Crimes of Passion
This is a chapter about consensual teen/adult relationships. The chapter opens with the story of Heather Kowalski and Dylan Healy, a thirteen-year-old girl and twenty-one-year-old man, who met online and fell in love. There’s also some history and research concerning consent and age-of-consent laws, and how ineffective those laws are at actually protecting teenagers from harm.
Age-of-consent law, which dates to the late-thirteenth-century British Statutes of Westminster, endeavors to bring safety … by drawing a bright line between childhood and adulthood, and then by criminalizing, in statutory rape, an adult’s trespass over it. The law conceives of the younger partner as categorically incompetent to say either yes or no to sex. Because she is by definition powerless both personally and legally to resist or to voluntarily relinquish her “virtue,” the state, which sees its interest in guarding that virtue, resists for her.
While we now presume such laws are based on the principle that minors have a differential right to protection, originally the protected object was not the child herself but her virginity, which was the property of her father. The victim was always female, and as late as 1981, the Supreme Court upheld the constitutionality of criminalizing sex with a female minor but not a male minor. The justices noted the greater risk of sex to a girl because of pregnancy but not the greater discrimination against a girl in assuming she never wanted sex.6 A few years ago state statutes began to include boys as possible victims of statutory rape. But partly because it is so common for young women to have sex with men who are older than they by at least three years, and partly because statutory rape proceedings are often precipitated by a pregnancy, the vast majority of such cases still involve a male adult and a female minor. These are followed in number by male adults in consensual homosexual liaisons with male youths, who might be considered feminized in the eyes of the culture.
The law echoes an enduring sexist idea—that in sexual relations there is only one desiring partner, the man … In all, one person is guilty and the other innocent. Age, especially when partners are close in age, often serves as a stand-in for other assumptions about gender. The man is allowed to desire, but he is also suspected of being sexually predatory by masculine nature, and thus morally indictable. That he’s older makes him legally indictable.
Of course, young women do get raped: almost all rape victims are female, and more than half of the nations rape victims are under eighteen, according to the Justice Department. The younger a girl and the wider the age difference between her and her older male sex partner, moreover, the likelier she is to feel coerced into having intercourse, at least the first time.9
But statutory rape is not about sex the victim says she did not want. It is about sex she did want but which adults believe she only thought she wanted because she wasn’t old enough to know she did not want it. Still, teen girls persist in expressing their own desires. “If he’s guilty, I’m guilty,” one sixteen-year-old El Paso girl told me she had informed her parents when they threatened to report her twenty-year-old boyfriend to the police. Because a successful prosecution needs a victim willing to testify against her lover, and few teens are, many prosecutors admit that the oxymoronic concept of consensual rape makes such cases hard to prosecute or win.
The story of Dylan and Heather fit precisely the cultural codes written into law and also the contradictions held therein. There was no doubt that Dylan committed a crime as an adult, but he acted like an adolescent: hungry, impetuous, irresponsible, desperate. Heather, in the eighth grade at the time, behaved just like a truculent young teen: she disobeyed her parents, cut school, and ran away. Yet with Dylan she collaborated in breaking the law. And she did what adults do: have sex.
Beyond this, and beyond his record and her family’s descriptions, the media had little to no information about either Dylan or Heather. His family avoided the press, and her family revealed knowing virtually nothing about him. Absent facts, the media retold the melodrama, “Girl Lured Off the Internet,” with the help of Heather’s family. The police narrated a thriller, with good guys and bad guys and violence looming around every corner.
To her elders, Heather’s desire was a mistake, a misapprehension, and so was the love she told her friends she felt for Dylan. “I don’t think a thirteen-year-old knows about love,” said Pauline. “I think she’s infatuated with him and is happy about the attention.” Povich describes Heather, along with a fourteen-year-old missing since Christmas with a twenty-two-year-old AWOL air force man, as “two children . . . manipulated and lured away from home by older men on the internet.”
