The Mysterious Age of Consent in Establishing Who Is an Adult

Kevin Noble Maillard is a professor of law at Syracuse University and the co-editor of "Loving v. Virginia in a Post-Racial World: Rethinking Race, Sex and Marriage." He is on Twitter.

Updated June 12, 2012, 6:47 PM

The age of consent is a strange way to measure adulthood. Setting a definite minimum age for teenagers to engage in sexual activity is like a hopeless game of Battleship: sometimes the target is found, but many other times, it’s just a shot into space. Why? There is no uniformity or standard application of law. The age of consent differs from state to state. Many state laws would make high school dating — and the backseat antics that accompany it — a crime. And many physical acts that are the reliable loopholes of "abstainers" and new acquaintances are considered sex.

It would be nice if distinguishing between sexual maturity and vestal youth were measured by more than birthdays.

This does not mean that statutory rape laws serve no purpose. Quite the opposite. A May/December romance between an octogenarian and a young teenager is a little too "Harold and Maude" for most personal tastes and legal allowances. Indeed, the age of consent serves a protective function in deterring adults from exploitation while protecting future victims.

But many times, the law backfires. Distinguishing between sexual maturity and vestal youth should be measured by more than birthdays. If a state sets a strict age of consent at 16, it would be a crime for a high school junior to have sex with a sophomore. Ask Genarlow Wilson, who was sentenced to 10 years for receiving oral sex from an underage girl. He was 17; she was 15. Under Georgia state law, it didn’t matter if Wilson were 17 or 57: the court found him guilty of child molestation. (After serving two years in prison, he was released.)

Many states have close-in-age-exceptions that would prevent unjust cases like Wilson’s. They differ by jurisdiction. Some states may allow a two-year window of consent, others may permit a five-year spread. Again, there is no uniformity. It doesn’t make sense that a trip around the Beltway can make a girl into a woman, or that a drive across the George Washington Bridge turns a man back into a boy.

Yes, we have a federal system, but there is no federal common law for the age of consent. At the same time, there has to be some system to protect children and punish adults, and age is the easiest referent for maturity. But it still doesn’t solve the problem of widespread disagreement between the states about adulthood when it comes to sex. Perhaps there is no other way than age to measure consent, but when the system categorically turns teen peers into teen predators, no one wins.