The following article was written as advice to the Libertarian Party regarding why its members should stop advocating for the lowering of the age of consent to sexual relations.
In the mid-2010s, Americans began to notice that teenagers were increasingly being required to register as sex offenders for life; even for the supposed "crimes" of possessing nude photographs of themselves, and of having sex with someone below the age of consent but still very close in age.
Since then, so-called "Romeo and Juliet" laws, have become more popular. These are exemptions to the statutory rape or age of consent laws, which allow minors close in age, to have sex, without it being considered a crime. The statute typically specifies the age range, and establishes a minimum age to protect young children.
It's certainly a fair argument that if a 17-year-old and an 18-year-old are dating, then they should be able to have sex without anyone going to jail or registering as a sex offender. It's also a fair argument that teenagers do not belong on sex offender registries, unless they are repeat or violent offenders, or assaulted significantly younger children.
However, the facts that these arguments hold water, does not mean that every argument criticizing the current state of age of consent laws, holds water. Statutory rape laws may be rigid, but there's a reason for that; especially young children need to be protected.
In the article from
The Appeal which is linked below, the children involved were only 12 and 14 years old. Yet, because the 14-year-old faced sex offender registration, people felt sorry for him. And that's understandable. But from that point, the excuse train just kept on rolling.
http://theappeal.org/underage-teenager-faces-life-as-registered-sex-offender-for-having-sex-with-underage-girlfriend-55c377ea9729/ The fact that these children don't belong on a sex offender list with adult criminals, doesn't mean that nobody should suffer any consequences for what they did. These children's parents are treating them as "boyfriend and girlfriend" who should be free to have sex; as such, it is the
parents' fault that their children cannot keep their hands to themselves.
Think about it: The older party was a fourteen-year-old boy, whose parents evidently did not teach him how to avoid having sex with younger children who are incapable of consenting. I will not address the possibility that the girl was, in any way, to blame; not because she's a girl, nor because boys are evil, but because she was the younger party and was therefore vulnerable. The boy's parents should be fined or jailed for failing to teach their son how to respect other children's boundaries.
Twelve-year-old girls can get pregnant, as some girls begin puberty early. And there are typically other negative consequences associated with having sex at such a young age, including sexual dysfunction, sex addiction, drug addiction, dropping out of school, and difficulty staying employed.
Minors under age 16 or 17 cannot fully understand these serious negative consequences, and thus cannot make a fully informed decision which takes them into account. Taking too libertine an attitude regarding the protection of children, can have serious effects.
Romeo and Juliet exceptions and "close-in-age exemptions" have become a popular solution to the rigidity of statutory rape laws. Indiana an Connecticut passed laws like these in 2007. Texas's law passed in 2011.
When sex offender registration for juveniles became a controversial issue, the Libertarian Party was on the correct side of that issue. For older teenagers, these exceptions helped fix the problem that Libertarians and other Americans had noticed. And that is admirable, on the part of the Libertarians.
However - evidently unaware that they have already succeeded - the Libertarians have continued to advocate for the lowering of the age of consent to sex. The push to lower the age of consent has worked too well!
A 2017 U.S. Supreme Court decision caused that change. But before explaining that, it's important to ask, "Is lowering the age of consent really a good idea right now?"
Take Texas for example. If thirteen-year-olds can already legally have sex in that state, under some circumstances, then lowering the age of consent probably isn't the wisest thing to do.
There are a number of reforms which could be made to age of consent laws and statutory rape laws, which would protect children, without either limiting adults' freedom, or lowering the age of consent any further.
These include:
1) Leaving the law the way it is, and focusing on enforcing it properly (which is probably the most libertarian option);
2) Increasing the punishments for people who abuse children under 13, or 15 or 16, or both;
3) Increasing the age of consent to 16 or 17 with no exceptions; and/or
4) Increasing the age of consent while establishing a sex offender registry that's temporary and for minors only.
I would recommend that Texas enact the latter three reforms.
It's correct that we should stop treating minors like adults, when it comes to the legal consequences for their actions. That's because children don't really "choose" their actions, nor do they "decide" carefully in the same way that adults do. Children act on impulse.
But it does not logically follow, from the fact that minors shouldn't be punished as if they were adults, that we should start treating minors like adults when it comes to sex.
If you're opposed to putting minors on sex offender registries for life, then why overreact by saying "lower the age of consent"? Why not advocate for the continued registration of teens who commit sex crimes, but put them on a registry that is for minors only? Make it expire when they turn 17 or 18, or at some date that reflects the seriousness of their crime and the vulnerability of the other party involved.
