I've really been trying to figure out what the heck Saletan's trying to say, and it's frustrating to see him handle this topic so clumsily, given that I generally find him to be pretty insightful and this is an important issue. But apparently the third time is not the charm. Saletan suggests there are three questions:

"One is whether Polanski raped Samantha Geimer outright.... Should he have been allowed to plead to statutory rape instead? .... The third question is whether to treat sex with a 13-year-old as pedophilia. "

On the first, yes, that's a question of fact that is unresolved. On the second, his treatment of the issue is bizarre. It's not the "desire of prosecutors and the public to nail him for something." It's the way the criminal justice system works. The vast majority of cases of all types are dealt with by plea bargaining. If you want to take that on, because there are some real problems and concerns, then do so, but do it with reference and knowledge of criminal law and procedure.

Nor is plea bargaining using "rape defined by age as a proxy for rape defined by coercion." Rape defined by age is a separate crime with a separate justification. The reason for age of consent laws is the understanding that most children under that age are not capable of thinking through and understanding their actions, as Saletan acknowledged in his first column on this topic. The criminalizing of sex with a minor, and the distinctions based on the age of the perpetrator, also recognize that when the age difference is significant, those underage individuals will generally have less power and authority and will be more subject to subtle coercion and manipulation. Their consent therefore cannot be considered effective under law; the signs of "willingness" that Saletan has latched onto are not relevant precisely because they are made by a child who likely does not have the capacity to understand the full ramifications of those actions.

Sure, there may well be some 13 year olds who do understand sexualy as well as a young adult. But the law makes bright-line cut offs all the time. There are also some 13 year olds who probably could understand a contract as well as an 18 year old, but they still can't legally enter into one or be bound by it. A 13 year old may want to contract and may go ahead and sign one, but legally, that signature is ineffective and it cannot be enforced. It's the same with sex with a minor - she can act willing, but under the law, it's ineffective as true consent because the law considers children that young incapable of making that decision. There are undoubtedly intelligent arguments to be made about whether the current age of consent is set too high - but Saletan fails to make any of them. He never makes any substantive argument that by that age children do have the thought processes and emotional and psychological maturity to make the decision effectively. The only thing he has to say is that the child may have gotten her period, which doesn't go to the core issue of whether she is mentally capable of effective consent.

Then we get to his third question: "Whether to treat sex with a 13-year-old as pedophilia." This question is bizarre and Saletan has failed to show how it's relevant to anything. The law doesn't criminalize pedophilia. It criminalizes sex with minors. What is the argument for treating sex with very young children differently? Other posters have referenced the difference in treatment and recidivism rates for true pedophiles - that could be an interesting point to consider, but Saletan never does. Instead, he continues to go back to physical maturity and "willingness," without ever explaining why a girl's physical maturity is any kind of indicator of effective consent, and whether that alleged signals of "willingness" can be seen as effective when made by someone who doesn't understand their significance. Those are the legal issues at the heart of statutory rape, which after three tries, remain unanswered and in some ways, unasked.

i agree with you and, as one who teaches lots of thirteen and fourteen year olds some of whom are quite physically mature, and some who are not, i think they are kind of like year old dogs...they have the look of a big dog, but are still puppies really, and men ( or women) who want to have sex with them are taking advantage of that dichotomy.

maybe they are not attracted to children (ie prepubecscent bodies) but they are also not interested in a full fledged adult who can play on an equal footing. they want the puppy in the dogs body.

eww. what a loser roman polanski is.

Now, this is what I call an intelligent thread. Thanks for your comments, including the critical ones. I think the more thorough treatment you're looking for (though by no means complete) isn't in these blog posts. It's in the linked article: <link>. Given your analytical skills, I'd be interested to read your rebuttal of the approach outlined there.

What you say is true. So what should the penalty be for these adults? Some people have said the penalty should be the same as if the adult grabed the young teen in a park and violently raped them. What about if the perp is a women and the victim a 14 year old boy? Same penalty as a violent rape? DAs clearly don't believe this since women teachers don't even do jail time in most cases.

But sex with a 13 - 14 year old that grants consent and treating the crime as statutory rape (i.e. the same as if the victim was 17) isn't right either since a 17 year old has the emotional maturity to grant meaningful consent and a 13- 14 year doesn't.

So to me there is a third category of crime here. Sex with a young teen where there was consent, where the penalty is more than statutory rape and less than violent rape.