Of course, parents have a responsibility to guide their offspring toward safe relationships and away from unsafe ones, if they can, which for many means dissuading or forbidding them from romantic involvement with people who are much older than they. But families are different. One woman, now the mother of a teenager, told me she had a four-year relationship, starting at age sixteen, with a man a decade her senior. Her mother “went crazy” when she found out but eventually grew to love the boyfriend and welcome him into the family. Alternatively, parental care and counsel may be utterly absent at home, and that in itself may drive a girl into the arms of an older man, who may take on a quasi-parental role in her life.
In 1995, a California sociologist uncovered the datum that at least half the babies of unmarried teen mothers were fathered by men over twenty.15 Suddenly everyone from the left-feminist columnist Katha Pollitt to the archconservative Family Research Council was crying rape. The American Bar Association convened a special committee to propose legal responses to the newfound problem. Both political parties vowed to attack this species of “child abuse” in their 1996 presidential campaign platforms, and the welfare “reform” law signed by President Clinton at the end of his first term urged that “states and local jurisdictions aggressively enforce statutory rape laws,” required states’ welfare plans to develop educational programs for law enforcers, counselors, and educators on “the problem of statutory rape,” and directed the U.S. attorney general to study the link between statutory rape and teen pregnancy, with a focus on “predatory older men.”16 California governor Pete Wilson committed eight million dollars of a fifty-two-million-dollar teen-pregnancy-prevention campaign to invigorate statutory rape prosecutions with the goal of reducing the welfare rolls;17 Texas, Florida, Georgia, Maryland, and a number of other states followed suit.18 In 1996, Gem County, Idaho, prosecuting attorney Douglas R. Varier went one step further: he criminalized all teen sex that resulted in pregnancy. Exhuming a 1921 law against fornication, or sex between unmarried persons, he charged a group of pregnant teens and their boyfriends.
The California data on adult fathers and teen mothers were subsequently challenged by demographic experts, who said the publicized numbers were too high,19 that the policy discussion vastly oversimplified, indeed misrepresented, the causes of childbirth among minor-aged women,20 and the new initiatives had no demonstrable effect of deterring either sex or childbird.21 Asked by the American Bar Association, for instance, only one in five lawyers said they thought “holding males accountable [for relations with minors] through prosecution and child support enforcement is an appropriate response to teen pregnancy.22
The laws forced people on the ground to make perverse choices among untenable options. In Orange County, California, after Governor Wilson’s program went into effect, state social service agency workers surreptitiously arranged marriages between their pregnant clients, some as young as thirteen, and the adult fathers of their babies, in order to prevent prosecution that would break up intact relationships.23 And among their intended beneficiaries, such laws met with near universal scorn. “Let’s say [the guy] goes to jail,” a teen mother in San Jose patiently explained to a reporter. “She’s not going to get any support. She’s going to end up on welfare.”24 Queried about the antifornication crusade, Gem County high school kids called it preposterously intrusive, not to mention futile in preventing future pregnancies. The students, half of whom had already had sex, proposed a less punitive strategy for ameliorating the pregnancy problem: in one survey 79 percent said they wanted better sex education.25
Do statutory rape prosecutions have any constructive effect on the “perpetrator,” the “victim,” or her family? Historically, “as their traditional forms of [familial, religious, and community] sexual regulation eroded, numerous parents—immigrant and native-born, black and white—sought court intervention to restrain their rebellious daughters,” wrote historian Mary Odem, who studied cases that transpired in California in the 1880s and the 1920s.26 But the court officials did not chase down the white slavers who parents believed had run off with their daughters; they did not issue back-stiffening judicial reprimands like “Listen to your mama and stay out of the dance halls.” Instead, especially after the turn of the century, the stereotype of the sexual girl as a victim was transformed into one of deviant or delinquent. The courts increasingly charged the girls with “precocious sexuality” (having sex or appearing to want to) and dispatched them to reform school, leaving families bereft of their daughters’ much-needed earnings and household help.27
Whereas misbehaving boys found themselves in court for the same transgressions as adult men might commit—say, theft or assault—girls were punished far more harshly than boys and for lesser, victimless infractions, especially for the crime of “precocious sexuality.”28 This “sexualization of female deviance” has persisted into our time, wrote criminologist Meda Chesney-Lind. By the 1960s, three-quarters of all arrested girls were charged with criminal misconduct,29 tracked into the system as PINS, or “persons in need of supervision,” or labeled incorrigible, terms that called up images of sentinels at the bedroom window, guarding the irredeemable. At the end of the twentieth century, a girl like Heather was viewed as both victimized and incorrigible. She was both a nineteenth-century-like fallen woman in need of moral resurrection and a modern slut who should have known better. For such girls in an era of “tough love,” punishment is protective reeducation.