Why go overboard, when it's unnecessary?
Lowering the age of consent is not something we should do hastily; not without first checking to see what it is. It is necessary to see what it is, because it keeps changing, based on time and location.
"The age of consent" is not a fixed thing, and is in constant flux.
The age of consent to sex changes every few years, in the states, because each state sets its own age, in its own statutes. The national government has an age of consent to sex as well.
Also, there is so much overlap between "age of consent laws" and "statutory rape laws" that it is difficult to distinguish one category from the other. And both categories affect the laws against human trafficking, child trafficking, and kidnapping (because the victim being young enough means a crime has occurred, and a younger victim means a harsher sentence).
But most importantly, "the age of consent" is not a
single thing. The generic age of consent to sex, the minimum age for sex considering all statutory exemptions, the generic age of consent to marriage, and the minimum age for marriage considering all statutory exemptions, are four different things. Yet each of them could be described as either an "age of consent to sex" or an age of consent to sex within the context of a relationship legalized through a marriage license.
We have to be clear about what we are talking about, when we say "age of consent". Not only because states sometimes pass exemptions which cause the general state age of consent to stop applying, in certain circumstances; but also because the age of
marriage may actually be
lower than the age of consent to
sex.
Ten states have even failed to establish
any minimum age for consent to marriage. That means the age of consent for marriage, in those states, is effectively
zero. Due to exemptions to the marriage laws, which allow judges and/or parents to assent to marriages involving minors, if you can find a couple and a judge who are crazy or stupid or perverted enough, you can marry a
baby in those ten states.
http://aquarianagrarian.blogspot.com/2020/09/child-marriage-is-legal-in-ten-states.html Maybe nobody is going to try to marry a baby, so this isn't a problem.
But on the other hand, we know from recent events that some child molesters know people high-up in government. We can't be sure that nobody will ever try to get away with such a thing. If that happens, there should be a limitation in place, to say "this child is incapable of giving fully informed consent to this marriage contract".
If our laws do not reflect our values, such as the need to protect vulnerable children who cannot protect themselves, then our civil society is worthless, because it cannot establish basic norms or standards.
Lowering the age of consent was a great position to take... ten or twenty years ago. It would be a great position to take, if "the age of consent" were actually 18 years old, as most Americans assume it is. But it simply isn't true that there is an 18-year age of consent; not nationally anyway. The age of consent is 18, only in a few states.
As of early 2021, the age of consent was 18 in 12 states, 17 in 7 states, and 16 in 31 states. As of one or two years ago, the most common age of consent was 17, but now it is 16.
The fact that more states are reducing the age of consent, than increasing it, should not necessarily be taken as evidence that it is the right thing to do. Keep in mind that, in the figures provided above, state statutes regarding exceptions were not taken into account. Each state's laws regarding exceptions to statutory rape laws, vary widely.
That is why it is difficult to even say "the age of consent in this particular state is this particular age"; there are so many exceptions that it is often hard to keep track of. Especially when state laws on the matter change so often.
It was not due to the Libertarian Party's legislative efforts that Romeo and Juliet laws were passed. Nor should we blame the Libertarians for failing to notice that the advocates of reforming statutory rape laws, succeeded.
But we cannot fail to hold those Libertarians accountable who continue to support lowering ages of consent. Some Libertarians - though not all - continue to remain ignorant about the current state of these laws.
If Libertarians are so interested in the topic, then they should notice what has changed. They should distinguish what the advocates of lowering the age of consent, did right, from what they did wrong. Then Libertarians should start proposing solutions to the parts they got wrong.
If the Libertarians do not propose any such solutions, then they should not expect to be part of a coalition that enforces those solutions.
Curiously, what caused the big change in statutory rape laws, that the Libertarians missed, was not an avalanche of states rushing to pass Romeo and Juliet exceptions.
Instead, it was the decision in the 2017 U.S. Supreme Court case Esquivel-Quintana v. Sessions. Additionally, the subsequent lowering of the age of consent in at least twenty states, to sixteen, which appears to have been done in order to accommodate and apply the Esquivel ruling.
Attorney General Jeff Sessions lost the government's case against an undocumented immigrant from Mexico who had sex with a 17-year-old female, at a time when it was illegal for him to do so at age 21, according to a California statute. That California statute was ignored, and effectively invalidated, in the 2017 case.
