THE BLOG
03/18/2010 05:12 am ET Updated May 25, 2011

Embracing Teenage Sexuality: Let's Rethink the Age of Consent

At the opening of America's iconic (albeit controversial) romance epic, Gone With the Wind, 16-year-old Scarlett O'Hara fends off flirtatious propositions from the 19-year-old Tarleton twins -- a moment rendered indelible in the subsequent film by the gifted actors Fred Crane and George Reeves. I suspect few of the countless high school students who read this novel each year reflect on the morality of the age difference between Scarlett and her suitors. The stark reality is that a consensual sexual relationship between a 16-year-old and a 19-year-old is a prison offense in many states, including New York and California. New York State goes even further: Two 16-year-olds enjoying a voluntary sexual relationship are legally committing crimes against each other, with both partners being "victims" and possibly even sex offenders. These draconian and puritanical laws are largely the product of a conservative political culture that has transformed the fight against child molestation into a full-blown war on teenage sexuality. We now live in a moral milieu so toxic and muddled that we lump together as "sex offenders" teenagers who send nude photos to each other with clergymen who rape toddlers. A first step toward reversing this madness -- and actually protecting the health and safety of teenagers -- would be to revise the age of consent downward to a threshold in accordance with those of other enlightened nations.

The widespread decriminalization of homosexual intercourse over the past two decades has led many Western nations to reexamine "age of consent" statutes for both same-sex and opposite-sex couples. Great Britain, after considerable national debate, chose 16 at its magic number in 2003, although a minority of liberal Britons, led by gay rights activist Peter Tatchell, continue to push for a cut-off at 14 years. In 2008, Canada has also settled upon 16. French law sets the age of majority, in matters of romance, at 15. Our other closest cultural and moral allies fall into a similar range: Belgium (16), Denmark (15), Germany (14-16), Greece (15), Holland (16), Italy (14), Norway (16) and Sweden (15). The outliers are even lower, not higher, such as Spain's threshold of 13. What these nations have accepted, and many in this country still refuse to acknowledge, is that teenagers do have sex -- lots of it -- and that criminal law is neither an effective or an ethical means of deterring their sexual desires. (The average age of first sexual intercourse remains well below 18 in the United States, including in those states with an 18-year-old age floor, suggesting that a majority of teens violate these laws with impunity.) Furthermore, when it comes to older teens, it is not at all clear why safe sexual relationships should be deterred. If a 16-year-old can enjoy sex responsibly -- using birth control, taking measures to prevent the spread of disease -- and he or she wishes to add sexual pleasure to the rich tapestry of adolescent life, why shouldn't we encourage that individual to do so? It seems a far less dangerous endeavor than hunting, which New York licenses at the age of 12 (versus 17 for intercourse) and California allows at 16 (versus 18 for sex). Driving, too, is far more dangerous than sex. Whether the age of consent should be 16 or 15, or even a year younger, is a complex question that our society needs to address. Keeping the age of consent at 18, as do 12 states, is no more reasonable that setting it at 10.

The purpose of "age of consent" statues is presumably to prevent the exploitation of children who are not yet mature enough to make wise decisions or who do not understand the implications and consequences of sex. (Of course, one could apply that same reasoning to many other potentially-corrupting activities -- attending church or synagogue, for example. Yet nobody argues we should shield children from religion until they reach 18 and are thus old enough to understand the implications and consequences of religious practice.) Another justification for age-of-consent laws is that the sort of adults who prey upon young children sexually are also likely to harm them in other ways, including violently -- to cover up their deeds, if for no other reason. These concerns for the safety and welfare of minors justify legal regulation, but only up to a point. A college freshman who asks a high school junior on a date poses little threat to the commonweal -- even if that date ends in bed. Statutes criminalizing such behavior are far more likely to harm teenagers than to help them -- whether by denying them access to necessary information, deterring them from sharing their experiences with teachers and counselors for fear that they or their partners will be reported to authorities, or driving them to have sex in parked cars and dark alleys rather than safe, warm bedrooms. In fact, in many states the responsible and sexuality-aware parent who creates a safe environment for a teenager to explore his or her sexuality with peers can face prosecution and even loss of custody for contributing to the corruption of a minor.

