First, let me say I’m deeply gratified by the quality and sincerity of the discussion going on in the comments section of my Friday post on this subject, “Why were the 14-and-15-year-old girls…”. I’ve also exchanged emails with several of you – some of them angry. But in all cases, they’ve wrestled intelligently and honestly with probably the most sensitive subject in our society. I’m very proud that LL can serve as a hub for this type of debate. The typical slash and trash TV and newspaper forums pale in comparison. Thanks.
One of the very best comments came from Kemp Brinson, whose Polk law blog I neglect entirely too much. In fact, Kemp’s comment is so good, and raises so many legitimate points, that I won’t get to them all in detail. So go read it for yourself.
But here’s the most important, I would say, and probably the most obvious:
My personal opinion is that these sorts of things are extremely fact-specific, and it’s tough to [say] how this particular situation should play out without talking to everyone involved, hearing all sides of the story, etc…
Yup. Every fraught issue surrounding this case flows directly out of one’s interpretation of its fact record. And it shows how important it is that words, like “making out”, or “grown men”, or “kids,” or “monster,” or “sex” have real world meaning. In my first post, I made the mistake of taking someone else’s words and applying my own meaning to them without checking if the writer had assigned those words any meaning of his own. I know better than that. In fact, I write quite a bit about the danger of abstraction. I stand by the conclusion I reached — although the headline was unnecessary hyperbole — but I reached it too easily. I made it seem simple. It’s not. And, again, I know better. Almost nothing is simple. Sorry.
So what is my interpretation of the fact record here? Based on all information available to me, including the police report and some non-official information that has floated in via email, here’s what I think: We have two sets of sexually mature – not emotionally mature – teenagers engaging happily and mutually in sexual activity not involving intercourse in a truck late at night. They were interrupted by a sheriff’s deputy doing his job. Somehow, this led to two high school seniors facing second degree felonies and 14-and 15-year girls undergoing parentally-sanctioned sexual assault exams in Lakeland Regional Medical Center in the middle of the night. These exams, presumably, included vaginal swabs, even though no one expected to find anything on the vaginal swabs. I remain unclear about who pushed whom to give the girls the exams. But the sheriff’s office has emphasized that these cases generally depend on the wishes of the victims’ parents – at least one of whom was “irate” in this instance. On the other hand, I’m not at all sure that it’s true that parental consent is actually required, and I don’t know how the act of getting consent occurred. In any event, it seems to me that these girls received unnecessary, and essentially punitive, rape exams. I think they were being punished for their sexual play, even if the people who made the exams happen would never acknowledge them as punishment, even to themselves.
If the fact record changes, I may revise my interpretation. Maybe the authorities and parents had good reason – undocumented anywhere – to believe that forcible vaginal rape occurred, and fluid evidence needed to be collected, and the girls, free from proximity of the boys, told an entirely different story. Maybe the girls insisted on the exams. Anything is possible. But there’s no indication of any of that at all.
For now, I think this case reflects a society too often devoid of reason in dealing with teen sex – and sex generally. I suspect — but I don’t know — that prosecutors will eventually reduce and/or drop the charges, and the boys will be able to go on with their lives, with a gratuitous scar that will likely linger with them in one way or another until they die. I think it’s actually worse for the girls. If I were one of those girls, and that sexual assault exam went down the way I think it did, I’d probably be looking for somebody to blame other than myself. Mom and dad would be close and convenient. I fear this type of thing would stain a parental relationship for a long time. Life doesn’t end at 16. What exact protection is being provided that outweighs those consequences?
Kemp also asked, reasonably:
Billy, if you were to write the law, how young does the girl have to be and how old does the boy have to be for consent not to be a defense? Or do you envision a different paradigm entirely?
Here’s where the rubber meets the road, so to speak. (Sorry, can’t help it, even when I’m being serious…) And, as Kemp says, I think I envision a different paradigm. Here’s how Philosopher King Billy imagines a better regulatory structure and culture for dealing with teen sex.
1) Ideally, I would remove 9th grade from high school and then decriminalize consensual sex between kids in high school. As I’ve said to a couple of people, this was really a crime of administration. Three or four months ago, these boys weren’t legally adults. Today they are. Nothing magically changed in that time. The same thing – in reverse – goes for at least the 15-year-old girl. The consequences of small aging increments should not be so radical. Calendar age is a stupid, counterproductive legal measure in a natural world that doesn’t much care about our calendar. Sexual maturity – whatever that even is – comes at different ages and times. There are plenty of sexually mature girls who are freshmen. There are plenty of freshmen who are not sexually mature.