In June 2017, the Huffington Post reported that, as a result of that Supreme Court decision, twenty states would have to see their ages of consent reduced to sixteen. That's because the immigrant's attorneys appealed to the fact that the generic federal definition of sexual abuse of a minor (which is articulated in 18 U.S. Code Section 2243) specifically references an age of consent to sex, and not to the age of "legal competence". The age of consent to sex is the federal age of sixteen. The age of legal competence therein referred, is eighteen.
The reason why twenty states' ages of consent became 16, rather than 18, as a result of that decision, is because there is no national or "federal" age of consent to sex which is set at 18 years old.
There has never been such a law. The states currently set their ages of consent between 16 and 18. They do so because they can, and because the federal government hasn't ruled their age of consent statutes unconstitutional yet. There is no national law, currently on the books, which states that states must set their ages of consent between 16 and 18, nor between any other set of ages.
States could lower their ages at any time, and they can and do pass exceptions. Those exemptions often legalize sex involving people well below 18, and that is why children below 16 are put at risk, whether or not a state were to claim "states' rights" and lower its general age of consent before exemptions to below 16.
Huffington Post contributor James R. Marsh explains why 18 U.S. Code Section 2243 is at fault for the outcome of this decision: Esquivel-Quintana's attorneys cited this law to justify refraining from deeming the actions of thee accused as sexual abuse of a minor.
http://en.wikipedia.org/wiki/Esquivel-Quintana_v._Sessions In 18 U.S. Code Section 2243, titled "Sexual abuse of a minor or ward", the law provides that whomever is under U.S. jurisdiction, and "knowingly engages in a sexual act with another person who... has attained the age of 12 years but has not attained the age of 16 years", can be punished.
This law is referred to as the "generic federal definition" of sexual abuse of a minor.
It could be argued that this means there is a national age of consent of 16 years old. [However, taking such a stance, would probably require you to argue that state laws establishing a 17-year or 18-year age of consent, are unconstitutional or otherwise invalid.]
It gets worse, though.
According to the defenses listed in 18 U.S. Code Section 2243, whomever has sex with someone under 16, but over twelve, might not be guilty of a crime, if they are either married to that person, or they reasonably believed that the person was over 16.
What does this mean, in effect? If a child aged twelve through fifteen, obtains a fake identification card (a "fake I.D."), and shows it to an adult, then that adult could rape them, and use the fact that they had an I.D. saying they were over 16, to argue that they "reasonably believed that the other person had attained 16 years of age".
So the "national age of consent" is 16, not 18; and if you have a fake I.D., it's only twelve. Apparently, no criminal consequences can be visited upon someone who rapes a 12- to 15-year-old child who shows them a fake I.D., as long as the rapist is simply aware of the law and its acceptable legal defenses, and doesn't commit any additional crimes in the process.
It is customary to have the defenses for breaking the law, listed right beneath the law itself. But it is disturbing to think that anyone who looks up this "national age of consent" law, can find what basically amount to instructions on how to use a loophole in the law, right below this very necessary law which is supposed to exist in order to protect children.
Knowing all of this, it's hard to avoid feeling like the government is instructing child traffickers how to have sex with, an abduct children, legally.
And in the wake of the Jeffrey Epstein / Alexander Acosta scandal, we should also think about what it means that attorneys, judges, and legislators see that piece of legislation a lot more often than the average American does (and especially more often than the average child who is put in danger by its flaws).
Do you understand, now, why lowering the age of consent is such a bad idea?
In case you don't, then yes, it still gets worse! Read on!
The fact that this national 16-year age of consent law exists at the national level, means that anyone who traffics a child across state lines, is under federal jurisdiction. That means the state cannot prosecute the kidnapper (which is bad), but the federal government can (which is good).
However, the federal government might not prosecute the kidnapper (which is bad)! It all depends on the age of the victim and the perpetrator.
Suppose that you live in a state in which the age of consent is 17, and your child is 16 years old, and they've been abducted. If the kidnapper stays within state lines, then state courts can prosecute him, and they will prosecute him under your state's 17-year age of consent law. Naturally, you would prefer that your kidnapper stay close-by, and not leave state lines, because that would make recovering your child very difficult.
But that's where the federal government comes in. If your child's kidnapper leaves the state with your child, now he's under federal jurisdiction, because he's using the national highway system. And, according to the federal law on "Sexual abuse of a minor", a person who transports a child across state lines, whom is between 12 and 15, and is less than four years younger than the other person involved, has not committed sexual abuse of a minor, and cannot be found guilty of that in federal courts.