The Christian right and its political allies have similarly co-opted efforts to crack down on child pornography as part of their drive to suppress teenage sexuality. Child pornography statues, which were initially designed to prevent predators from exploiting children, are now increasingly being used to prosecute or intimidate teenagers who receive sexually explicit photos of their boyfriends or girlfriends. Some of these teens have even been charged under child pornography statues themselves -- including a 17-year-old Ohio girl who was prosecuted for "sexting" her own partially-clad photograph to an ex-boyfriend who was over 18. The problem is not with these teenagers. The problem is with the statutes. While sexual images of 16- and 17 year olds may of course be used inappropriately -- as may those of adults, for that matter -- the individuals who should be punished are those offenders who misuse these images, not the teenagers who take them or the romantic partners who savor them. Exploitation is wrong. Neither sex nor nudity are inherently wrong or inherently exploitative. Alas, we appear to have forgotten how to tell the difference.

The media all too often focuses on cases where sexual relations are non-consensual (such as Roman Polanski's encounter with Samantha Geimer) or where authority figures, such as teachers and coaches, seduced young charges in their care. But many teenagers are prosecuted for consensual encounters with their peers or partners only a few years younger than themselves. Some of these cases prove truly Kafkaesque. In Florida, for example, a 15-year-old girl recently had consensual sex with four 17-year-old football players -- and then, by her own admission, allegedly fabricated rape charges against them. The boys, who are the actual victims in this case, now await trial on charges of "lewd and lascivious battery of a minor," a serious felony. In Georgia, the widely-publicized tragedy of 17-year-old Genarlow Wilson -- sentenced to 10 years in prison for consensual oral sex with a 15-year-old girl -- nearly ruined the life of a promising young man without in any way protecting the welfare of other teens. These are merely the tip of the forensic iceberg. On a regular basis, morally blameless young adults are prosecuted, forced to register as sex offenders, and even deported for consensual sex-acts with 16- and 17-year olds that would be legal in Canada and often in neighboring states. What is a loving relationship in Newark or Las Vegas is the worst of all crimes in New York City and Los Angeles.

Teenagers are smart. They understand that sex can be pleasurable and that it can enhance the intimacy of their relationships. Telling them otherwise -- by insisting, for example, that "sex is for adults only" -- defies their lived reality. We should instead be emphasizing safe sex practices, open communication, and gender equality. We should not tolerate, for example, any double standard that winks at teenage boys for having multiple partners but disparages girls who do so. We should take a warning from the old joke: What do you call teenagers who receive abstinence-only sex education? Anwers: Mothers and fathers. I look forward to the day when those adults who preach an anti-sex philosophy to teenagers become as unpopular as the teens who embrace it.

That is not to say that some teenagers won't choose to remain celibate. I cannot imagine why they would, by I respect their right to do so. However, those 16- and 17-year-olds who want to indulge in one of life's great pleasures should not have to worry about the long arm of the law coming after them or their partners. Even more important, our society needs an open debate on this question. For far too long, those progressive voices who would bring common sense to the issues of teenage sexuality have been afraid to speak out for fear of being branded sympathetic to pedophiles and sex predators. The reality is that a reasonably lower age of consent, and a frank national discussion of adolescent sexuality, would serve the interests of the very minors that current laws are supposedly trying to protect. Pro-sex is Pro-safety. Conservative parents are certainly entitled to encourage their teenage daughters to keep their legs crossed, much as they may tell their sons that masturbation causes blindness. What they do not have have a right to do is to lock the rest of our society in a chastity belt by fighting a war on sexuality under the specious guise of protecting teens from themselves.