Legal Commentary

Last week I blogged about the uneasy case for a sex-ed licensing scheme that would, with other conditions, serve as a safe harbor from statutory rape prosecutions for sex between and with minors over a certain age (e.g, 15). The proposal, and the couple of posts that led to that one, have met with some interesting reactions. See especially this post from Simple Justice.

Over at Mirror of Justice, Prof. Rob Vischer responds:

I'm not sure how to articulate all of my grounds of discomfort with this proposal, but here's one: the driver's license has become a rite of passage for American teenagers.  Even if you do not need to drive for purposes of your daily existence, your entitlement to drive is sought-after goal, a sign of maturity and enhanced independence.  As Cass Sunstein has pointed out, one of the government's central roles is norm management.  In this regard, state action designed to prevent harm from risky behavior that we know is going to occur can easily begin to shape the norms that influence future behavior.  I don't have a problem with state regulation contributing to the centrality of driving to the adolescent experience, but what if we're talking about the centrality of sexual autonomy to the adolescent experience?  A city's free condom program has become a government message (literally) telling us all to "get some," and I'm wary as to the message of a "sex-ed license" for minors.

As I mentioned in some comments to the original post, Rob is right that there are definitely norm-management issues involved, but consider whether the same concerns exist regarding gambling, alcohol, and tobacco. Why do norms against abusing these exist even though their use is permitted by law? Maybe, one could respond that these three things are restricted to adults, so it's easier to manage the messages we send to minors about these things. But to my mind, that still begs the question regarding how we're able to create norms against abuse while still allowing the law to permit them for adults.

For what it's worth, I am much less troubled by the message that this license says: "go get some action," than the injustice and inefficiency of punishing purely consensual relations between mature and informed individuals.  But I should note that I'd be fine if the sex-ed license focused on the  consequences of sex so it served a bit like a "scared straight" movie.  Maybe a condition for the license would also require everyone to watch Knocked Up and Juno too...