Legal Commentary

Should twins be able to have sex with each other? Get married? What if they?re gay? Or seventeen years old? Last week, I raised some questions like these about the proper scope of criminal law as it relates to questions of sex and marriage between and with minors -- in contexts involving homosexuality, polyamory and incest too.

It seems I have some heterodox views about these subjects, since in principle I?m not opposed to say, gay triplets having sex (or marrying!) each other, provided certain conditions are satisfied. See this story, btw, for an interesting story about twins wanting to marry each other.

In the course of those posts, I referred to the notion of a sex-ed license, which, along with some other conditions, would provide a safe harbor from prosecution for relations with minors that we might or currently prohibit under pain of criminal sanction. I describe it a bit more below.

I described the sex-ed license quite quickly: minors above a certain age (e.g., above 14, 15, or 16?) wishing to have consensual sexual relations with other minors above that age 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, in conjunction with other conditions, work as an affirmative defense against prosecutions for statutory rape. This sex-ed license would cover information about safe sex, the risks of pregnancy, sexually transmitted diseases, and genetic defects arising from consanguineous relations.

 The three other conditions that would apply (or that could be made to apply) include

a) a ban on sex between asymmetrical dependents when one is a minor;

b) a ban on such relations when the minor and the other person(s)

i) live in the same residence or

ii) exist in a relationship of unequal authority, e.g., one person occupies a supervisorial or custodial role to the other;

I also like the idea of requiring the persons involved to register a joint consent form indicating intent to have sexual relations with a designated public official before the activity happens. Obviously this implicates privacy concerns, but this wouldn?t apply to persons over the age of majority, so some state paternalism seems cautiously warranted if it?s going to increase opportunities for mature individuals to have sex. (Does this count as libertarian paternalism???)

The notion about the sex ed license raised a few questions in the comments to these posts, so I want to say a bit more about the sex-ed license and the similarities and differences I?d like to draw between teen sex and teen driving.

One of my students asked with respect to the sex-ed license, what harm is it intended to prevent and how will it do so. Since the scenarios I devised included incest among other things, the idea of the sex-ed license was to ensure that minors had studied a curriculum that would cover all relevant public health and psychological issues that might arise, including but not limited to matters of disease, pregnancy, and genetic risks. Here the analogy to driver education seems relevant. Where I grew up, we had to take an approved class (not necessarily gov?t subsidized) and pass an exam in order to get our driver?s license. I?m imagining the sex-ed model would be the same, underwritten by the notion that sex, like driving, is a risky activity for those involved and those around (and not yet around), and the state has an interest in promoting safe norms and practices involving those activities.

That same student of mine noted that ?anecdotally the reason people do not engage in safe sex is not ignorance of the risks involved but rather a hormone/alcohol fueled cost benefit analysis which has unsurprisingly biased results.? This seems to conclude too quickly. First, the same could be said about teens engaging in unsafe driving, but it?s not a reason to let anyone on the road without a license or qualification. Moreover, the threat of prosecution for statutory rape might chill the hormonal impulses for many. So we can?t assume such a licensing scheme would have no effect on most people just because it might have even less effect on others.

Another student asked: how would you design the sexual intelligence test? Would it screen for maturity and mental stability factors? Would the results of the test be confidential? The short answer is the test results would be as confidential as they are in the context of driving exams. The test is a pre-requisite for teen sex but it is not designed to serve as a sexual intelligence test or a screen for calibrating maturity or mental stability factors. On my view, no one besides the test taker would be  told what score he or she got and the score would be pass or fail. And one could retake the test upon completion of the course materials. (The course could also be a self-study online course with perhaps one or two private meetings with a sex-ed teacher/tutor/counselor for any questions lingering.)

One student asked how this would affect people with different maturities or intelligence levels. For minors unable to pass the test, they would not be guaranteed a safe harbor from prosecution for statutory rape. Perhaps some accommodation could be made for some who don?t pass the test because of mental retardation, but accommodating all teens here presents the same kind of challenge as with driving. We don?t let blind people drive for instance because it?s too risky. If you accept the premise that sex with or between minors is a risky activity, then invariably some people?s limitations will have to preclude them from this risk. But it doesn?t mean we can't find any solutions. See, e.g., here (presenting research on sex ed for students with disabilities).  

Relatedly, some comments raised the concern that emotional intelligence is a key factor for crediting the capacity for teens to meaningfully consent and that some teens have it and some don?t -- indeed, some noted that adults (ahem!) lack emotional intelligence too. No doubt, emotional intelligence is a factor in sex with and between minors. A test may have limits on sussing out more than knowledge about health facts, but I suspect some questions can be used to assess these some of these other factors too. There are, after all, industries and armies of experts devoted to the design of psychological tests. If hypothetical scenarios were given and teens picked an answer too close to the shade of danger, then that would conceivably be a basis for failing the test-taker.

One student asked whether a sex-ed license would entail permission to work in the pornography business. Fascinating and difficult question in light of the approach here. Perhaps the use of commerce should be a context which creates a presumption of coercion, and so it should either be banned or rebuttable. Looking at the teen driving context, we might think the answer should be yes, but insist on pre-registration consent forms here.  After all, we allow teens to drive for money (pizza delivery workers). I'm actually not sure about this, but I think my hesitation needs explanation.

Another person asked about parental notification or vetoes.  As a general matter, I don't think we should require parental consent to have teens be eligible for the sex-ed license. Again, the analogy to driving seems instructive: I don't recall parental consent to be a pre-requisite for driver's ed or licenses in Canada--I haven't the foggiest how it works here in the US.

Invariably, there will be disagreements regarding the proper scope of laws regarding adult-minor sex and sex between minors. To my mind, however, prosecutors shouldn?t be trusted to make all the decisions about which consensual sex relations should be prosecuted under statutory rape laws (or other sex crimes) and which ones should not be. The sex-ed license might be a good way to ensure prosecutions for this kind of activity are tethered to some more informed ideas of reasonableness and non-discrimination in a liberal society. It might also be a good way to reduce the incidence of teen pregnancy and sexual disease transmission.