Age of Consent
David S Chesler
For instance, Massachusetts. (I'm assuming that that which is
criminal is listed in the statutes, although they do use codewords
like "self abuse" and "crime against nature" -- how can we not do
it if we don't know it's illegal?)
I'm assuming that there is an age, below which, one is presumed
incapable of giving consent to have sexual intercourse, making
such an act non-consensual, and thus rape (commonly "statutory
rape".)
Massachusetts General Laws Chapter 265, section 23,
http://www.magnet.state.ma.us/legis/laws/mgl/265%2D23.htm ,
talks of "Whoever unlawfully has sexual intercourse or unnatural
sexual intercourse, and abuses a child under sixteen years of age"
[faces a punishment] so there's a big clue that if the child is
sixteen or over this statute does NOT apply, but the statute seems
to contemplate that there are lawful forms of sexual intercourse
or unnatural sexual intercourse involving children under sixteen
years of age.
Unnatural sexual intercourse isn't defined.
Age isn't defined (my life insurance provider uses a figure that
ticks over 6 months earlier than is common; some folks will talk
about chronological versus mental or developmental age.)
This seems to be a general failure of my fair state's ancient
laws, that so much is left unwritten. (I've yet to find the
definition of "Open and Gross Lewdness", either, just its
punishment. The police blotters make stuff up, or at least
call in case law, for such things as "Reckless driving my means
of high speed" or "Assault by means of a dangerous weapon, to wit a
shod foot".)
And in case my wife is reading, the context is that in sympathy
for a former teacher who is being persecuted for a thought crime
involving sex and boys, I would like to form an organization
advocating lowering the age of consent by a month, and before
I join it I'd like to know just how low I'm calling for it to go.
--
David Chesler (che...@post.harvard.edu, etc.)
http://www.geocities.com/Heartland/2955 (/riverbay/ for Co-op City - reorged!)
small government is beautiful -- http://www.carlahowell.org
Susan hofstader
"David S Chesler" <world!che...@uunet.uu.net> wrote in message
news:bfl0osk080vqsmifn...@news.supernews.com...
> How may one find in the statutes the Age of Consent?
> For instance, Massachusetts. >
"Whoever unlawfully has sexual intercourse or unnatural
> sexual intercourse, and abuses a child under sixteen years of age"
> [faces a punishment] so there's a big clue that if the child is
> sixteen or over this statute does NOT apply, but the statute seems
> to contemplate that there are lawful forms of sexual intercourse
> or unnatural sexual intercourse involving children under sixteen
> years of age.
The age of consent is 16. The law is written in a redundant fashion, as you
may have noticed, but just because a criminal act is described as
"unlawfully" doesn't mean there is a lawful way to do it.
Regarding the rest of your post--referring to case law for more precise
description of what does and does not constitute an offense is the normal
way that laws are applied, the police aren't "making it up." There is no
way a law can describe every possible "deadly weapon"--there is always a new
use of an old object, or a new object that didn't exist. As for "a shod
foot"--people have been trampled or kicked to death plenty of times. Judges
are often called upon to interpret the law--that's one of their main
functions after all, and it's most of what the Supreme Judicial Court (and
the U.S. Supreme Court) does.
And as for your friend's "thought crime"--I have never heard that "thinking
about it" was a crime. If he had sex with a boy or girl under age 16, or
some sort of sexual physical contact, he's committed a crime and trying to
jigger the exact age is not liable to help.
John F Carr
In article <bfl0osk080vqsmifn...@news.supernews.com>,
David S Chesler <world!che...@uunet.uu.net> wrote:
> How may one find in the statutes the Age of Consent?
I don't think you can in Massachusetts. The courts have ruled
inconsistently. Faced with age-based statutes not disallowing consent
as a defense, they ruled that consent was a defense to indecent assault
and battery on a child under 14 but was not a defense to lewd and
lascivious conduct with a child under 16. (The legislature overruled
the former decision.)
>but the statute seems to contemplate that there are lawful forms of
>sexual intercourse or unnatural sexual intercourse involving children
>under sixteen years of age.
Underage sex might be legal if both people are married. (In some
states it is legal to have sex with a married 15 year old even if
you aren't her husband, but not with an unmarried 15 year old.)
> Age isn't defined (my life insurance provider uses a figure that
>ticks over 6 months earlier than is common; some folks will talk
>about chronological versus mental or developmental age.)
There is precedent in Massachusetts that ones age changes at midnight
of ones birthday (i.e. the beginning of the day). In the late 1980's
a lawyer argued that his client was still a juvenile because the crime
was committed on his 18th birthday before the hour of his birth, so he
had not legally turned 18. The court decided otherwise.
