Legal Commentary

In the news today is the arrest of a 38 year old man, a Rhodes Scholar and HLS grad who is a high-ranking Mass. gov't official, for allegedly masturbating and performing oral sex on a 15 year old male in a steam room at a resort in Florida. (HT: ATL) I'm less interested in the facts here and more interested in the normative legal questions posed by this conduct and conduct similar to but different to it as posed in the following scenarios.  What reactions do you have regarding what you think the law should be in a liberal democracy under the following conditions, and why?

My tentative reactions appear after the jump. For your answers, please make the assumption that homosexual conduct should be treated no differently than heterosexual conduct, unless you articulate why in a manner that the law in a liberal democracy should respect.

a) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and is unrelated to the offender

b) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and is the first cousin of the offender but never met the offender beforehand

c) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and is the first cousin of the offender, but lives in the offender's home in Mass.

d) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and is the brother of the offender living in the same residence

e) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, is the brother of the offender and lives apart from his brother in different states.

f) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and the unrelated offender is not 38, but is 16 years old, also of average maturity and intelligence,

g)   boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and the offender is 16 years old, also of average maturity and intelligence, and is the first cousin

h) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and the offender is 16 years old, also of average maturity and intelligence, and is the brother of the boy but lives in a different state.

i)  boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and the offender is 16 years old, also of average maturity and intelligence, and is the brother of the boy but lives in the same home.

j) boy is actually 24, of average maturity and intelligence for his age, invited and consented to the actions, and is the brother of the offender living in a different state.

k) boy is actually 24, of average maturity and intelligence for his age, invited and consented to the actions, and is the brother of the offender living in the same residence

l) change boy "victim" to female in the previous scenarios

m) change offender from male to female in previous scenarios

a) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and is unrelated to the offender

Markel: should be permissible if boy has rec'd a sex-ed license (described below). (Update: my answers assume that the unrelated offender is not in a position of presumptive authority over the 15 year old boy, such as a teacher or boy scout troop leader).

b) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and is the first cousin of the offender but never met the offender beforehand

Markel: should be permissible if boy has rec'd a sex-ed license (described below)

c) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and is the first cousin of the offender, but lives in the offender's home in Mass.

Markel: should be viewed skeptically because a presumption of coercion should exist regarding X's  sexual relations with a minor living in the same home as the offender.

d) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and is the brother of the offender living in the same residence

Markel: should be viewed skeptically because a presumption of coercion should exist regarding X's  sexual relations with a minor living in the same home as the offender.

e) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, is the brother of the offender and lives apart from his brother in different states

Markel: should be permissible if boy has rec'd a sex-ed license (described below)

f) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and the unrelated offender is not 38, but is 16 years old, also of average maturity and intelligence

Markel: should be permissible if both boys have rec'd a sex-ed license

g)   boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and the offender is 16 years old, also of average maturity and intelligence, and is the first cousin of the boy

Markel: should be permissible if both boys have rec'd a sex-ed license

h) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and the offender is 16 years old, also of average maturity and intelligence, and is the brother of the boy but lives in a different state.

Markel: should be permissible if both boys have rec'd a sex-ed license

i)  boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and the offender is 16 years old, also of average maturity and intelligence, and is the brother of the boy but lives in the same home.

Markel: should be viewed skeptically because a presumption of coercion should exist regarding X's  sexual relations with a minor living in the same home as X.

j) boy is actually 24, of average maturity and intelligence for his age, invited and consented to the actions, and is the brother of the offender living in a different state.

Markel: should be permissible

k) boy is actually 24, of average maturity and intelligence for his age, invited and consented to the actions, and is the brother of the 38 year old offender living in the same residence

Markel: should be permissible

l) change boy "victim" to female in the previous scenarios

Markel: My answers would be the same. However, the sex-ed license becomes even more necessary in the context of relations between heterosexuals because of additional concerns of pregnancy and genetic defects arising from incestuous relations. Thus, all minors above a certain age (e.g., above 14) having consensual sexual relations with other minors or with adults should have to take a sex-ed course whose completion gives them a license to have sexual relations and possession of the license would work as an affirmative defense against any prosecution based on sexual relations between persons not living in the same residence. This sex-ed license would cover information about safe sex, the risks of pregnancy, sexually transmitted diseases, and genetic defects arising from consanguineous relations.

m) change offender from male to female in previous scenarios

Markel: no difference in the answers