Read closely: "Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the head of any Federal department or agency, knowingly engages in a sexual act with another person who- (1) has attained the age of 12 years but has not attained the age of 16 years; and (2) is at least four years younger than the person so engaging; or attempts to do so, shall be fined under this title, imprisoned not more than 15 years, or both."
The appearance of the word "and", before "(2)", means that both (1) and (2) must be fulfilled, rather than just one or the other. This means that, for a crime to have been committed - simply due to the victim's age, rather than other criminal factors - the victim must be both: 1) at least 12, but not yet 16; and at least four years younger than the kidnapper or rapist.
In effect, this means that a kidnapper can abduct a child, and take them across state lines for purposes of sex, as long as the child is over 12, and the kidnapper is no more than four years older than the victim. A 16-year-old can kidnap children over 12 and take them across state lines, a 17-year-old can kidnap children over 13, an 18-year-old can kidnap children over 14, and a 19-year-old can kidnap children aged 15. And 16-year-olds can be taken across state lines by anybody, and it's not kidnapping. Unless, that is, other crimes are committed in the process, which obviously indicate that the younger party never consented in the first place (such as evidence of assault).
Not many Americans, and probably few potential kidnappers, know about these facts. But whether a lot of people know about it, does not change the fact of what we have done, by allowing the Supreme Court to ignore and invalidate the age of consent laws of twenty states.
We have created a federal incentive program, for kidnappers, to take our children outside state borders.
We have effectively created this incentive to take kids out of the state, by eliminating the disincentive to stay in the state after abducting the child. That disincentive, which previously existed, was the threat of punishment, by the states, according to their own age of consent and statutory rape laws. In 2017, those laws were invalidated in 20 states, including several of the most populous states in the nation.
This should demonstrate why it's important to read the law, and to know how to read the law. It could mean the difference between having your child in your arms and never seeing the child again. It could mean the difference between being certain that your child's rape is prosecutable, and having no clue on the matter.
Age of consent to sex, statutory rape, and intrastate kidnapping, certainly belong under the jurisdiction of the states or the people. Just as interstate kidnapping is rightfully a national or federal issue. But that doesn't mean that the states and the federal government should not coordinate when deciding what those laws should be.
The wide variation in states' ages of consent - coupled with the many exceptions to those laws - are a complete mess. We would probably see less interstate child trafficking, if kidnappers couldn't simply relocate to a new state, where the age of consent is lower, in order to get away with more legal sex with minors.
That is why I support a constitutional amendment which would establish a minimum age of consent to sex, marriage, contract, and work, which would be uniform across all states. In my opinion, the age of consent should be set at 17, with a two-year "close-in-age exception" that allows minors aged 15 or older to have sex, without being labeled sex offenders, as long as the other party is below 17.
A constitutional amendment would avoid objections associated with "states' rights", by making sure to get at least three-fourths of the states' approval, before making such a permanent change to the U.S. Constitution. There may not be constitutional precedent supporting the authority for a national age of consent, but the existence of interstate child trafficking necessitates such laws, and an amendment would delegate that authority properly.
To include a provision regarding age of contract, or age of legal competence, would also be an important achievement. Without such a law, children could work and marry and have sex and vote in one state, while being able to do none of these things the next state over (which is sometimes as close as just over a bridge). Perhaps some minors could even be legally transported to other states for the purposes of legal prostitution (just as they can legally be transported now, by their parents, to get piercings and tattoos which are illegal for them to get in their home states).
States' rights have their place, but to continue to have zero consistency whatsoever - concerning whom is allowed to vote, and start a family, and file lawsuits - would constitute a failure to set up the most basic standards necessary for a civil society.
Emotional maturity, intellectual maturity, reproductive maturity, and economic independence, are
not sufficient grounds for either legal sex, marriage, or voting. Maturity matters, but a child who is subjected to sex, must always be presumed to be the vulnerable party, unless and until the other person involved, proves otherwise.
If economic independence - and emotional, intellectual, and reproductive maturity - were considered to be all a child needs to work, marry, have sex, and enter into contracts, then an adult could pay any child who has begun puberty, for sex, treat them as a legal prostitute, and use that to cite their economic independence. An adult could single-out a child, tell them that they're mature for their age, and use that to justify trying to date them, and starting a sexual relationship with them.