> This seems to be a general failure of my fair state's ancient
>laws, that so much is left unwritten. (I've yet to find the
>definition of "Open and Gross Lewdness", either, just its
>punishment. The police blotters make stuff up, or at least
>call in case law, for such things as "Reckless driving my means
>of high speed" or "Assault by means of a dangerous weapon, to wit a
>shod foot".)
Or assault with a dangerous floor, or dangerous toilet paper. Still
waiting for the final word on that last one...
--
John Carr (j...@mit.edu)
Fred the Redshirt
world!che...@uunet.uu.net (David S Chesler) wrote:
>
>
> Massachusetts General Laws Chapter 265, section 23,
> http://www.magnet.state.ma.us/legis/laws/mgl/265%2D23.htm ,
> sexual intercourse, and abuses a child under sixteen years of age"
> [faces a punishment] so there's a big clue that if the child is
> to contemplate that there are lawful forms of sexual intercourse
> or unnatural sexual intercourse involving children under sixteen
> years of age.
Not a legal interpretation here and certianly not giving
legal advice but for purposes of academic discusion;
As others have suggested, the term 'unlawful' may be present
because Massachusetts allows, or at one time allowed marriage
of persons under the age of 16.
What caught my eye is the 'and abuses....' clause. From a
layman's viewpoint, it woud seem that the conditions on both
of the 'and' must be satisfied in order for the law to be
violated. My inference is that this is an 'agravated statutory
rape law', [my ad-hoc terminology] in which the agravating
feature is _other_ abuse of the child in addition to the sexual
intercourse.
As such, it seems to be defining a crime, less heinous than the
forcible rape of a child defined in the preceding section, but
more heinous than 'simple statutory rape' e.g. relations with
a minor under the age of 16 without any other agravating
features.
My guess is that statutory rape may be defined in another
chapter. You might check the marriage statutes. In Ohio,
the crime commonly referred to as statutory rape is, or
at least 25 years ago was, referred to in the Ohio Revised
Code as "Contributing to the deliquency of a minor." I
expect that choice of wording made is easier for prosecutors
to obtain convictions.
I noticed also that some other sections in Chapter 265
referred to Chapter 277 regarding how the language was
to be construed.
I think I have read better organized statutes.
>...
> And in case my wife is reading, the context is that in sympathy
> for a former teacher who is being persecuted for a thought crime
> involving sex and boys, I would like to form an organization
> advocating lowering the age of consent by a month, and before
> I join it I'd like to know just how low I'm calling for it to go.
> --
I don't see how changing the theshold by years even would
make a difference in regards to past actions (or thoughts).
Is one month going to be materially important in the future?
--
Fred the Redshirt
Falacies do the most damage when they are used in a well-intended
but ill-conceived effort to defend objective truth.
Sent via Deja.com http://www.deja.com/
Before you buy.
David S Chesler
Susan hofstader <shof...@tampabay.rr.com> wrote:
>"David S Chesler" <world!che...@uunet.uu.net> wrote in message
>news:bfl0osk080vqsmifn...@news.supernews.com...
>> How may one find in the statutes the Age of Consent?
>> Massachusetts General Laws Chapter 265, section 23:
>"Whoever unlawfully has sexual intercourse or unnatural
>> sexual intercourse, and abuses a child under sixteen years of age"
>> [faces a punishment] so there's a big clue that if the child is
>> sixteen or over this statute does NOT apply, but the statute seems
>> to contemplate that there are lawful forms of sexual intercourse
>> or unnatural sexual intercourse involving children under sixteen
>> years of age.
>
>may have noticed, but just because a criminal act is described as
>"unlawfully" doesn't mean there is a lawful way to do it.
Not just redundant, but circular.
If the law on larceny were "Whoever unlawfully takes stuff is
guilty of larceny", how would you know what stuff it's illegal
to take?
If one is married to a 15-year-old (maybe having just moved in
from another state) is it still unlawful?
I see that Chapter 272 Section 4 makes it punishable (same as
the punishment for drugging someone for the purpose of sexual
intercourse) to have sex with a chaste person under eighteeen.
But I guess deflowering a virgin isn't the same as statutory
rape?
>Regarding the rest of your post--referring to case law for more precise
>description of what does and does not constitute an offense is the normal
>way that laws are applied, the police aren't "making it up." There is no
>way a law can describe every possible "deadly weapon"--there is always a new
>use of an old object, or a new object that didn't exist.
