Last night, 20/20 had an article about a couple, now apparently in their 20’s, who became sexually active prior to marriage, when the husband, Frank Rodriguez, was 19 and his wife, Niki, was 15. The sex was completely consensual, but due to the age difference, he was arrested and charged, presumably under Texas’s “indecency with a child” law, which currently prohibits consensual sex with anyone under 17, unless there is only a 3-year age difference –or they are married. After serving 7 years probation, and having to move out of his family’s home because he could no longer be around his 12-year-old sister or any other child, Mr. Rodriguez eventually married his “victim”, after she turned 17, and they now have several children together. He will have to be registered as a sex-offender for life, which means he is legally lumped together with pedophiles and rapists, forever. I also sensed from the 20-20 article that there might have been a racist, “selective enforcement”, aspect to this prosecution on the part of the police and prosecutors of this small Texas town. Mr. Rodriguez is Hispanic and his wife is white. Proving that the police and prosecutors were motivated by racism would be difficult, but we all know that there are plenty of white people in these small bible-belt towns who don’t like the thought of “race-mixing”, and will use whatever legal means at their disposal to send a message to minorities in their jurisdiction.
Clearly the system broke down in this case. In fact, I think this example points to a question as old as human civilization. This question is something like: What is more important; rules and statutes, or justice for the individual? I think that most intellectually honest people would think that Mr. Rodriguez is being treated unfairly, although a small minority of people might disagree with me. A Republican, “the rules are the rules type-person”, such as the Texas state legislator interviewed in the TV article, will simply shrug regarding any unfairness, and say something obtuse like “we are a nation of laws, and he broke the law”. (Fortunately John Stossel asked the obvious question -Is this a good law?) A more honest advocate of the current legal regime will probably say that it is better to let a few people like Mr. Rodriguez be treated too harshly than to let a real pedophile harm a child, or a real rapist commit more crimes.
Another (honest) argument in favor of the current regime is that it’s a question of “line-drawing”. I agree that children are not intellectually and emotionally mature enough to consent to sex with an adult, and that an adult has an inherent power advantage over a child that makes all sexual contact with a child rape, regardless of any alleged “consent”. If it is acknowledged that this is the case, the question then becomes: Where to draw the line on the age of consent? The problem with any age of consent law is that there will be exceptions, because different people mature, both mentally and physically, faster than others. This appears to have been the case with regard to the couple in the 20-20 article. The issue of mental and emotional maturity also works in the other direction. We’ve all met plenty of 17-year-olds having sex who were clearly not ready for it, and quickly get into trouble. I’ve also met 30-year-old people, who had fully functional brains, who really weren’t mentally mature enough to handle sex, and also got themselves into trouble. I am not certain at this point what reforms of the current legal regime are necessary to deal with this problem, if any. Different states and nations can have very different laws on this subject. Even in Texas, the “indecency with a child” statute has an exception if the (legal) adult and (legal) child are married. In other words, if a 19-year-old has sex with his 15-year-old wife, it is legal, but not if they get a divorce. (It would appear that in Texas a minor could theoretically petition a court to marry even if he is under 16, and, I would assume, that a person legally married in another state or nation who is under 16 would be recognized as married by the state of Texas, so this is at least possible under Texas law.) The more fundamental question to ask about any law is: what is the purpose of the law in general? If the purpose of law is to protect individual rights, then the law must judge individuals, and their specific situations. I regard the protection of individual rights to life, liberty, and property as the one and only purpose of all rules, statutes, and regulations that the legislature passes. The courts are there to interpret those laws, and ensure that they are applied fairly in individual circumstances. Legislative statutes are there to provide clear guidance on what individual citizens can and cannot do. Basically, by following the letter of the statutes, an individual should be able to avoid any possibility of being prosecuted for violating individual rights. This doesn’t mean that the opposite is necessarily true. Just because a person violates the technical wording of a statute doesn’t mean he has violated individual rights. Statutes should be regarded as sort of “prophylactic”, in the sense that so long as you obey them, you are guaranteed that you will not be prosecuted. The statutes are there to provide clear guidance to the individual, but, in addition to the statutes, there must be a mechanism for ensuring that even when the wording of a statute is violated, that there was, in fact, a violation of individual rights. (This is commonly referred to as the “spirit of the law”, which is the protection of individual rights.) This mechanism for ensuring a technical violation of a statute is a violation of individual rights is the judicial process. The courts, as a separate but equal branch of government, must ensure that even if there is a technical violation of the letter of a statute, that there was, in fact, a violation of individual rights in the particular circumstance. This probably means that in the case of “age of consent” laws, the courts should be free to look at the facts and circumstances of a particular case, and determine if the individual defendant actually violated rights to life, liberty, or property. In the case of the Rodriguez’s, the courts should have been free to look at the facts and circumstances of the case, and determine if the alleged “victim” in this case was, despite her age, mentally and physically mature enough to have consented to sex with her future husband. I think that if a court had recognized the “spirit of the law” in that case, and not just the “letter of the law”, the result would have been quite different.