The penalty for sex with a young teen (think middle school years) should be the same as the penalty for sex with a younger child, precisely because the victim is still a child by all measures, except perhaps the physical. In fact, if you look at Saletan's article from two years ago, you can see the current data on this.

What the young teen says or does or feels is irrelevant, in exactly the same way that what a younger child says or does or feels is irrelevant. Ditto for whether explicit coercion was used, as it is a reasonable assumption that the power imbalance in and of itself is coercive. (Physical force may be in a different category, but that is not the coercion I am talking about here.) Neither young teen nor child is developmentally able yet to fully understand the consequences of what is going on, or to be held responsible for the actions and reactions of the adult.

An adult may be attracted to the physical body of a teen, but he/she should be expected to see that in every other way, this is still a child. It is quite reasonable to expect a "normal" adult to self-regulate, and not give in to temptation, or make a bad decision, or whatever euphemism you'd like to throw in here for "sexually assault a child." Any adult who follows through on this attraction is either a sexual deviant (pedophile, hebephile, call it what you will), or is someone who is a general purpose exploiter/rapist (equally heinous in my book).

I see no need for a third category at all, nor does current law.

So if this young teen lies to the adult (e.g. says they are 17 when they are only 13), or does any other type of behavior (e.g. the young teen is the one that makes the pass at the adult, or comes into the bed of the adult naked and asking to have sex), or any other type of behavior or conduct, the adult is charged with the same crime as if the young teen was a child?

Also when you say the current law see no need for a 3rd category this is true with regards to the charge (i.e. what crime the DA charges the perp with), but clearly NOT to the sentence given by the court as we have seen with the female teachers with the boys. So I should of been more specific with my question: should there be a lesser sentence imposed by the court associated with what I'm calling this 'third category' or should the sentence be the same as if the viction was a 5 year old?

Neither young teen nor child is developmentally able yet to fully understand the consequences of what is going on, or to be held responsible for the actions and reactions of the adult.

Notet that it all comes down to what you say above: I don't believe this statement is true for all young teens. For example, I had a friend who had a sister in law that was 13. I meet her once and she was very sexual and it was clear by how she dressed and talked. I said to my wife and my friend; She will be pregrant within months. She was and had a kid by 14 with a boy that was 15.

AGAIN, there is clearly a crime if an adult would of had sex with this 13 year old, but I feel the sentence for this adult should be less with a teen like this that isn't a 'child' with regards to sexual maturity. Note that this teen's mom had her when she was 13 also, and mom and daughter both had kids one month apart!

jazzguitarman:

So if this young teen lies to the adult (e.g. says they are 17 when they are only 13), or does any other type of behavior (e.g. the young teen is the one that makes the pass at the adult, or comes into the bed of the adult naked and asking to have sex), or any other type of behavior or conduct, the adult is charged with the same crime as if the young teen was a child?

Yes. The adult has the capacity and the responsibility to stop things from progressing. The "but she said she was 17" or "she threw her naked body at me" are never valid defenses. This is especially true when you are talking about someone who is emotionally and intellectually still a child (and by all measures but the physical, nearly all 13 year olds are developmentally still children). Furthermore, the adult should be asking why a 13 year old is acting this way, and not just be taking it at face value. It is not normal behavior for a 13 year old to be sexually aggressive towards an adult (I am talking about more than simple flirtation). Either the adult is misinterpreting, or the child has some serious issues, or both.

In a nutshell, your little head is not legally allowed to do the thinking for your big head.

jazzguitarman:

Also when you say the current law see no need for a 3rd category this is true with regards to the charge (i.e. what crime the DA charges the perp with), but clearly NOT to the sentence given by the court as we have seen with the female teachers with the boys. So I should of been more specific with my question: should there be a lesser sentence imposed by the court associated with what I'm calling this 'third category' or should the sentence be the same as if the viction was a 5 year old?

If the victim in question is 13, then the sentence should be the same as if the victim were 5, no matter the gender, or what the victim said or did. Again, a 13 year old is still developmentally a child.

jazzguitarman:

Neither young teen nor child is developmentally able yet to fully understand the consequences of what is going on, or to be held responsible for the actions and reactions of the adult.

Notet that it all comes down to what you say above: I don't believe this statement is true for all young teens. For example, I had a friend who had a sister in law that was 13. I meet her once and she was very sexual and it was clear by how she dressed and talked. I said to my wife and my friend; She will be pregrant within months. She was and had a kid by 14 with a boy that was 15.

