Eugene Volokh of UCLA Law School and I have been arguing about whether it was fair for Sen. Lindsey Graham, R.-S.C., to state at the confirmation hearings of Chief Justice John Roberts that Justice Ruth Bader Ginsburg “wants the age of consent to be 12.” Volokh has been arguing that it was; I’ve been arguing that it wasn’t. Now Volokh has concluded that he was mistaken—that, in the documents in question, Ginsburg never intended to endorse lowering the age of consent to 12—and he has manfully admitted his error on his Web log. I applaud his willingness to admit error, and I think there’s a good chance that his explanation of how the error was made is correct.
Volokh’s argument is complex, but it boils down to this: He thinks that the puzzling non sequitur that started all the trouble—some language Ginsburg quoted in the course of arguing that the federal law governing statutory rape be rendered gender-neutral—was the result of a drafting error. The language appeared to argue for lowering the age of consent to 12. But nowhere in the documents did Ginsburg actually state why she’d ever want to lower the age of consent to 12. From this I concluded that the age-of-consent part was not meant to be incorporated into Ginsburg’s recommendation. It was off the point, which was about gender, not age; and besides, nowhere did Ginsburg state flatly that she approved of all the language she was quoting. She was merely saying that the law ought to incorporate gender-neutral language similar to the gender-related language in the example she set forth.
Volokh has an alternative explanation. He thinks the entire quoted passage wasn’t supposed to appear in the texts. He thinks that Ginsburg meant to quote language in S. 1400 proposing changes to 18 USC §1633, but goofed and quoted language in S. 1400 proposing changes to 18 USC §1631. He writes,
I think this because the report did indeed cite §1633 in the recommendations; because it had discussed it earlier in the text; because it called for sex-neutralizing the rape definition elsewhere in the Recommendations (see item 1 below); and because the report (as I pointed out above) suggested that §1153, governing Indian territory, borrow the language from §1633. …
If you make the substitution Volokh recommends, then the language Ginsburg quotes doesn’t propose that the age of consent be lowered to 12; it merely proposes that the law be rewritten to decriminalize sex between a 12-year-old and someone aged 12 to 17, presumably not because it’s swell for children to have sex with one another, but because parents, social workers, and/or psychologists are better suited to deal with such situations than judges, juries, and prison guards. Under the language Volokh believes was intended to be inserted into the texts, the crime of statutory rape would occur only when the offender was five years older than a child under 16, except in instances when the crime involved a child younger than 12. In those cases, even minors would be prosecuted.
A couple of readers had e-mailed similar but less detailed analyses to me, based on their familiarity with certain state laws governing statutory rape, and I’d actually suggested (privately) to Volokh that I forward them to him, but I never got around to it. I didn’t write about this alternative interpretation because I didn’t feel confident that I understood it, and I never found the time to have it explained to me more fully. In the meantime, Volokh arrived at his conclusion independently.
As Volokh lays it out, it seems to make sense. It’s true (as I noted in my first column on this subject) that Ginsburg had argued that the law should focus on sex between a minor (male or female) and someone (male or female) who was significantly older. Unlike some odd language asserting that the age of consent be lowered to 12, the age-spread language that Volokh thinks Ginsburg meant to quote was relevant to Ginsburg’s discussion. It is also of no use to demagogues like Graham who are far too eager to believe that Ginsburg is some sort of degenerate.