Legal solutions neither offer emotional satisfaction (which shouldn’t be the role of the law anyway) nor fix a bad situation. At the beginning of the twentieth century, “age-of-consent law and the juvenile court system merely perpetuated the stigma and supported the punishment of working-class females who engaged in unorthodox sexual behavior,” wrote Odem.31 At the end of the century, this is still true, the the additional fillip that the laws punish the unorthodox behavior of boys as well, if they are gay. But the law also perpetuates a stigma on behavior that is not particularly unorthodox—the “intergenerational” relationship. In fact, the coupling of a taller, richer, stronger older man with the smaller, younger, less experienced woman is not only the romantic ideal, it is the norm. Research from the 1970s on has consistently found that whatever the law, a majority of girls lose their virginity to someone older than they.32 At this writing, that means a tenth to a quarter of young women’s chosen lovers are criminals.
Most important, as Lynn Phillips pointed out, such laws do nothing to address the needs for love and guidance, economic autonomy, respect, social status, or sexual agency that lead some girls into such liaisons, nor do they redress the age and gender inequalities that prevent those girls from negotiating equally with their partners over safe sex, pregnancy, or money and that render them vulnerable to domestic violence and abandonment.
Dylan was incarcerated at Ray Brook Federal Correctional Institution, a medium-security prison in the Adirondack Mountains of upstate New York, to serve the first five and third years of his sentence. His “roommate,” who had shot a man, was doing less time and had a lower security-risk classification than Dylan. When I visited him, it was clear that Dylan still loved Heather beyond reason. The usually reticent young man talked for four hours straight, mostly about her … His mother told me his reading was limited mostly to self-help literature. But when I queried him about books he liked, he told me his all time favorite was Emily Brontë’s Wuthering Heights, which he’d read twice. “She starts getting delirious, she’s so in love with him,” … Dylan seemed to drift during our conversation from anchor-dragging depression (he told me he had been on suicide watch) to unmoored dreaminess. He explained his plan: to find another lawyer, get the prohibition lifted on his communication with Heather, and have his sentence reduced. When he got out she would be of age, and they would get married.
While Dylan was behind bars, Heather returned to high school … Asked by the court what “may be different at school, in the neighborhood, or with your friends because of what has happened to you,” Heather seemed to interpret what happened to her as what the press and her parents did, not what happened with Dylan. Nothing was different between him and her, she wrote. As for others, “some people treat me nice, & some just call me a slut. But mostly everyone just stares as I walk down the street.”
But the demonization of Dylan Healy seemed not to have normalized much of anything for the Kowalski family. “Things have changed for the rest of my family though,” Heather wrote in the statement. “They think that Dylan tried to take me away and use me for sex. So now they are much more watchful of what I do, and my mom thinks she should make every decision for me.” Every parent must balance permission with supervision–and perhaps Heather did need more supervision than she’d been getting. But Pauline’s watchfulness seemed only to turn her daughter more vehemently against her. Rob contended in divorce filings that Heather wanted to live with him; Dylan said the same.