What you personally believe about one individual is irrelevant for several reasons. The data from Saletan's article two years ago does show nearly all 13 year olds are emotionally and intellectually still children. The laws in all 50 states draw bright shiny lines all the time (as bagelwoman pointed out earlier) and 13 clearly falls well below the line drawn for consent to nearly any adult activity requiring judgment. And using a simple, easy to assess, nearly always accurate line such as age helps protect the child or young teen from being crucified in court. If you make the line variable based on an individual 13 year old's emotional development, you open the door for all sorts of "blame the victim" defense strategies for each and every young victim (which is what Polanski's victim has been going through for 30 years now.)

Also, see my remarks above about how an adult can completely prevent this situation from happening by "just saying no" in the first place.

jazzguitarman:

AGAIN, there is clearly a crime if an adult would of had sex with this 13 year old, but I feel the sentence for this adult should be less with a teen like this that isn't a 'child' with regards to sexual maturity. Note that this teen's mom had her when she was 13 also, and mom and daughter both had kids one month apart!

Again, sexual maturity is no indicator of ability to understand consequences, which is a requirement for nearly any adult activity. And again, the adult can always say no. Always.

Your story about the mom and teen both having early teen pregnancy just furthers my point about young teens not understanding consequences, by the way.

Mr. Saletan, thanks for the invitation and your wililngness to engage in a debate; particularly in light of the tone of the some of the responses. I wish I had gotten back to this sooner, but I've been a little swamped; however, I do have some thoughts about that earlier column.

I think that you make a convincing argument for taking into account the age of the perpetrator, much of which I agree with, although I think about it slightly differently. To me, it's sort of a necessary correlary to the move to make these laws gender nuetral, because now you have to consider the mental and emotional capacity of both parties, not just one. So, if you have two teens who are both under the age of consent, neither of them are considered capable of consenting. Realistically, if neither have the mental capacity for consent, neither can have the mental capacity for criminal culpability as a result of their actions either. When one of the parties is over the age of consent but just barely, I think you still have that consideration in play - that person is still less likely to have full competence with regard to sexual decisions. In addition, because in that case the age gap between the two individuals is quite small, the situation is much less likely to be inherently coercive as a situation between an older adult and child. I'm not convinced that such treatment should extend up to the age of 25; but that partially depends in my mind on the age-span. I can maybe see that between 17 or 18 and 25, it makes sense, but not so much between 13-15 and 25. I understand that this is based on studies showing that it's not really until 25 that the majority of the population is achieving pyschosocial maturity. On the other hand, we generally consider 18 to be the age of majority for most other purposes and most other crimes, and it seems that psychosocial maturity is equally relevant to other crimes as well. It's hard for me to see why we should create an exception to the general age of majority for criminal liability for sexual acts without more of a basis that is specific to that type of activity.

I think that the article does not, however, make an argument for raising the age of consent generally. If anything, the evidence of the article concering cognitive and emotional competence at various ages seems to support keeping the age of consent at the high end, as all of the numbers seem to show that at the ages of 13-15 the cognitive and emotional capacity is not mature, and that is what is necessary for true consent.

It is also part of why the physical signs of maturity and the possibility of the child participating actively or being "willing" is unconvincing to me. The point of the law is that they don't have the cognitive and emotional capacity to fully understand the significance of their choices or their actions, and so the law lays the burden and the risk on the adult instead. We require the adult to excercise his/her adult judgment, and to protect the child from his/her own relatively poor decision-making skills.

I also continue to question why you find the onset of puberty so relevant. To me, it's not clear that it has an effect on any of the essential issues. First, it doesn't appear to affect the ability of the child to consent. If anything, it appears from the studies that the capacity for decision making may decline during puberty and immediately thereafter, as they show that risk-taking peaks during adolescence. So it may be that an 11 year old who hasn't hit puberty has better decision-making skills that 13 year old who has.

Second, I don't think it's convincing that after that point, a child may be interested in sex or act in ways that evince interest, willingness, or complicitness. The whole point is that the child cannot think through those actions or fully make decisions about that interest. In addition, I don't think that there is such a bright line between pre-pubescent and post-pubescent children in this regard. Younger children who are sexually abused may also act in ways that evince willingness or at least complicitness, for a variety of reasons. My understanding is that pedophiles often try to seduce their victims, and so they do try to draw the victim into the acts by making them feel special and trying to elicit pleasure in the victims, and the victims often do experience some degree of pleasure either in the attention or in the acts, up to a point. The resulting feelings of guilt and shame at the role they believe they played are part of why it's so destructive and difficult to recover from. It's not clear to me that this dynamic isn't similar in situations with an adult and a teen; if anything, a pubescent teen would seem just as vulnerable to that type of manipulation as a young child, if not more so. Other times young children may not resist or may become complicit or active over time because the abuser is someone they love and trust. They also may attempt to initiate sexual contact with other adults.

