Two Teens Have Sex. Neither Could Legally Consent, But Only the Boy Gets a Felony Charge.

Robby Soave,  reason.com

Underage teens having sex is awkward, but it shouldn’t be criminal.

If two people are equally unable to give consent, but have sex anyway, should either be charged with a crime? It’s a question that many college administrators wrestle with when drugs and alcohol are factors in sexual assault disputes. The verdict often seems to be that male students are uniquely responsible for ascertaining that their sexual partners are in a state of mind to consent, even when the female is the initiator and both are intoxicated.

This double-standard for men seems to apply to underage teenagers as well. Take, for example, this recent story in The Courier-Journal: the Kentucky Supreme Court has agreed to hear the case of “B.H.,” who was 15-years-old when he was charged with sexual misconduct and possessing pornographic material featuring a minor (the latter is a felony charge). B.H. was in trouble for having sex with his 13-year-old girlfriend and exchanging nude pictures with her. The acts were voluntary, though neither teen could legally consent to sexual activities since they were both underage at the time.

The girl’s parents went to the cops when they found out, and B.H. was prosecuted. (Even though his parents could technically have done the same thing to his girlfriend, they opted against that course of action.) He plead guilty, had to register as a sex offender, and was remanded to a youth treatment center for almost a year. He is now challenging that outcome after the fact.

Assistant Attorney General Gregory Fuchs maintais that B.H. pressured the girl and had been involved in one other incident—a prank of a sexual nature—that justified his punishment:

He also cites the girl’s testimony that B.H. said he “would tell me what to do and how to do it,” and says B.H. was more culpable because he sent the first photo and threatened to tell friends they were having sex if she didn’t send him one back.

“There was only one victim in this case, C.W.,” Fuchs writes, “and it was just as illegal” for B.H. to “possess child pornography” — the sexted photos — “as it would have been if he was 51 years old.”

That may be a defense of what was done to B.H., but it’s not a very good defense of the soundness of the law. Of course it’s different for a 15-year-old to possess nude photos of a 13-year-old than for an old man to do the same. One is predatory and unnatural; the other is an awkward, yet remarkably common part of growing up. When local authorities in the various states undertake it upon themselves to crack down on sexting, they invariably find that half the kids are doing it. What’s more likely: that half of all underage kids need to put on the sex offender registry and packed off to reform school, or laws designed to prevent adults from abusing children were written so broadly that they are inadvertently ensnaring some unlucky young miscreants?

Even if I believed these teens were guilty of sexual crimes, I would balk at Fuchs’ approach. What better way to foster unhealthy sexual predilections in a kid could there be than telling him he is an illegal exception, public labelling him a deviant, and exiling him to a school for other deviants?

Some states have recognized the absurdity of criminalizing consensual sexual experimentation between teens, either by granting exceptions if the they are close in age, both underage, or in relationships. As The Courier-Journal noted:

And in neighboring Ohio, the state Supreme Court in 2010 held that it was unconstitutional to criminally charge a child who was himself legally unable to consent when he engaged in sexual conduct with a same-aged peer.

“Each child is both an offender and a victim,” that court said, “and the distinction between those two terms breaks down.”

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