There is an important lesson we should learn from Texas's recent dealings with the Fundamentalist Church of Jesus Christ Latter Day Saints (FLDS) in Eldorado, Texas.
After Child Protective Services saw at least five girls who had been statutorily raped, and many others likely raped while underage, as well as young teenagers with their own children and papers documenting polygamous marriages to underage girls, the state took the traumatizing step of taking away all of the group's 400+ children, and then forcing them to learn how to ride bicycles, eat pizza, and sleep past 4:30 a.m.
In the meantime, local Legal Aid took a (grand)stand for liberty, using Texan's tax dollars, and rushed to court to get those children out of harm's way and back to paradise, or, as they call it, the Yearning for Zion Ranch. The Texas appellate courts did not disappoint. After trial court Judge Walther viewed the evidence, assessed credibility, and was visibly shocked at the group's practices and the plight of all of the children, the Third Circuit Court of Appeals quite rightly reversed her findings, trenchantly noting that only five of the statutory rape victims were still underage. The other fifteen likely rape victims are now over the age of consent, so it amounted to, basically, a moot point for them. Let's face it, they have their own families to raise now and hardly have time to press charges.
The Texas Supreme Court affirmed, which was inevitable, in light of the women's prairie-style dresses and hairstyles. As they frequently told reporters, the parents ached to get their children back in their arms and wanted everyone to know that whatever was done to their children was "done out of love."
The local prophet, Willie Jessops, responded with humility and contrition to the Texas judicial opinions, saying that no one had entered a marriage against a girl's consent.
Now, Texas law says that children are not capable of consenting to sex before age 16. I'm sure you can see the logic of his position, though: there is no need to enforce those laws against them.
Why shouldn't the law permit a 12-year-old to give consent to sex with an adult man? Pioneers like NAMBLA (the North American Man-Boy Love Association) made this point long before Mr. Jessops. There is even a political party in the Netherlands standing for this very principle. These age-of-consent laws are, well, in the way.
About 20% of boys are sexually abused and 25% of girls in the United States. If we were to ignore our age of consent laws, we could reduce those numbers dramatically.
And why stop with the laws governing sex? We could also reduce the incidence of other problems by refusing to enforce the arbitrary and irrational age limits on marriage, voting, driving, drinking, the draft, pornography involvement, child labor, and medical consent. Think of the economic savings alone if restaurants and bars did not have to have bouncers checking i.d. Plus the Gross Domestic Product would zoom higher with the introduction of new pornography products. Just think what we could accomplish if every illegal worker were replaced with an American child. It is hard to think of a better time to be brainstorming about such possibilities.
If we could jettison the age limits for drinking and driving alone, the number of teen drivers would decline steeply. Fewer teens, less risk. I think we have an obvious ally in the insurance industry.
There are other positive social benefits to ignoring the age of consent laws. For every kid tired of school, and dreaming of excitement, the military is a nice option. Another big plus -- children could be empowered to reject immunization shots and painful tonsillectomies, not to mention bone marrow transplants and insulin shots. Talk about a reduction in suffering.
There is yet another huge upside here - adult reputations are being destroyed over these age of consent barriers. Extreme sports star Brian Keith Patch, 36, was recently charged with having sex with a minor. R & B star R. Kelly has had to face trial for creating a sex tape of himself with a minor. Not to mention the many FLDS men who have only recently learned that their sexual relations with their nieces are illegal.
A world without effective age of consent laws might have saved the life of defrocked Fr. John Geoghan, convicted child rapist in the Boston Archdiocese where over 130 survivors alleged he sexually abused them. A fellow inmate, who himself was sexually abused as a child, killed him, apparently because he was a child molester. But for the consent barriers and stigma attached to adult/child sex, Geoghan might well be alive today.
The Texas courts have led the way to this brave new world for children. Some world.
Marci Hamilton is a law professor at Cardozo School of Law (Yeshiva University) and the author of Justice Denied: What America Must Do to Protect Its Children (Cambridge 2008).
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