Our contradictory laws on various sexual permutations have finally led to a (state) court case that may begin unraveling the issue of crossed consent and pornography ages.
LINCOLN, Nebraska (AP) -- The lawyer for a man convicted for videotaping consensual sex with his 17-year-old girlfriend argues that the former high school teacher should not have been prosecuted under a child pornography law.I guess the reason this topic interests me so much is that it's an incredibly clear example just how specious a great deal of modern morality is. We want to have everything both ways, but eventually all such internally inconsistant constructs begin to break down.Todd Senters, 31, was convicted last year for manufacturing child pornography after his roommate found the tape in their apartment and turned it in to authorities. Senters was put on probation and required to register as a sex offender.
In briefs filed with the Nebraska Supreme Court seeking to overturn the conviction, Senters' lawyer James Martin Davis noted that state law allows people age 16 or older to have consensual sex.
So what do you think is the proper resolution (for this court, and overall)? Raise the age of consent to 18? Lower the child pornography age to 16? Keep the current system and leave enforcement to prosecutorial discretion? In the past, fear of social ostracisation served to suppress immoral behavior and there was little need for legal involvement, but since we now live in a blameless society we seem to have no choice other than criminal prosecution.
(HT: Orin Kerr.)
An alternate term for prosecutorial discretion is selective enforcement of the law. It's the short route to tyranny. We don't want that.
Not long ago, precisely this kind of case was used to pillory a Republican officeholder on the East Coast. His girlfriend was of legal age to consent to sex, but because of the anti-child-porn statutes, it was illegal for him to photograph her in the nude. I've forgotten the details.
As long as we have Magic Numbers embedded in our laws -- and in all sincerity, there doesn't appear to be an alternative -- this sort of contradiction will be possible.
I respectfully disagree with Mr. Porretto. If all the "magic numbers" are the same, there is no contradiction. Everything's illegal before, say, age 18; everything's legal after that.
Personally I'd raise the age of consent to at least 18. I think most 18-year-olds are too young to fully comprehend the idea of life-changing long-term consequences, since they haven't been alive long enough to see them in action. They also have been segregated off with other youth their own age, so they haven't been able to learn from the negative examples of people older than them. Their high school friends who are two or three years older than current HS seniors live in an entirely different universe, and they rarely have occasion to meet people older than about 20 that are not in positions of authority. The only thing "magical" about 18 is that it's the age at which the segregational impact of mandatory schooling ends and the "real-world" life experience begins for most teens.
FP & WH: I agree that "magic numbers" lead to problems, but consolidating them into one number, as WH suggests, seems like a good idea. I hadn't considered that 18 is the age when we stop segregating people by age cohort, and that's a really good point.
I didn't say that contradictions would be unavoidable, only possible -- and do please remember that, since such laws are almost always at the state level, differences among the states will give rise to further tensions and contradictions.
For example, 14 is the legal age to marry in several Southern states -- but 16 is the legal age of sexual consent in New York. So, when a Kentucky husband brings his "child bride" to New York...? Hey, what if they were New York residents in the first place, who went to Kentucky to get married?
Anyone else here remember the Mann Act?
This sort of thing creates a pressure to federalize the applicable laws -- a tendency which ought to be resisted in most circumstances. Ought it to be resisted in this one? On what grounds?
It does stretch the mind, though, doesn't it?
FP: Oh sure, and don't forget that there are federal child pornography laws that set the age at 18. That's why I note that this case is in a Nebraska state court and not a federal court. Age-crossed laws between states don't really bother me, but age-crossed laws within a state or between a state and the federal government are troubling.