the law is not an end in itself, nor does it provide ends. It is preeminently a means to serve what we think is right.

Among the many things churning through my brain that I forgot to mention in yesterday's post: an odd dilemma in which I find myself, thanks to a shared confidence from a friend. This is someone that I know really well (intimately, you might say) but also with whom I am not terribly close. He recently told me that a young person in his family has become...active, physically speaking, with an opposite-gender partner (presumably of approximately the same age). My friend and his former spouse are not pleased with this turn of events, but also are not terribly surprised, nor are they overly upset. They have not, to my knowledge, indicated their displeasure in terms like "Do not" or "Not yet". In fact, what they have done is to--in my mind, at least--encourage the child to continue this behavior, by (a) refusing the child's request for easy-to-use birth control, (b) attempting to monitor (obviously second-hand) the child's, er, natural processes, and (c) basically standing back and saying, "Well, it was going to happen sooner or later."

This kid's not even old enough to have a driver's license. This makes the kid (and likely, though not necessarily, the kid's partner) FAR below the age of consent - which is 17 in the state in which they live - to engage in the activities that the parents are blithely allowing.

I find that I have a serious problem with this. Yeah, don't get me wrong, I'm not going to try and pretend that I never got away with anything when I was a teen. I'm certainly not going to say that laws that I broke (or still break) should be applied to everyone else but me. But I will say that laws of consent really do exist for a reason. What's the reason?

Children's brains are not fully formed. If you don't believe me, spend some time with one. Better yet, spend time with a pack of them. It won't take long to realize that their reasoning skills are not up to par with the average adult, which is not saying much. Moody, impulsive, emotional, quick to judgment, irrational...on a good day.

A statute that sets an age of consent--the age at which a person is considered to have the requisite maturity to make independent decisions regarding sexuality and marriage--is one of the basic child protection laws. Every state in the U.S. has one, as do most other countries. This Wikipedia page will be enlightening for anyone seeking more information on the topic.

Some opponents of laws like this will argue that each individual matures at a different rate, and so a very mature 16-year-old should not be "punished" by a statute that does not allow him/her to express that maturity in sexual matters. Others will say that the laws are arbitrary, in that the difference between a child of age 16 years and 364 days and a child of age 17 years is absolutely unnoticeable, so the law draws a distinction that does not exist. Another point frequently made is that by accident of location, one can be subject to the harsh law of one state rather than the lenient law of another.

In response to the first: the alternative to dealing with this problem (that is, truly nonconsensual contact) on a case-by-case basis in which the maturity of the individuals in question would be judged (by whom?) independent of their ages is completely unworkable. Put simply, who would pay for that? And it would be a sad attempt to get the horses back into the barn after the door is opened, or whatever the cliche says; the damage will have been done.

In response to the second: many laws are arbitrary. Perhaps even most of them. What is the alternative to that? No laws? Or, do the best we can with what we have, and try not to go overboard with the arbitrariness, and rein it in (through the appeals process, for instance, and everybody's favorite rein: subsequent voting for [or against] elected officials who create these laws on our behalf in the first place) as well as possible, and maybe sometimes consider ourselves lucky to live in a place where we have some say in how this all shakes out. It was arbitrary when I was that age, too, after all.

And in response to the third: if one wishes to be exempt from the laws of the land in which one lives, one has a few choices. One can leave (unless limited from doing so by previous choices); one can stay and "wish"; or one can stay and work to change those laws which are abhorrent. That is, essentially, part of what American democracy is all about. Therefore, if your accident of birth (be it your own choice of where to settle, or simply where the wagon broke down on your ancestors' trek across the land 10 generations ago) left you on the wrong side of the state line, it's still up to you to change it.

Politics/government/law rant done. Where does it leave me?

My friend is permitting his child to engage in activities, begun without his prior knowledge or "approval", to which the child is legally incapable of consenting. If the kid and partner are somehow "caught" in this activity (God forbid), one or both of them faces serious criminal charges. The proximity of their ages--and the presumption that neither of them falls into other "worse" categories of offenders--will be considered an affirmative defense, i.e., "Yes, I did it, but there is a reason that I should not be held liable." Still, even if the result isn't prison/jail/fines/registration for life, I can't help but think that it's still wrong.

And that it's up to the parents, since they know, since it's all (well, clearly not all, but, enough) out in the open, to step up and really do their jobs, to have the hard talk and enforce some hard rules. Because the alternatives that I see are ugly, and sad, and imminently avoidable.

But it's not up to me, so I'm keeping my mouth shut. Except here.

[title quotation by William Joseph Brennan, Jr.]

1 comment:

  1. Y'know, sex and relationships in general are hard enough for mature adults (all 3 of us on any given day ... lol), and I think a lot of the adult dysfunction about these topics stems from situations like you're describing.

    One thing that can't hurt, however, (IMNSHO) is talking honestly about it rather than "attempting to monitor...the child...." Parents need to grow a pair and TALK to the kid about their expectations and wishes. You can't expect to MAKE a kid this age do anything, but you can set rules and enforce them with understanding that they'll be tested.

    I know the biggest punishment for me as a kid was hearing those dire words "I'm very disappointed in you[r behavior]."