When it comes to sexual relationships between minors and adults, those who say “age is just a number” are usually trying to justify the indefensible. On the other hand, it defies everything we’re learning about adolescent development to say that an 18 year-old guy and a 40-something man should always be punished equally for a consensual relationship with a 15 year-old girl. So where—and how—do we draw the right line?
The fear that children will be sexually exploited by predatory adults is not new. What’s new, as the Daily Beast reported recently, is the growing sense that the laws designed to protect minors have become too draconian, snaring lovesick teens as well as grown-up predators. Abigail Pesta interviewed Ken Thornsberry, a Michigan man sent to prison and forced to register as a sex offender for a consensual sexual relationship with a young woman that began when they were both in high school. When they first slept together, Thornsberry was an 18 year-old senior; his girlfriend Emily Lester a 14 year-old freshman. While on probation for the initial offense, he resumed his relationship with Lester, resulting in additional prison time.
Thornsberry and his mother, with Lester’s help, fought a long and ultimately successful battle to have him removed from the sex offender registry. But many more teens, almost all boys, have not been so fortunate. Pesta quotes one Michigan attorney who notes that too many prosecutors refuse to “differentiate between a 50-year-old man molesting a 14-year-old girl, and two teens having sex.” The end result is that the older teen, particularly if he or she is slightly above the age of consent while his or her partner is below, pays a legal price equivalent to that which would be exacted from the 50 year-old molester.
Today’s statutory rape laws can all be traced back to late 19th-century reforms. Colonial America, following English common law, established an age of consent at 10 or 12. A young woman’s pre-marital chastity was a commodity, and a man who deprived her of her virginity without benefit of marriage committed a property crime against her father. It wasn’t until the 1890s that the age of consent was raised, thanks to the efforts of an unlikely coalition of progressive feminist activists and religious conservatives. As they would a century later in the battle against pornography, these strange bedfellows found common ground in the desire to protect teen girls from predatory older men. Together, suffragists and morality crusaders successfully raised the age of consent to at least 16 in every state by 1900. (The conservatives insisted on and won a “marriage exemption” from prosecution for men whose wives fell below that chronological threshold.)
Though these new laws protected husbands from prosecution for having sex with their very young wives, they made no distinction between an 18 year-old and a 50 year-old when it came to punishing the older non-spousal partners of those beneath the age of consent. Prosecutorial discretion often kept older teens safe, but that discretion began to disappear with the evolution of greater concern about teen dating abuse and the advent of stricter sentencing laws in the 1980s and ‘90s. Difficult cases—like that of Ken Thornsberry and Emily Lester—became more common.
Within the past half-decade, the latest reform has been the passage of so-called “Romeo and Juliet” laws. States as diverse as California, Connecticut, and Indiana have created legislation that protects teen lovers with a small age gap from prosecution. A Texas law that just went into effect last September is typical: If the younger partner is at least 14 and the older partner not more than three years his or her senior, legal consent is still possible. Such a law wouldn’t have protected Thornsberry, however, as he was between three and four years older than Lester. As Pesta points out, even the best of these laws don’t distinguish between a man in his 40s and one just three years and a month older than his partner.
All laws that set minimum (or maximum) age requirements are, to at least some degree, arbitrary. There are smart and aware 17 year-olds whom I think should be allowed to vote. I know I’m not the only one who finds it more than a little strange that a 19 year-old soldier can be sent off to fight in Afghanistan, but not allowed to buy a celebratory beer upon his or her return. That kind of arbitrariness grates. But the alternative to arbitrary line-drawing is far more grating: a kind of intellectual or maturational means testing that would be subject to abuse and overt politicization in a hearbeat.
The consequences of not being old enough to vote or to buy alcohol can be frustrating to teens, many of whom may be personally mature enough to do both before they’ve hit the minimum age. That delayed gratification is a small price to pay for maintaining a broader (if inexact) social consensus about when the average person is ready to take on a new responsibility. But the consequences of rigidly enforcing the laws around the age of consent are, as the Thornsberry case shows, much more drastic.
It’s nonsensical to refuse to distinguish between an 18 year-old having sex with his slightly younger girlfriend and an adult man sexually exploiting a girl young enough to be his daughter. On the other hand, it’s equally dangerous to assume that abuse can’t be present in a sexual relationship between approximate chronological peers. Experience suggests that a relationship between a 14 year-old girl and her 18 year-old boyfriend is at risk for abuse. Common sense suggests that the risk of abuse is substantially higher (to the point of certainty) in a relationship between a 14 year-old of either sex and an adult two or three times his or her age.
It’s impossible to write age-of-consent laws in such a way that they take into account the maturity and experience of every individual adolescent. As with legislation about drinking and voting, society needs to set a cut-off point—even if that point seems arbitrary and unfair. Where we draw those points shifts as cultural mores shift. (When I was born in 1967, the drinking age was 18 and the voting age was 21. The reverse is true today.)
Though the law cannot be written to meet every individual situation, Romeo and Juliet laws do reflect an evolving and increasingly nuanced approach to teen sexuality. These laws are enforced by police, prosecutors, and judges, all of whom can use their own discretion when it comes to deciding whether real harm has been done. Even when the law says, as it must, that 14 is 14 and 18 is 18, those who apply it should do so with both common sense and an appreciation for the very real complexities of teen sexuality.
Hugo Schwyzer has taught history and gender studies at Pasadena City College since 1993, where he developed the college’s first courses on Men and Masculinity and Beauty and Body Image. A writer and speaker as well as a professor, Hugo lives with his wife, daughter, and six chinchillas in Los Angeles. Hugo blogs at his eponymous website and co-authored the recent autobiography of supermodel Carré Otis, Beauty, Disrupted.