Many psychologists believe that adults’ reactions even to certifiable sexual abuse can exacerbate the situation for the child, both in the short and in the long-term. “There is often as much harm done to the child by the system’s handling of the case as the trauma associated with the abuse,” the National Center on Child Abuse and Neglect reported in 1978.35 But the system’s handling did not appreciably improve in the next two decades, especially as criminal proceedings increased against adults in adult-minor liaisons. When the youngster has had what she considers a relationship of love and consensual sex, it does no good to tell her she has been manipulated and victimized. “To send out the message that you’ve been ruined for life and this person was vile and they were pretending to care–that often does a lot of damage,” commented Fred Berlin, a psychiatrist at John Hopkins University and a well respected expert on treating sex offenders.36
How can harm be prevented rather than inflicted on youngsters? How can we even know what is harmful, so that we may be guided in guiding them toward happy and safe sexual relations?
The first answer is simple, said University of Georgia social work professor Allie Kilpatrick: Ask them. Have them describe their experiences, without prelabeling them as abuse. In 1992, Kilpatrick published the results of a study based on a thirty-three-page questionnaire about childhood sexual experiences, administered to 501 women from a variety of class, racial, and educational backgrounds. Instead of employing the morally and emotionally frightened phrase sexual abuse, she asked specific questions: How old were you, how often, with whom did you have sex? Did you initiate or did the other person? What acts did you engage in (“kiss and hug,” “you show genitals,” “oral sex by you,” etc.)? Was it pleasurable, voluntary, coerced? How did you feel later?37
Kilpatrick found that 55 percent of her respondents had had some kind of sex as children (between birth and age fourteen) and 83 percent as adolescents (age fifteen to seventeen), the vast majority of it with boys and men who were not related to them. Of these, 17 percent felt the sex was abusive, and 28 percent said it was harmful. But “the majority of young people who experience some sort of sexual behavior find it pleasurable. They initiated it and didn’t feel much guilt or any harmful consequences,” she told me. What about age? “My research showed that difference in age made no difference” in the women’s memories of feelings during their childhood sexual experiences or in their lasting effects.
Teens often seek out sex with older people, and they do so for understandable reasons: an older person makes them feel sexy and grown up, protected and special; often the sex is better than it would be with a peer who has as little skill as they do. For some teens, a romance with an older person can feel more like salvation than victimization. Wrote Ryan, a teenager who had run away from home to live in a Minnesota commune with his adult lover, “John was the first person in my life who let me be who I wanted to be. . . . Without John I would have been dead because I would have killed myself.”39 Indeed, it is not uncommon for the child “victim” to consider his or her “abuser” a best friend, a fact that has led to some dicey diagnostic and criminal locutions. William Prendegast, a former prison psychologist and current frequent-flyer “expert” on child abuse, for instance, talks about “consensual rape” and young people’s “pseudo-positive” sexual experiences with adults.40
Of course, there are gender differences in the experiences of early sex … Boys are used to thinking of themselves as desirers and initiators of sex … So among boys, “self-reported negative effects” of sex in childhood are “uncommon,” according to psychologists Bruce Rind and Philip Tromovitch’s metanalysis of national samples of people who have such experiences.41 Girls and women, on the other hand, are far more often the victims of incest and rape than boys are, and gender compounds whatever age-related power imbalances and intergenerational liaison may contain. Philips found that girls spoke of entering such partnerships willingly and often rationally and of satisfaction with the adult status they borrowed there. Yet they also often “let their guard down with older guys,” agreeing not to use a condom, to drop out of school, or cut off ties with friends and families who could have helped them after the relationship was over. Her older informants offered another vantage point from which to view such relationships, often speaking disparagingly of their past older lovers and regretfully of their choices. Philips pointed out that such bad behavior and twenty-twenty hindsight aren’t exclusive to older-younger relationships. A younger lover might have been just as unfaithful and just as likely to leave a young woman with a baby and no help.
