The Age of Consent in Context

The context in which I wrote my controversial article 22 years ago regarding lowering the age of consent was an actual case.

A college freshman had a relationship with a high school senior two years his junior. Her parents disapproved and called the police. The young man was arrested. His girlfriend refused to testify against him and was threatened with contempt.

A former student of mine represented the young man on a pro bono basis. He asked for my advice.

I told him that I thought a constitutional argument could be made based on the age of consent for choosing whether have an abortion or a baby. Feminists were appropriately pushing for a reduction in the age of consent for abortion. I suggested that if the right to choose is constitutionally based on procreative freedom, then it might follow as a matter of constitution law that a female old enough to have the freedom to choose abortion, should be deemed old enough to decide whether to have sex.

The lawyer used my argument in negotiations with prosecutors and the case was ultimately resolved in his client's favor. This case led me to think in general terms about the age of consent, which varies from state to state and country to country.

States in which 18 is the age of consent accord prosecutor's enormous discretion to selectively prosecute young men based on race and economic status. A high proportion of prosecutions occur when the young man is a person of color, poor, or from an underprivileged family, and when the female is from a white, privileged family.

It is always dangerous to the rule of law when prosecutors have the power to selectively prosecute, as criminal, acts that are widely engaged in (that is an argument widely made in the context of marijuana). A high percentage of teenagers engage in sex below the formal age of consent in their states.

In that sense, setting the age of consent at 18 has become somewhat anachronistic. Some states have tried to ameliorate this concern by enacting "Romeo and Juliet" statutes which decriminalizes sex below the age of consent when the older person is close in age to the younger one. That is the right approach as a matter of policy.

But as a matter of constitutional law, it would be difficult to justify a statute that gave a 17-year-old the right to choose to have sex, but denied her the right to have sex with a 30- or 40-year-old. The same would be true of a 16-year-old who had the right to choose abortion, but not the right to choose with whom to have sex.

Critics of my proposal argue, understandably, that nobody wants to criminalize the younger person – but only the older person. So, the younger person, usually the female, is not denied sexual freedom.

But that misses the critical point. If the man the young female chooses to have sex with would be committing a serious crime, that would have a significant impact on the young woman's right to choose.

In any event, I wrote my article as a provocative think piece, designed to stimulate debate. I have written over a thousand articles many of them about controversial subjects such as torture warrants. And they have succeeded in stimulating serious and constructive debates, both inside and outside of the classroom.

My article about lowering the age of consent stimulated a debate on the letters page of the Los Angeles Times as well as in other forums. Some people agreed with my arguments while others disagreed, but no one criticized me, until the #MeToo movement came along, and I was falsely accused of inappropriate contact with a 22-year-old and an 18-year-old (the 18-year-old initially lied about her age and claimed she was 16, but employment records made her acknowledge her original lie and concede she was above the age of consent when she falsely claims she met me).

So, let's continue to debate these issues on the merits. Let's stop the ad hominem attacks. And let's stop trying to create false motives for why I wrote this and other articles. Instead, let's focus what the best approach is for women, men, and the rule of law.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law Emeritus at Harvard Law School and author of "The Case Against the Democratic House Impeaching Trump." Read more reports from Alan M. Dershowitz – Click Here Now.