Statutory Rape?

From: DF
Sent: Sat 12/24/2016 1:31 PM
To: [email protected]
Subject: question about children and libertarianism
Hi Dr. Block, After reading this article, I couldn’t help but think, “What would Walter Block say about this?” https://www.washingtonpost.com/news/morning-mix/wp/2016/11/21/texas-teacher-who-had-sex-almost-daily-with-13-year-old-student-could-face-decades-in-prison/?utm_term=.ca1e3555af97. In short, a 24 female teacher had sex – almost daily – with her 13 year old male student. This sexual relationship continued for nine months. The parents of the boy knew about the relationship and were, according to the article, supportive of it. The teacher was impregnated by the student, got an abortion, turned herself in, and is facing severe punishment. The child is also in foster care. You can read the attached article for details – and you can find more articles about this case on the internet. As a libertarian political philosopher and economist, how do you approach this situation? Should there be punishment? If not, why not? If so, for who, and to what degree, and in what form? Although the questions I have raised might require an entire book to thoroughly answer, I thought that a few of your thoughts on this might make an interesting LRC blog post or article. Merry Christmas! DF

Dear DF: This is the classic case of the continuum problem. I address this problem in general here: Block, Walter and William Barnett II. 2008. “Continuums” Journal Etica e Politica / Ethics & Politics, Vol. 1, pp. 151-166, June; http://www2.units.it/~etica/; http://www2.units.it/~etica/2008_1/BLOCKBARNETT.pdf
Let me now specifically address the challenge you raise.

We know, don’t ask how we know, but we do know, that if a 24 year old female engages in sex with a student of hers who is 5 years old, she is guilty of statutory rape (also, don’t ask me how this works out, what she does). On the other hand that if a 24 year old female engages in sex with a student of hers who is17 years old, she is not guilty of statutory rape. She may properly be fired, if the private school that employs has a not unreasonable rule against this. (Forget about public schools; they should not exist in the first place).

But what about your case of a 13 year old boy? The difficulty is that we cannot deduce the proper age cut off from the non-aggression principle (NAP) of libertarianism. To come to a definitive conclusion, which will necessarily have subjective elements in it, we must consult the culture, the common practices, the history of the community in which this series of acts take place.

Does it matter if we reverse the genders? Instead of a 24 year old female who engages in sex with a student of hers who is a 13 year old male, we discuss a 24 year old male who engages in sex with a student of his who is a 13 year old female. Although it is probably politically incorrect to say this, I am going to go out on a limb and say that yes it should matter. Girls of 13 can get pregnant; boy of that age cannot. Girls of 13 are far physically weaker than boys of that age. Thus, I infer that the statutory rape age, whatever it is, should be higher for an adult male who goes to bed with a young female, rather than the other way around.

When I was a college student in the late 1950s, all female students had a curfew; something like 10pm on weekdays, midnight on weekends. No male student had any such curfew. Of course, it can be argued that freshman girls were more mature than freshman boys. Certainly, no one could then or ever deny that senior girls were more mature than freshman boys. But that made no never-mind. Senior girls, not freshman boys, could get pregnant. And, the latter, on average, were way more physically stronger than the former. That was the justification for this “unequal” practice. I thought then and think now it was an eminently reasonable one. Males and females are not only distinct from each other, they are different too. I would hope and expect that any libertarian definition of statutory rape cut off ages would incorporate this incontrovertible biological fact.

One last point. I don’t think it entirely irrelevant that the parents of the 13 year old boy approved of this relationship. Is it child abuse on their part? This depends upon cut off age points, something, again, that the NAP alone cannot establish.

Thanks for running this fascinating challenge to libertarian theory past me.

The Best of Walter E. Block