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When The New Yorker published a profile of the lawyer and academic Alan Dershowitz, it likely did not intend to spark a spirited debate about the age of consent. But when a stray comment about an op-ed Dershowitz penned in the nineties advocating for a reduced age of consent led to that op-ed surfacing on Twitter, Dershowitz felt compelled to speak up in his defense — a decision which, unsurprisingly, led to some heavy backlash.

I stand by the constitutional (not moral) argument I offered in my controversial oped: if a 16 year old has the constitutional right to have an abortion without state or parental interference, how could she not have the constitutional right to engage in consensual sex? 1/ https://t.co/48Thb8Uaym — Alan Dershowitz (@AlanDersh) July 29, 2019

I challenge my readers to distinguish the cases, as a matter of constitutional law. I did not suggest that it is moral to have sex with a 16 year old, but rather that the issue presents a constitutional conundrum worthy of discussion. 2/ — Alan Dershowitz (@AlanDersh) July 29, 2019

Yet the knee-jerk response to Dershowitz’s op-ed is one we should take a moment to think more deeply about. Granted, Dershowitz is hardly a supporter of sexual freedom, and his argument in favor of lowering the age of consent — which seems primarily concerned with the plight of men who might wind up in jail for the crime of lusting after a young teen — is shaky at best. But while his motivation may be suspect, it’s worth asking whether consent laws are actually the best way to protect young people from abuse and exploitation.

Age of consent laws are flawed. At best, they’re a somewhat effective strategy to protect young people from abuse and exploitation, one that mistakenly conflates a legal age of majority with a universal milestone of emotional maturity. At worst, they’re a weapon wielded by a punitive, sex-phobic system that polices young women’s sexuality and robs them of any sense of agency over their own bodies and desires.

When American purity reformers began advocating for an increased age of consent in the late 1800s, their argument hinged on the idea of women as sexless, innocent creatures seduced into vice by immoral men. One petition circulated by the Women’s Christian Temperance Union put this worldview in stark terms, framing their battle as one to ensure that “the age at which a girl can legally consent to her own ruin be raised to at least eighteen years.”

It’s been over a century since those purity reformers pleaded their case, and many would argue that our ideas about sex, and the purpose of age of consent laws, have dramatically shifted in the interim. Rather than a way of safeguarding young women from “ruin,” we now speak of these laws as a way of protecting young people of all genders from relationships they’re not ready for. Where the age of consent was once intended to shield innocent, sexless women from male depravity, it’s now framed as a way to protect teens — whose burgeoning sexual desires often outpace the development of their emotional maturity and relationship skills — from their own urges (as well as those of predatory adults).

Yet even with our updated ideas of who, and what, the age of consent is for, it still manages to reinforce and replicate the hoary ideas that have been baked into the concept since its earliest days. Despite ostensibly being a gender-neutral concern, the age of consent is primarily discussed in terms of young women’s sexuality and vulnerability. When Senate candidate Roy Moore, of Alabama, faced scrutiny for propositioning 14-year-olds, it was women, not men, who rallied under the banner of the hashtag #MeAt14 to highlight their teenage innocence. It is still teenage girls, not boys, who are positioned as objects in need of safeguarding — rather than young adults clumsily attempting to navigate the confusing adult world of sex, pleasure, and relationships.

Troublingly, this refusal to see young women as complex individuals with sexual agency continues once they’ve reached the age of consent. If younger teens are seen as off-limits, once someone has reached the age of 18 (or, in many states, 17 or 16) it’s presumed that anything goes, as though a switch is magically flipped in our brains the second we reach that milestone. The Olsen Twins Countdown Clock — an artifact of the early aughts internet that ticked down the days until the former child stars were “legal” — offered a concrete example of that mindset. Prior to their 18th birthday, the twins were “jailbait” too innocent to lust after; immediately after, they were suddenly adults whose bodies could be ogled without shame.

Missing from this framework is, of course, the actual emotional experiences and desires of young people ourselves. As many former teenagers can attest, our sexual development rarely follows so predictable a pattern. While some of us are prepared for the complexities of adult sex and relationships by our 18th birthdays, many of us require many more years to reach that level of maturity, with some 21-year-olds lagging behind 16-year-olds when it comes to an ability to advocate for oneself within a sexual and romantic relationship.

But the binary nature of the age of consent does not allow for so nuanced a discussion. Rather than considering the rich patchwork of factors that might affect our partner’s ability to enter a relationship on an equal playing field — our respective levels of emotional maturity, our sexual histories, the various degrees of privilege and power our identities afford us — many of us prefer to end our internal inquiry at the question of “Legal or not?,” acting as though it is the external judgment of the law, rather than the nuances of our interactions with a partner, that truly determine a relationship’s health.

And for young people who act on sexual urges prior to the age at which they’re legally presumed able, these laws can have severely negative impacts. In addition to criminalizing teens who have sex with other teens, or labeling a 16-year-old who takes a naked selfie as a child pornographer, age of consent laws can cause harm to young people who find themselves in sexual relationships with adults. Rather than protecting vulnerable young people from exploitation, these laws can discourage them from coming forward about their relationships, and isolate them from potential support systems capable of protecting them from abuse.

Wendy Ortiz, whose memoir, Excavation, chronicles the relationship she had with her English teacher as a teenager, is intimately familiar with this unintended effect of statutory-rape laws. When she sought out a therapist, she tells me, “she laid out the limits of confidentiality,” limits that included mandatory reporting of child abuse. “Internally I thought, ‘Nope, I won’t be telling her, or returning,’” Ortiz tells me. “I wasn’t ready for the relationship to end” — or, for that matter, for the man she believed she loved to face harsh legal consequences for their relationship.

A 15-year-old who genuinely believes she’s in love with an adult isn’t likely to be deterred from sex because the law says she can’t consent. If anything, she’ll assume that the law has misjudged her own maturity and the authenticity of her relationship. As a result, she’ll be more motivated to keep the relationship a secret — a decision that can only aid in furthering her abuse and exploitation.

None of this is to say, however, that the world that Alan Dershowitz envisions, in which a 50-year-old man can pursue a 16-year-old without fear of consequence or reprisal, is one we should be striving to attain. But instead of assuming that the age of consent is the only, and best, way of achieving our goal of enabling young people to mature into sexually healthy adults, perhaps we could envision some alternatives.

What if we created a society that placed a priority on sex education, that raised young people to understand their sexual desires and curiosities as healthy — and encouraged them to explore them in safe, age-appropriate ways? What if we recognized young people as the confused, fumbling proto-adults that they are, rather than fetishizing them as “innocent” or preternaturally skilled? What if we encouraged each other to value relationships between equals, to truly prioritize authentic consent — as opposed to merely treating consent as a checkbox that can be ticked off once someone reaches a certain age? That might provide a pathway to a different understanding of youth sexuality, consent, and relationships. And it might give us a way to protect the most vulnerable among us without robbing them of their agency, their individuality, and their ability to seek support when they find themselves in potentially abusive situations.

Granted, some might argue that this sort of strategy is naive and ill-equipped to handle the worst sorts of predators: the men like Jeffrey Epstein who use their money and power to habitually prey on the most vulnerable victims they can find. And yet here, strangely, Dershowitz’s op-ed offers a moment of real insight. “If the sex was not consensual — as it often is not between older men and young girls — it is ordinary rape rather than statutory rape,” he writes.

Even without laws on age of consent, we already have the mechanisms to protect the victims of abuse and violence, whatever age they may be. We just need to employ them.

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