A Critical (Non-Dershowitz) Look at Statutory Rape Laws

Posted in: Criminal Law

Last week, Jeffrey Epstein died in jail, apparently a suicide. The prior month, he was arrested on federal sex trafficking charges related to his and other men’s conduct with girls as young as fourteen. Most spectators to the very public humiliation that might have driven him to suicide, judged him very harshly. Epstein, in his mid-60s, had apparently slept with young girls and procured their services for some of his rich (and old) friends as well, allegedly including Epstein’s former lawyer, Harvard Professor Emeritus Alan Dershowitz (currently age 80). (Professor Dershowitz denies the charge, which is the subject of a defamation suit.) What united the reactions of everyone I heard discussing the story, at least prior to his sudden death, was an overwhelming emotion: disgust.

After noticing the disgust associated with Epstein, I started seeing it everywhere. I described the developing case to one of my teenage daughters, and an unmistakable look came over her face. That is just gross, it said. Epstein had seemingly harmed us all by placing an unwanted and revolting image in our minds.

Why does disgust matter? One reason is that it tends to make us punitive. If imagining an actor’s conduct induces nausea, we may conclude that the conduct must necessarily be wrong. Sometimes that assumption is not well-grounded.

At least the highly publicized crimes do not include an accusation Epstein kidnapped or used force against his alleged victims. But the girls were under the age of consent, you might object. For them, consent is irrelevant.

Legally, that is true. Consent is immaterial to statutory rape. But morally, actual rape is considerably worse. Part of how we know that consent remains morally relevant is that if the alleged perpetrators here were eighteen-year-old boys, we would likely be having a very different conversation.

Imagine that it was Jeffrey Epstein’s hypothetical grandson, 18-year-old Adam Epstein, who stood accused of sleeping with each of a group of 14- and 15-year-old girls. Many (though admittedly not all) of us would be calling for leniency or for the dropping of charges against the young Mr. Epstein. The “Romeo and Juliet” exception to statutory rape laws can take account of this impulse by exempting cases in which the perpetrator and ostensible victim are very close in age, although actual rape remains criminal in such cases. The legal irrelevance of consent is thus somewhat flexible.

We might ask why. Why, if 14- and 15-year-olds are too young to consent, do 18-year-olds potentially sleep with them without consequences? Is it that 18-year-olds are too young for criminal responsibility? Hardly. Until recently we (by which I mean states like Missouri) sentenced minors (people under 18) to death, so 18-year-olds plainly can be legally culpable. And although the U.S. Supreme Court ruled the death penalty unconstitutional for people who commit their crimes when under 18, capital punishment remains available for 18-year-olds.

I would suggest that what is going on, at least in part, is that 18-year-old boys sleeping with 15-year-old girls does not trip a strong disgust reaction (absent additional sickening facts). The coupling, if hardly ideal, makes some sense to us. No one thinks, in response to hearing about it, that “it must have been rape, because what 15-year-old would consent to sleep with an 18-year-old?”

From this comparison we see that we do not actually believe that 14-year-olds and 15-year-olds are all incapable of consent. We can think of reasons why they should not consent, but that is very different from cannot. Under a certain age, it goes without saying, we truly would want to say that consent is impossible and that anyone sleeping with someone of that age is a child molester. The law of statutory rape may accordingly be doing something different from protecting girls from predatory behavior. It may protect our sensibilities from the idea of unions that disgust us. And that could be why people so rejoiced in Epstein’s arrest. The thought of an older, decaying billionaire defiling pretty young girls made people gag.

Professor Dershowitz wrote a 1997 column criticizing statutory rape laws and noting that many girls have sex in their early teens. Dershowitz observed, moreover, that we allow girls the right to an abortion, so we obviously believe they are capable of consent. As Dershowitz’s Harvard colleague Professor Laurence Tribe explains, however, the teenage right to abortion does not really bear on the issue, because not having an abortion means that a girl has to carry a pregnancy to term and give birth, an even more invasive and risky imposition on her body than an abortion. By contrast, a girl of 14 deprived of the right to have sex will experience no comparable invasion of her body. Furthermore, the minor’s right to abortion includes a parent’s ability to say no if the minor cannot convince a judge that she is mature enough to determine her own best interests. Dershowitz would presumably reject a legal framework in which someone like Epstein would face statutory rape charges if he did not consult a 14-year-old girl’s parents before sleeping with her.

If I am right about disgust driving statutory rape laws, so what? If Epstein were the only target of such feelings, it might seem legitimate to be indifferent. After all, prostitution too is illegal, and an extremely wealthy man should not be above the law. But humans here and elsewhere have a troubling history when it comes to disgust-based regulation of sexual conduct. Think of similarities between statutory rape laws of today and anti-miscegenation laws of yesteryear and the nominally private conduct of racist mobs pursuing African American victims. There too, especially in the latter case, the mobs may have felt disgusted and then outraged at the prospect of a black man “defiling” white womanhood. People entertained a presumption of force, because—like the 14-year-old girls with Epstein, who would have agreed to that? One might even say that although racist murderers routinely accused their victims of rape, mobs may in truth have been reacting simply to an (often-imagined) consensual relationship. Consent might thus have been irrelevant to them. No one interrogated their racially-driven disgust but simply ran with it and took revenge.

Epstein too was defiling a presumptively pure (young) girl to satisfy his nauseating desires. He seems like a completely different animal from the 18-year-old boy who sleeps with a 15-year-old girlfriend in high school. And we know that same-sex relations long triggered disgust as well, as Professor Martha Nussbaum has discussed. This might have been especially true of relations between more than two men, of the sort that once appeared at gay bathhouses. Responding to their own disgust, people in the very recent past would assault and even kill gay men and boys. And the law prohibited gay activity too—as recently as 1986, the U.S. Supreme Court in Bowers v. Hardwick upheld a sodomy law in Georgia that in theory subjected people to twenty years’ imprisonment, with Chief Justice Burger, in a concurring opinion, citing Blackstone for the proposition that “the infamous crime against nature” is an offense of “deeper malignity” than rape, a heinous act “the very mention of which is a disgrace to human nature,” and “a crime not fit to be named.” It was only in 2003 that Lawrence v. Texas overruled Hardwick. Perhaps it is disgust that keeps prostitution illegal now, in most of the country.

I do not want to be heard to say that Epstein did nothing wrong or that he is a victim comparable to people who were lynched in the past. Our disgust can sometimes help us determine that something bad is in fact going on—it is a piece of information that connects to our moral sense. We need to be careful, however, not to allow disgust to power our moral choices wherever it leads and without interrogation. I have no doubt that many of us react to what Epstein did with undisciplined disgust. What could be more revolting than a man in his 60s having sex with a teenager? But we ought to ask whether we believe that teenagers are truly incapable of consent and whether a man in his 60s is morally distinct from an 18-year-old boy, along with whether that difference explains the legislation. We may want to prohibit statutory rape even after a thorough interrogation, but it is worth considering exactly what we are doing and why, if we are to ensure that it is just.

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