other way around; different countries have different views about economic liberties, about freedom to own the tools needed to defend one's life against criminals, and the like.

So the story, once one looks closely at it, sounds like what it is: One we might hear from a country that has had a relatively restrictive view of sexual liberty until quite recently, and still in some measure exhibits relics of that view, no matter what its views of other liberties might be.