It could give a definition so that a priori one could make
at least an educated guess what is and isn't such. I never
would have known that toilet paper is a dangerous weapon, as
John F Carr reminds us.
I would have thought that if you did it in the men's room,
it couldn't be open and gross lewdness; and I would have thought
that if you did it for purposes no more prurient than relieving
your bladder it wouldn't be open and gross lewdness, but cops
in my city have arrested people on that charge both acts. So
if urinating can be open and gross lewdness, why isn't it such
when it's done in the men's room?
I would have thought you can't get arrested for being drunk in
your own home, and my local cops seem to agree, they don't
arrest folks, they just put them in "protective custody".
> As for "a shod
>foot"--people have been trampled or kicked to death plenty of times.
Here in Massachusetts they've also been punched to death -- you seem
to imply that the definition of dangerous weapon is that which is capable
of causing death plenty of times.
>
>
It could give a definition so that a priori one would know what
is and isn't such.
> Judges
>are often called upon to interpret the law--that's one of their main
>functions after all, and it's most of what the Supreme Judicial Court (and
>the U.S. Supreme Court) does.
This goes beyond "interpret". I'm trying to be law-abiding. I
see that the law says "Whoever fubars shall be guilty of a felony.
Furthermore, whoever bloophs a cow shall also be guilty of a felony."
How am I supposed to avoid fubarring if I don't have any notice
what it is? And in some cases, I could be guilty of bloophing
a cow even if there were no bovines around, because blooph a cow
is a term of art that really means masturbate. (Someone was
charged here this month with providing an article of self-abuse.)
The term in Massachusetts for the Crime Against Nature or Sodomy
appears to be "Unnatural and Lascivious Act" -- yet "I was jest
doin what comes natur'lly" does not appear to be a defense.
>And as for your friend's "thought crime"--I have never heard that "thinking
>about it" was a crime.
So far my homeroom teacher has been suspended from teaching for many
years, and it's been upheld recently at the state level, simply for
being an officer of NAMBLA.
>If he had sex with a boy or girl under age 16, or
>some sort of sexual physical contact, he's committed a crime and trying to
>jigger the exact age is not liable to help.
Not ex post facto of course not. But if he can be pilloried for
his advocacy, I figured I'd advocate something that differs only
in gender and exact age. There has been no allegation that this
teacher ever acted improperly with a student or with any other minor.
But that's beyond what I'm asking, which is simply "What is the
age below which it is a crime to have sex with a person unless
one is married to that person?" or conversely "What is the age
above which it is no more a crime to have sex with a person than
it is with any other person?", or directly, "What is the age
below which a person is presumed incapable of giving consent
to have sex?"
New question: If statutory rape goes that way (incapable
of giving consent, rather than being chaste and enticed away
from one's father's home) given that we now recognize witholding
of consent, and rape, within a marriage, how is marriage a
defense to statutory rape?
Fred the Redshirt
j...@mit.edu (John F Carr) wrote:
>
> In article <bfl0osk080vqsmifn...@news.supernews.com>,
> David S Chesler <world!che...@uunet.uu.net> wrote:
> > How may one find in the statutes the Age of Consent?
>
> inconsistently. Faced with age-based statutes not disallowing
Holy crap! When I didn't see that in Chapter 265 I just sort of
figured it had to be somewhere else. How does this happen?
Was statutory rape _never_ defined in the Mass. statutes, or
was a group of laws repealed/replaced and this fell through
the cracks?
Were the legistlators unable to agree on an age of consent
and so decided it was better to leave all children unprotected?
>
> The police blotters make stuff up, or at least
> >call in case law, for such things as "Reckless driving my means
> >of high speed" or "Assault by means of a dangerous weapon, to wit a
> >shod foot".)
>
Thirty years ago in Ohio you couldn't get a 'speeding' ticket.
The Ohio speed limits were prima facia (maybe still are). You
could get a ticket for 'reckless operation due to check one below'
and one of the boxes that could be checked was 'excessive speed.'
One's speed could be below the posted limit and still be 'excessive'
or, in principle, under exceptionally favorable conditions (like
being friends with the judge) above the posted limit and yet
not excessive.
> Or assault with a dangerous floor, or dangerous toilet paper. Still
> waiting for the final word on that last one...
>
I suppose if the accused succeeded in injuring the victim with the
weapon in question then the weapon was dangerous. Or would that
be battery?
John F Carr
In article <32h6osgclq95ujfmf...@news.supernews.com>,
Fred the Redshirt <fredf...@my-deja.com> wrote:
>In article <r1h3os8cgtrrsqhrf...@news.supernews.com>,
> j...@mit.edu (John F Carr) wrote:
>>
>> In article <bfl0osk080vqsmifn...@news.supernews.com>,
>> David S Chesler <world!che...@uunet.uu.net> wrote:
>> > How may one find in the statutes the Age of Consent?