I wrote about this topic previously, in direct rebuttal of an article written by former Libertarian Party presidential candidate Arvin Vohra, in my January 2018 article "Remove Arvin Vohra from the Libertarian Party". That article can be read at the following link:
http://aquarianagrarian.blogspot.com/2018/01/remove-arvin-vohra-from-libertarian.html
Some Americans have heard rumors about there being a 16-year or a 12-year national age of consent (and I hope that this article has helped clarify that question). But few Americans know that ten states currently have no legal barrier to baby marriage.
Some people do know some of these facts, though; for example, everyone who read the Huffington Post article about Esquivel-Quintana v. Sessions and 18 U.S. Code Section 2243.
The fact that some people are aware of this problem, is at least part of the reason why Americans are looking at Libertarians like they're crazy - and, as Mark Whitney put it, "the party of pedophilia" - for continuing to advocate for lowering "the" age of consent.
We already did it!
Now that we're done celebrating this pyrrhic victory, it's time to rein things back in. It might even be time to raise the age of consent (or at least raise it to 17 everywhere, and get rid of the exceptions that pertain to minors under 15 or 16).
If we, as Americans, neglect to establish nationwide minimum ages for contract, work, marriage, and sex, then it will be very difficult for many people to accept the full legalization of sex work. Not considering the way state age of consent laws have been weakened over the past five years.
I believe that the
Libertarian Party – and the broader libertarian movement, and the movement
to legalize sex work for consenting adults – will never succeed, as long as their proponents neglect to check whether states are establishing
adequate and consistent minimum ages for participation in sex work.
If they do succeed, then it will be because their proponents failed to update themselves on the changing sex laws.
Libertarians are teaching children who come to their conventions that there is a safe way to do everything. That is not true; there is not a safe way for a child to have sex, nor to use dangerous drugs.
Many people in the party think it is funny to boo laws against five-year-olds buying heroin. They usually argue that "that doesn't mean the kid is going to use it", or "it's probably for someone else", or even simply "no victim, no crime". But this is simply going into denial; it is letting our guards down through trying to rationalize-away real threats to our children. This will only end in desensitization to pedophile grooming, and tragedy.
It's not OK to allow drug dealers around our children, and it's not OK to allow children to drink alcohol at a young age. We cannot allow adults to get children hooked on drugs, simply because there's nothing sexual about it, or whatever other bizarre rationalization we might have for turning a blind eye. If you don't put your foot down at some point, some child molester is going to be able to get away with putting his finger up your child's asshole in front of you, and then saying "There's nothing sexual about this, because the anus is for digestion, not sex, according to nature." And you can probably predict which political parties are going to vouch for the people who will make that argument.
The Libertarian Party must establish itself as "the party of consent", and understand that children are not supposed to be completely free, because they cannot make certain decisions on their own. If the L.P. cannot do that, American society will end up prioritizing children's freedom over children's safety.
The
party needs to distance itself from Nathan Larson, Arvin Vohra, and
Walter Block; and defend Mary Ruwart and Roderick Long from
accusations of defending pedophilia.
I wrote about this topic
previously, in my March 2020 pamphlet “Understanding Libertarian
Pedophilia Scandals”, which can be viewed and downloaded at the
following link:
http://aquarianagrarian.blogspot.com/2021/01/understanding-libertarian-pedophilia.html
The age of consent to contract is one of the cornerstones of civil society. From that principle, proceed the notions that minors under a certain age shouldn't be free to work, marry, or have sex, without the guidance of adults and also the guidance of the law.
That is why failing to establish consistent standards regarding the ages of consent to sex, marriage, work, and other things, would be a serious misstep.
I would like to help the members of the Libertarian Party, and other people who oppose punishing minors with serious adult consequences, avoid making that misstep.
This problem may seem complicated, but it is simpler than it looks. All it takes it having some basic standards, a little bit of political coordination, and the sustained determination it will take to pass a constitutional amendment (which typically takes between six months and seven years).
That time will be worth it, no matter how long it takes. Our children deserve it.
To fail to protect children, will also endanger the freedom of adults. Because until children are adequately protected, the sexual freedoms of adults will be sacrificed in the name of protecting children, and children will be treated like adults in the name of freedom and order.
Look around you; at the law, at parents, at the schools, and in our culture and in the media. It has already begun.
Originally Written on March 8th, 2021
Edited and Expanded, and Originally Published,
on March 10th, 2021