It’s true in at least one of these two incidents – and maybe both – that the kids knew each other from school. And I suspect that most senior-sophomore or senior-freshman relationships develop though multi-age classes or athletics or lunch. High schools regularly mixed kids of all four class levels in my day. I suspect they still do, although I know there has been some effort to wall off the freshmen. But unless you physically remove freshmen from the campus, I think the kids will find a way. They always have. When you throw all these hormonal kids together in a bowl and tell them they can work out and play the trumpet together, I think it’s silly to think the interaction is going to stop at that level.
However, I don’t think we’re ever going to see ninth graders back in middle school, which would present its own problems. So let’s not deal in fantasy. I would extend the decriminalization of consensual sex between kids to high school freshmen. Calendar age wouldn’t matter. I’m making the age of consent enrollment in high school – rather than a number – and postponing adulthood, for legal sexual purposes, to graduation or 19, whichever comes first. (And I could probably be talked out of 19.) Think of it as “status of consent.”
I think this would have zero impact on the actual amount of sex between 18-year-olds and 14-year-olds. The kids who are sexually mature at 14 are the same kids whose bodies and bearings are likely to catch a senior’s eye. The kids who aren’t sexually mature won’t. This seems like common sense to me, but I’m open to more empirical questioning of this assumption.
This has the practical advantage of making it clear to parents that they have no legal hammer to swing against the 18-year-old baseball player caught mutually masturbating with their daughter. If you’re a parent, and you want to make sure your son or daughter isn’t doing that, it’s going to be on you. There will be no raging to the cops. I suspect that knowledge would motivate many parents to exert more active control over their kids’ dating patterns.
And I can see now, after I’ve thought about this more, why many people reacted differently that I did. These girls, unquestionably, put themselves at the mercy of these boys. I think the fact record shows that the girls didn’t want or need any mercy, and there’s no indication the boys wouldn’t have given it. But that doesn’t change the power relationship inherent in what happened in that truck. Those two boys could have done whatever they wanted to those two girls in that moment. They controlled the girls’ freedom, their means of escape, and they certainly could have physically – and perhaps mentally – overpowered them. And I fully agree that’s a big problem.
So let’s attack the power dynamic, not the sex, which is a product of an attraction you and I can’t do anything about. Why not treat making out in a car like something between DUI and careless driving? Intimate parked loitering – a second degree misdemeanor, punishable on a second offense by a year’s suspension of the driver’s license for everyone in the car.
This would, hopefully, have the effect of steering kids into more direct back and forth from the sites of their dates and encourage them to spend more time at each other’s homes, where the isolation may not be so acute.
In this case, it would mean the boys don’t get off scot free, but don’t face prison either. And who knows, had this legal culture been in place, maybe these kids are hanging out at one of the girls’ houses, where they would be far less helpless.
I don’t think it’s realistic for parents to just declare, “I will never let my 14-year-old date an 18-year-old.” This question of “let” is a tough one. It’s awfully hard for one human being to achieve control over another’s behavior. If parenthood has taught me anything, it’s that. I’ve become pretty humble about how much of my will I can impose on my children. Again, kids in thrall with one another will find a way, and it may be more dangerous than other alternatives. I think it’s wiser to insist the boy come over to visit, or go directly to and from a movie or a school function, something that has a built-in time period. This anti-intimate loitering law could help that buttress that sort of pattern for senior-freshman type relationships.
3) A number of people have asked about – or insinuated – how I would treat my own 17-year-old daughter in a similar situation. I’m going to pass on that one. I brought her abstractly into to a political discussion concerning abortion a while back, and I regret it.
But I will say this, which she has read and signed off on.
I intend to never, ever judge her virtue by her sexual behavior. This was true when she was 15, too. I care about her kindness, her curiosity, her willingness to engage in family and community responsibilities. And I care about her pride in herself. I don’t own her body or her sexual compulsions or experiences. That is not part of my jurisdiction. I hope, as a parent, to provide a home environment that helps her make the decisions that are right for her and cause her the most happiness and fewest regrets. What that means in concrete reality is between me and her and her mother. The same goes for our boys, but as this incident shows, the question of decision tends to fall on girls. That’s not fair, but then, life’s not fair.
