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Legislating Teen Sex: What's (Terribly) Wrong With Our Age of Consent Laws

Written by Martha Kempner for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post. Last month, my husband forwarded me this article from the Daily Beast and I haven’t been able to get it out of my mind since. The article focuses on a few young men who went to jail and wound up on sex offender registries ostensibly for having sex with their teenage girlfriends. While the young men were teenagers themselves, at 18 the law considered them adults whereas their girlfriends at 14 and 15 were under the legal age of consent. Now, in fairness, neither of these boys went to jail just for having sex with an underage girl, there were aggravating circumstances – one punched his girlfriend’s father and both violated judges’ orders to stay away from the girls. Still, all I could think about was that what started out as a somewhat typical high school relationship (a senior boy with a freshman or sophomore girlfriend is not at all that unusual) essentially ruined these young men’s lives. Not only did they spend time in jail and postpone any future plans, their names now sit on sex offender registries alongside those of serial rapist, child pornographers, and pedophiles. And as is human nature, all I could think about was my own life story. Once upon a time, a couple of decades ago or so, I was in one of those not unusual relationships between a sophomore girl and a senior boy.  In true high school style, we were fixed up by friends at the beginning of my sophomore year and had an on-again-off-again flirtation throughout the fall and winter (too much of which involved me watching from a distance as his relationship with a perky senior named Suzanne played out in the halls between classes). But by spring they had broken up and one fateful Wednesday he called. From there we began what would be my first serious and my first sexual relationship. By the time we had sex, we had been together for many months and professed our love for each other, I had nursed him back to puffy-cheeked health after he’d had his wisdom teeth out and he had spent a great deal of time with my family on Cape Cod. Though I can’t say it was a perfect relationship or the balance of power was entirely equal (he held some advantage by virtue of being older and more experienced), I can assure you that the sexual aspect of our relationship was consensual, mutually pleasurable, non-exploitative, honest, and protected from pregnancy and STDs. (Years later as a sexuality educator, these are among the litmus tests I would suggest to teens.) The problem that really didn’t occur to me until last week, however, is that from a legal standpoint it was not a consensual relationship. In Massachusetts—which has one of the least nuanced laws regarding age of consent—a person under 16 cannot give consent, and I was three months shy of my 16th birthday that summer. So, though I saw it as a normal and mostly positive sexual experience, had authorities been notified of it for whatever reason, they would have declared it a crime. This realization had my head swimming with questions. Should we really treat teenagers who have sex with other teenagers as criminals? Should our legal system play any role in regulating “consensual” teen sexual behavior? Is there a way to protect teens from exploitation without making them vulnerable to unnecessary prosecution? And what does all of this say about how society handles teen sex? Continue reading....