The subjects of Sharon Thompson’s Going All the Way represented such love affairs in far more positive ways. Just over 10 percent of the four hundred teenage girls she interviewed through the 1980s “told about actively choosing sexual experiences with men or women five or more years older than they.” These girls “had no doubt that they could differentiate between abuse, coercion, and consent.” They represented themselves as the aggressors, persisters, and abandoners in these relationships, adept at flipping between adult sophistication and childlike flightiness to suit their moods or romantic goals.43
Which story is true—freely chosen love or sweet-talked dupery? Both, said Thompson wisely when I asked her. Philips seemed to agree. “Rather than presuming adult-teen relationships are really a form of victimization or that they really represent unproblematic, consensual partnerships—rather than maintaining either that willingness means consent or that an age difference means an inherent inability to consent—we need to step back and probe the nuances of adult-teen relationships from the perspectives of young women who participate in them,” Philips wrote. If we are going to educate young women to avoid potentially exploitative relationships, “those strategies must speak to [their] lived realities and the cultural and personal values that they, their families, and their communities hold regarding this issue.”45
Irrationally, as the age of sexual initiation slowly drops, the age of consent is rising.49 And while “adult” sex becomes a crime for minors, it is only in the area of violent criminal activity that “children” are considered fully mature: in Chicago, in the late 1990s, an elven-year-old boy was tried for murder as an adult, and at this writing prosecutions of minors as adults are becoming almost common.
There is no distinct moment at which a person is ready to take on adult responsibilities, nor is it self-evident that only those who have reached the age of majority are mature enough to be granted adult privileges. People do not grow up at sixteen, eighteen, or twenty-one, if they ever do. A three-decade study of thirty thousand adolescents and adults concluded that, cognitively and emotionally, both groups operated at an average developmental age of sixteen.50
Legally designating a class of people categorically unable to consent to sexual relations is not the best way to protect children, particularly when “children” include everyone from birth to eighteen. Criminal law, which must draw unambiguous lines, is not the the proper place to adjudicate family conflicts over youngsters’ sexuality. If such laws are to exist, however, they must do what Philips suggests about sexual and romantic education: balance the subjective experience and the rights of young people against the responsibility and prerogative of adults to look after their best interests, to “know better.” A good model of reasonable legislation is Holland’s.
The Dutch parliament in 1990 made sexual intercourse for people between twelve and sixteen legal but let them employ a statutory consent age of sixteen if they felt they were being coerced or exploited. Parents can overule the wishes of a child under sixteen, but only if they make a convincing case to the Council for the Protection of Children that they are really acting in the child’s best interest. “Through this legislation, therefore, Dutch children of 12 to 16 years accrued conditional rights to consent to sexual behaviors, and parental authority was conditionally reduced,” wrote David T. Evans in Sexual Citizenship. “Simultaneously it was recognized that all under 16 remained open to, and thus had the right to protection from, exploitation and abuse. . . . Overall, the legal message here is that children over 12 are sexual and potentially self-determining, and they remain weaker than adults, and should be protected accordingly, but not under the autonomous authority of parents.51
6 – Micheal M. v. Superior Court of Sonoma County, 450 U.S. 464 (1981).
9 – Kristen Anderson Moore, Anne K. Driscoll, and Laura Duberstein Lindberg, A Statistical Portrait of Adolescent Sex, Contraception, and Childbearing, pamphlet (Washington D.C.: National Campaign to Prevent Teen Pregnancy, 1998), 11, 13.
15 – Mike. A. Males, Scapegoat Generation: America’s War on Adolescents (Monroe, Me.: Common Courage Press, 1996), 45-76.
16 – Patricia Donovan, “Can Statutory Rape Laws Be Effective in Preventing Adolescent Pregancy?” Family Planning Perspectives (January/February 1997).