>>
>> I don't think you can in Massachusetts. The courts have ruled
>> inconsistently. Faced with age-based statutes not disallowing
>> consent as a defense...
>
>Holy crap! When I didn't see that in Chapter 265 I just sort of
>figured it had to be somewhere else. How does this happen?
>Was statutory rape _never_ defined in the Mass. statutes, or
>was a group of laws repealed/replaced and this fell through
>the cracks?
Statutory rape is a crime in Massachusetts. You just can't tell by
looking at the laws. Many laws set age thresholds. In this case the
court has decided, based on common law precedent, that the 16 year
threshold in the rape law is an age of consent as opposed to just
defining a different crime. In a different case, they concluded that
the 14 year age thresold for indecent assault and battery on a minor
was not an age of consent, just an additional element of the crime
distinguishing it from ordinary indecent assault and battery.
>Thirty years ago in Ohio you couldn't get a 'speeding' ticket.
>The Ohio speed limits were prima facia (maybe still are). You
>could get a ticket for 'reckless operation due to check one below'
>and one of the boxes that could be checked was 'excessive speed.'
Ohio has both absolute and prima facie speed limits. It's complicated,
but basically a speed over the limit is presumed illegal if below 55 and
per se illegal if above 55.
See http://www.mit.edu/~jfc/laws.html for a list of which states
have prima facie vs. absolute speed limits, and links to the laws.
--
John Carr (j...@mit.edu)
David S Chesler
That is, people are charged with things that are not found in
the statutes. I said police blotters -- I'd imagine the words
at arraignments or such are more clear, but the town newspapers
can't be tracked to the statutes.
In article <32h6osgclq95ujfmf...@news.supernews.com>,
Fred the Redshirt <fredf...@my-deja.com> wrote:
>> >call in case law, for such things as "Reckless driving by means
>> >of high speed" or "Assault by means of a dangerous weapon, to wit a
>> >shod foot".)
>
>Thirty years ago in Ohio you couldn't get a 'speeding' ticket.
>The Ohio speed limits were prima facia (maybe still are).
Our limits are prima facie (90 MGL 17,
http://www.magnet.state.ma.us/legis/laws/mgl/90%2D17.htm )
but we have a civil action for speeding.
90 MGL 24 prohibits driving recklessly without definition, and
that's the only mention of reckless driving. I suppose "by means
>> Or assault with a dangerous floor, or dangerous toilet paper. Still
>> waiting for the final word on that last one...
>
>I suppose if the accused succeeded in injuring the victim with the
>weapon in question then the weapon was dangerous. Or would that
>be battery?
No, that would be circular. If I hit you with a battle axe but only
scuff your steel-tipped boot, that's not ADW, but if I put out your
eye in a freak spitball accident it is, and I'm subject to the
enhanced penalties as in 265 MGL 18? Doesn't make great sense
to me, and doesn't provide guidance how to avoid those penalties.
In sibling article <71h6os4npqb0fu083...@news.supernews.com>
Fred writes:
> I think I have read better organized statutes.
My favorite is California. Massachusetts' are particularly arcane.
>> And in case my wife is reading, the context is that in sympathy
>> for a former teacher who is being persecuted for a thought crime
>> involving sex and boys, I would like to form an organization
>> advocating lowering the age of consent by a month, and before
>> I join it I'd like to know just how low I'm calling for it to go.
> I don't see how changing the theshold by years even would
> make a difference in regards to past actions (or thoughts).
> Is one month going to be materially important in the future?
The arguments of his detractors (when they can stop frothing
long enough to say more than "It's for the children!") is that
anybody who in anyway can say anything non-negative about sex
between children and adults must be a child rapist, and is unfit
to be teaching or walking around in general free and uncastrated.
They won't tell me which other ideas are so far out that merely
sympathizing with them is a thought crime (while assuring me that
there is no slippery slope) so I want to ask them on which side of
the line falls the Middlesex County Man-Girl Love Association,
which differs only in gender and a few years, and why.
If this teacher had been charged with an actual crime in New York
State, I doubt that tightening the definition of the crime ex
post facto in Massachusetts would make any difference -- but
in fact he hasn't been charged with, nor even alleged to have committed,
any actual crimes, which largely explains the limited support he has
received from colleagues and former students. That _is_ an
interesting politics (civil liberties) question, but I think
we're more in-charter addressing only the technical question
about the laws as they stand.