It seems relatively clear that we would all agree that a 7 year old who acts sexually cannot be held responsible for her/his actions, and that any adult should know that. What's the basis for feeling differently about a 13 year old acting sexually with an adult, if the evidence is that s/he also does not fully understand the significance of those actions or fully make decisions at that age? If the mental decision-making capacity still hasn't fully developed, or has even declined, I don't think there's a basis for giving legal significance to those actions in terms of the victims' ability to consent.

Third, I'm not convinced it's relevant from the point of view of the mens rea of the perpetrator. As an initial point, I don't think what a child's body "signals to others" should be relevant; clearly a child's body cannot consent for her by virtue of having breasts or menstruating. I realize that's not what you're arguing, but your inclusion of this point and the use of the phrase "signals to others" does come perilously close to invoking the type of mentality.

What I think is your point in using that phrase - though correct me if I'm wrong - is that it may mark a change in the motivation of the perpretrator, which in law could go to the degree of culpability. You say that a "guy who goes after 5-year-old girls is deeply pathological. A guy who goes after a womanly body that happens to 13 years old is failing to regulate a natural attraction." But I don't see any support for that conclusion in the article, and it's not all that obvious to me. From what I have seen on this subject (which isn't a lot, so I'm not saying I'm necessarily right), the motivations of men who have sex with children can vary. It can be pedophilia, in which there is strong sexual attraction to underage bodies; it can also be more like the motivation for forcible rape of an adult - where subjugation and control are a large part of the attraction. A man who has sex with a five year old may be a pedophile or he may be an opportunistic rapist. It seems to me that the same is true with a man who has sex with a young teenager - he may just as well be motivated and attracted by the imbalance of power inherent in that relationship; he may have some peculiar sexual attraction only to very young bodies. In either case, if the motiviation is predatory, why is it different? I'm open to hearing that it is, but so far it seems to be an implicit assumption that's never really supported.

Ultimately, with no data on this point to consider, I'm left with a more or less gut feeling that the men I know and respect feel pretty disguested at the thought of having sex with a 13 year old girl, even if she's hit puberty. In the same vein, I and all of the women I know and respect feel disgusted at the thought of sex with a 13 year old boy, even if he's hit puberty. I agree it gets mushier with a 17 or 18 year old and a 25 year old, though I'm still not sure of how I think that should be handled. But I just don't see it when you get to 13-15 year olds.

That's a very good analysis. This is the part that interests me most:

bagelwoman:

it appears from the studies that the capacity for decision making may decline during puberty and immediately thereafter, as they show that risk-taking peaks during adolescence. So it may be that an 11 year old who hasn't hit puberty has better decision-making skills that 13 year old who has.

Second, I don't think it's convincing that after that point, a child may be interested in sex or act in ways that evince interest, willingness, or complicitness. The whole point is that the child cannot think through those actions or fully make decisions about that interest.

I wonder whether these two arguments converge on a paradox, i.e., that at puberty you become more likely to be interested in sex (see e.g. <link>) and -- at the same time and for related reasons -- less capable of making rational decisions about it. So you have a tradeoff between the emotional and rational components of sexual maturity, which doesn't resolve until years later (if ever).

bagelwoman , you are so wonderfully articulate.

i think you have hit the nail on the head all the way into the board.

a 13-15 year old child cannot make a decision about what courses to take, much less whether or not to embark upon a sexual relationship with anyone, and it doesn't matter how precocious her development is. of course a man who seeks out such a young woman is a predator, he wants a "grown"(ie not a prepubescent) body sans the demands of a grown woman and with the naivite of a child, he likes to be in control..which is a nice seque into the other question

