Legal Commentary

Here are two recent criminal prosecutions that suggest a bizarre separation of official legal norms from ordinary social norms:

Item #1: Two teenagers -- a sixteen-year-old girl and a seventeen-year-old boy -- took racy pictures of themselves with their cell 'phones. They did not distribute the photos to anyone else. Under state law, these photos constituted child pornography -- and the teenagers were prosecuted under state law either for producing, directing or promoting a photograph featuring the sexual conduct of a child or possessing child porn. (see news item) The underlying behavior, incidentally, was not illegal under Florida law, which permits teenagers of this age to have sexual intercourse with each other (although not with an adult).

Item #2: A 12-year-old and a 13-year-old have sexual intercourse. Under Utah law, sexual intercourse with an individual under the age of fourteen is a second-degree felony. State prosecutors charged both children with sexual abuse of a minor, making the individuals simultaneously perpetrators and victims of sexual assault. (See state court opinion)

My visceral reaction to both cases is that the law has gone mad. On cooler reflection, it occurs to me that, in the area of adolescent sexuality, our criminal laws perpetuate norms that are at odds with the behavior of an enormous percentage of ordinary high school and middle school students. Roughly half of our teenagers have sex with each other. Roughly 8 percent of them do so before the age of fourteen. (see KaiserFoundation fact sheet) (Fewer photograph it, of course, but it is hard to see how the depiction adds measurably to the culpability of the act). The "madness" of the law is simply the curious gap between what our children actually do and what the laws says that they ought to do (or not do).

Two questions: Why? And what ought to be done?

As to why: Is the problem that obsolete laws remain on the books? Or that current prosecutors are simply distorting sensible laws by enforcing them in unforeseen ways? Or do our lawmakers actually adhere to official norms radically out of sync with the behavior of their children?

As to what ought to be done: Should courts respond by invalidating such laws (as applied) on the ground that such prosecutions are simply contrary to ordinary social norms, as reflected by facts on the ground of which the courts can take judicial notice? (The canonical citations would be Harlan's dissent in Poe v Ullman, Lawrence v Texas, Justice Powell's plurality in Moore v City of East Cleveland, etc). Or should constitutional law butt out, because norms are actually unstable in this area?