The Crazy-Quilt of Our Age of Consent Laws

by Jonathan Dolhenty, Ph.D.

Copyright 1998 by The Center for Applied Philosophy, Sixes, Oregon.
Originally appeared on The Radical Academy website and reproduced with permission.
Dr. Dolhenty is executive director of The Center for Applied Philosophy.

Few people seem to be aware of the crazy-quilt of our laws regarding the age of consent for sexual activity. Even fewer people seem to know anything about the historical background of the consent laws.

The common law, from which America gets much of its precedents in the legal field, set the age of consent at age ten. In other words, participating in sexual activity with someone above the age of ten did not result in the crime of "statutory" rape or child molesting. The activity may have come under other statutory or informal social regulations, but anyone over the age of ten could consent to a sexual activity.

During the latter part of the last century and the early part of the present one, attitudes towards sexual activity began to change in America and so did attitudes toward the age of consent. California
was one of the first states to raise the age of consent. It raised it from ten to fourteen in 1889 and then from fourteen to sixteen in 1897. Then, in 1913, California again raised it from sixteen to eighteen.

A number of other states then joined the bandwagon and raised the age of consent including Arizona, Colorado, Florida, New York, South Dakota, and Wyoming. Tennessee went the furthest: under Tennessee law, it was a felony to have sex with any woman under twenty-one.

Under the new statutes the age of the male made no difference. If two sixteen year olds got involved in sexual activity, the boy was guilty of rape and the girl was officially an innocent victim. It was legally the same regardless of whether she was, in fact, an innocent victim or a
willing and eager partner in "crime." The laws made teenage sex a serious crime&emdash;for the males. It was a crime to take a woman's chastity, even if she gave it away. It was age discrimination
at its best.

The age of consent laws have never made any sense. The variances among the individual states is enormous and what would pass as a willing, consensual sexual encounter in one state is a serious crime with severe penalties in another.

When I was a police officer, I was involved in a situation that illustrates the problem. The state in which I worked had the age of consent at eighteen. While I and another officer were on patrol one
Friday night, we made a pass through one of the local parks. We spotted an automobile parked in the middle of one of the single lanes that roamed throughout the park. The car, in fact, was blocking the roadway. We got out of the patrol car and approached the offending vehicle. We peered through the windows and spotted a couple in the back seat, naked as jay birds, engaged in a sexual act. We tapped our flashlights on the back window, scaring the devil out of the occupants.

We managed to convince the couple to get some clothes on and step out of the car. Since the couple looked rather young, we demanded some identification. The driver licenses they produced showed that they were from the next town, the boy was seventeen years old and the girl was eighteen. The girl was of legal age, and could give consent to the activity. The boy was underage, technically a "child," and could not give legal consent.

In an interesting twist on a common situation, the boy was the "victim" in this case and the girl could be charged with anything from "statutory" rape to child molesting. She would be a sex offender and
be so marked for the rest of her life. She would have to register as a sex offender with the police department of any city she moved to throughout the state. In short, her life would be miserable. This would be so even though they both were in the same class in high school and had a boy-friend-girl-friend relationship.

Neither the other police officer nor I could see ourselves branding this girl as a rapist or child molester. The boy had been a willing "victim" even though the law said he couldn't give consent. Had they been married, which they could have been under the law, the act they were
engaging in would have been none of the police's business (except for the fact they were doing it in a public place). The boy could legally quit school (the age of consent for that was sixteen). The boy could legally enter the Marine Corps and defend his country in time of war (the age for that was seventeen with parental approval). He could, in short, have died for his country, but he was a "child" as far as the law was concerned and could not legally engage in sexual activity.

So what did we do? My fellow officer and I gave the couple a traditional lecture on the dangers of what they were doing and particularly doing it in what constituted a public place. We put into
them what "fear of hell" we could and let them go home. That was the sensible thing to do.

The information in this article and the graphs is assumed to be accurate as of 1995. The sources used to obtain the information are:

The World Almanac, 1995;

Lawrence M. Friedman, Crime and Punishment in American History (BasicBooks, 1993);

Peter McWilliams, Ain't Nobody's Business If You Do (Prelude Press, 1993).

Look at the age of consent for the state of New Mexico in the chart on the left below. 13! Does this mean the kids who live in New Mexico are much more mature and intelligent than the kids in the other states of our nation?

I wonder why the kids in some states are considered mature enough to make decisions but in other states they are not? If a kid goes from Wisconsin to New Mexico, does he or she get "instant" maturity? If a boy or girl goes from New Mexico to Wisconsin, do they "instantly"
become immature?

Does any of this make sense?

The graph at the right below gives the ages at which people can get married in the United States.

There are some interesting things one finds in analyzing the graph:

The boys and girls in California must be smarter and more mature than other kids in the country since they can get married at any age with parental consent.

The kids in Hawaii must be considered more mature than other kids in the nation since they can get married at 16 without parental consent. Notice that a girl in Massachusetts can get married at 12 with parental consent and in New Hampshire at age 13. But in New Hampshire, she can't consent to sexual activity until she is 18. Does this mean she can't consent to sex even though she is married under the age of 18?

In Mississippi, the boy must be 17 and the girl 15 to get married with parental consent. Isn't this age discrimination in violation of the civil rights laws?

EDITOR NOTE: The following chart appeared with the original article and is presented here for completeness. However, the most accurate information on the various ages of sexual consent are at
http://www.ageofconsent.com/ageofconsent.htm