and as far as a 17 year olds and a 25 year old...I see this far too often with my older students, and if it comes up, I ask them "what is wrong with your boyfriend that the 25 year old women in the world will not go out with him?you can't really think it is that you are so irresistable that he has passed over all those women just to be with you"...and although they usually get defensive, at least the seed of doubt has been planted...and i also take the opportunity to point out that the ability to buy beer doesn't really impress a grown woman, and that grown women expect a date to consist of more than a twelve pack, on demand movies, and sex on the sofa before she has to go home for her curfew...and that if this scenario seems familiar, perhaps they should ask themselves what they are doing with such a loser who cannot manage to go on a proper date with a peer. again...some loser who wants the body of a grown up, but none of the demands that a relationship between equals brings...they want to be admired for being able to buy beer, having a car, and living away from home...all of which is impressive to a teenaged girl, but get nary a second glance from a 25 year old woman most of whom have set the bar a bit higher. I don't know if this predilection for a 17 year old is a desire to be in control, laziness, or immaturity on the man's part, but, I don't think this behavior is necessarily criminal, however, it is certainly not to be congratulated, either...although some people have no shame. i chaperoned a prom as a new teacher many years ago, and a student showed up with a classmate of mine from high school (at the PROM!!!), and this wanker didn't even have the decency to be embarassed.

Thanks for taking the time to provide feedback. You do have solid logic here and I understand where you are coming form. I would still allow the use of the teens behavior to impact sentencing but the sentence would still be harsh, just not as harsh as if the victim was 5 years old.

Thank you for your eloquent response, bagelwoman. I agree with your analysis. I particularly find your argument that that young teens are less capable of good judgment than a slightly younger child to be intriguing, and in line with my personal observations as well (not that my experiences are relevant to the argument.)

The only thing I can add to this discussion is a look at why our "(m)anners, mores and law enforcement have become far less forgiving of sex crimes involving minors in the 31 years since Mr. Polanski was charged", to quote Saletan's first line in his original article. During those years, both the legal system and public opinion have come to recognize several interrelated things:

• coercive rape can involve more than just physical force
• a rape victim's clothing, behavior, or level of resistance does not always indicate consent
• it is no longer "polite" for men to make sexually aggressive comments to any woman in a public setting
  
• childhood sexual abuse not only exists but is not rare or even uncommon
• men and boys can be raped and it's also not the rarity that we once thought it was
• there are other factors besides the physical to determine whether a child has the capacity to make adult decisions.

All of these have had a dramatic role in shifting the western cultural understanding of all sex crimes, not only those involving minors. Saletan's earlier articles try to work the role of earlier menarche of girls as a reason to revisit these changes. I would make the claim that not only is earlier sexual development of girls irrelevant, it pales in comparison to factors like these. These changes over the last three decades hold the sexual aggressor more responsible for his actions, not less. Overall, this is a positive benefit for our society.

(I am reposting to correct formatting errors)

Thank you for your eloquent response, bagelwoman. I agree with your analysis. I particularly find your argument that that young teens are less capable of good judgment than a slightly younger child to be intriguing, and in line with my personal observations as well (not that my experiences are relevant to the argument.)

The only thing I can add to this discussion is a look at why our "(m)anners, mores and law enforcement have become far less forgiving of sex crimes involving minors in the 31 years since Mr. Polanski was charged", to quote Saletan's first line in his original article. During those years, both the legal system and public opinion have come to recognize several interrelated things:

* coercive rape can involve more than just physical force

* a rape victim's clothing, behavior, or level of resistance does not always indicate consent

* it is no longer "polite" for men to make sexually aggressive comments to any woman in a public setting

* childhood sexual abuse not only exists but is not rare or even uncommon

* men and boys can be raped and it's also not the rarity that we once thought it was

* there are other factors besides the physical to determine whether a child has the capacity to make adult decisions.

All of these have had a dramatic role in shifting the western cultural understanding of all sex crimes, not only those involving minors. Saletan's earlier articles try to work the role of earlier menarche of girls as a reason to revisit these changes. I would make the claim that not only is earlier sexual development of girls irrelevant, it pales in comparison to factors like these. These changes over the last three decades hold the sexual aggressor more responsible for his actions, not less. Overall, this is a positive benefit for our society.

Wow, thanks all for such a discussion, it's been thought provoking and fun.

I do agree with this: "I wonder whether these two arguments converge on a paradox, i.e., that at puberty you become more likely to be interested in sex (see e.g. <link>) and -- at the same time and for related reasons -- less capable of making rational decisions about it. So you have a tradeoff between the emotional and rational components of sexual maturity, which doesn't resolve until years later (if ever)."

I think it's very true, and it's interesting that there seems to be such a disconnect with some of our cultural perceptions. The evidence would seem to show that we should (and some do) see children of that age as particularly vulnerable. And yet, for girls I feel that there's also a pretty pervasive idea of the Lolita who is somehow powerful in her use of her newly-discovered feminine wiles. It would be really interesting in light of that disconnect to know more about the psychology and motivations of adults who do engage in relationships with individuals at that age.