Sex is the most powerful force in the universe. It overwhelmed Tiger Woods, probably the most monomaniacally impervious person on the planet. The full institutional might of the Catholic Church can’t pray or excommunicate it into submission; but sex may force the church into submission. David could whip Goliath, but Bathsheba laid him low. The cliches go on and on. How many of our friends’ marriages have succumbed to the irresistible peculiarities of sex?
And yet you hear people talk about sex addiction as if it’s unique condition. The entire species has sex addiction. Sex is the means God, if you believe in God, gave us to perpetuate our existence. He could have chosen head-butting, or asexual amoebic bulging, but He didn’t. He chose sex, so we damn sure better be addicted to it. And, of course, the Darwinians among you will already believe that sex has evolved into something so thrilling and pleasurable because life wants as many shots as it can get to replenish itself. Life wants you to do it.
I fully acknowledge and respect the awesomeness of that power. Most adults, including you and I, don’t stand a chance against its full force. You think our kids do? In this case, they were so driven to touch intimately that they did it within feet of each other in the same confined space. And they would not be the first or the last teens so driven.
So let me tell you something, Dad. The pre-date conversation you have with your 15-year-old daughter and her 18-year-old suitor about chaste behavior out there in the black night is the most meaningless conversation you will ever have with humans.
They’re probably not even lying to you. It’s like sending them to the beach and making them promise not to drown if they get caught in a riptide. The fact that this is a promise that a sexually mature boy or girl can’t make doesn’t make them monsters or sluts.
And yet, that’s exactly the type of thinking our pornographic news and popular entertainment culture encourages — because we seem to want it to. It’s not just that there’s a massive gap between Tim Tebow and predatory monsters, between whores and virginal princesses, it’s that few of those abstractions even exist. And yet, our culture sets them up as markers and then allows our lawmakers to apply them in a way that bears little resemblance to the world 98.7 percent of humans inhabit.
And here’s where I fault Grady Judd and won’t apologize for my — admittedly hyperbolic –headline: “Grady Judd makes it a crime for a senior to date a sophomore.”
You can tell the sheriff’s office hates this case, which is actually comforting to me. If it were proud of it, we all know Grady would have stood up – like he does about once a week – in a big press conference talking about how he’s protecting the children, etc. Instead, someone picked it up in a big pile of jail reports. And Grady is emphasizing the parental role in pursuing this prosecution – not his agency’s. A less charitable person than me might say he’s throwing the girls’ parents under the bus. I think he knows this is crazy.
I like and respect the sheriff. He’s very smart and perceptive. I think he runs a tight agency. And he’s an extraordinary politician. Grady could probably go toe-to-toe with Jesus Christ in a Polk County election. But I wish he would use some of that credibility and perception and megaphone to help reshape the way we think about teen sex law and other laws that make no sense – see marijuana prohibition. He’s never shy about advocating for changes to law or parental behavior that the mob seems to like. Remember the big anti-Myspace campaign?
Think how much more it would mean if someone with Grady Judd’s lawman credibility called for a re-examination of how we approach teen sex prosecution. If his agency has no problem with the widespread use of parental waivers against prosecution in individual cases like the one that just happened, and it doesn’t, wouldn’t it make more sense to call for bringing the law more in line with actual behavior?
I can dream, I guess.
Finally, if you’re a regular reader, you know that everything in my life eventually comes back to the Drive-By Truckers. So I want to recommend their song called “Zip City.” It’s about a 17-year-old boy, a 15-year-old girl, an angry father, and a truck.
It starts: “Your daddy was mad as hell; he was mad at me and you…” It ends with the line: “I get 10 miles to the gallon; I ain’t got no good intentions.”
It is, for my money, the best work of art I know about being 17 (or 18) and 15 in America when all other abstraction and illusion and artifice is stripped away.
What’s really telling is that people love “Zip City”. The band has to play it almost every night for an encore, and they usually let the crowd sing the final verse. The people who hear it instantly recognize its authenticity. It’s universal.
So my new paradigm in dealing with all of this would start with honesty and a recognition that when it comes to sex our intentions are virtually irrelevant.