17 – Elizabeth Gleick, “Putting the Jail in Jailbait,” Time, January 29, 1996, 33.
18 – Mireya Navarro, “Teen-Age Mothers Viewed as Abused Prey of Older Men,” New York Times, May 19, 1996.
19 – Lynn M. Philips, “Recasting Consent: Agency and Victimization in Adult-Teen Relationships,” New Versions of Victims: Feminists Struggle with the Concept, ed. (New York: New York University Press, 1999), 84.
20 – Donovan, “Can Statutory Rape Laws Be Effective?”; “Issues in Brief: The Welfare Reform, Marraige, and Sexual Behavior,” Alan Guttmacher Institute report, 2000; Kristin Luker, Dubious Conceptions: The Politics of Teenage Pregnancy (Cambridge, Mass.: Harvard University Press, 1996).
21 – Teen pregnancy has reached its lowest levels since the 1970s but this change is attributed to contraceptives used by teenage women, not legislation against adult-teen sex. Ayesha Rook, “Teen Pregnancy Down to 1970s Levels,” Youth Today, November 1988, 7.
22 – Elstein and Davis, “Sexual Relations between Adult Males and Young Teen Girls,” 11.
23 – Matt Lait, “Orange County Teen Wedding Policy Raises Stir,” Los Angeles Times, Orange County Edition, September 2, 1996, A1; Laura Duberstein Lindberg et al., “Age Differences between Minors Who Give Birth and Their Adult Partners,” Family Planning Perspectives 20 (March/April 1997): 20.
24 – Brandon Bailey, “Teen Moms Question Governor’s Proposal,” San Jose Mercury News, January 14, 1996, 1B.
25 – James Brooke, “An Old Law Chastises Pregnant Teen-Agers,” New York Times, October 28, 1996, A10.
26 – Mary E. Odem, Delinquent Daughters: Protecting and Policing Adolescent Female Sexuality in the United States, 1885-1920 (Chapel Hill: University of North Carolina Press, 1995), 5.
27 – Odem, Delinquent Daughters, 178.
28 – Steven Schlossman and Stephanie Wallach, “The Crime of Precocious Sexuality: Female Juvenile Delinquency in the Progressive Era,” Harvard Educational Review 48 (1978): 65-95.
29 – Luker, Dubious Conceptions, 30, 212.
31 – Odem, Delinquent Daughters, 188.
32 – Moore, Driscoll, and Lindberg, “A Statistical Portrait of Adolescent Sex,” 13; Sharon Thompson, Going All the Way (New York: Hill and Wang, 1995), 217, 322.
35 – National Center on Child Abuse and Neglect, Federal Register, part 2 (Washington, D.C.: U.S. Department of Health and Human Services, January 23, 1978), 3244.
36 – Frank Bruni, “In an Age of Consent, Defining Abuse by Adults,” New York Times, November 9, 1997, “Week in Review,” 3.
37 – Allie C. Kilpatrick, Long-Range Effects of Child and Adolescent Sexual Experiences: Myths, Mores, Menaces (Hillsdale, N. J.: Lawrence Erlbaum Associates, 1992).
39 – Letter, NAMBLA Bulletin, June 1994.
40 – William E. Prendegast, Sexual Abuse of Children and Adolescents (New York: Continuum Publishing Co., 1996), 26.
41 – Bruce Rind and Philip Tromovitch, “A Meta-analytic review of findings from national samples on Psychological Correlates of Child Sexual Abuse,” Journal of Sex Research (1997): 237-55.
43 – Thompson, Going All the Way, 215-44.
45 – Philips, “Recasting Consent,” 87.
49 – “The Geography of Desire,” Details, (June 1993); Elstein and Davis, “Sexual Relations between Adult Males and Young Teen Girls.”
50 – Males, Scapegoat Generation, 71.
51 – David T. Evans, Sexual Citizenship: The Material Construction of Sexualities (London: Routledge, 1993), 215.
Leave a Reply