The external evolution of criminal law.

• Author: Levine, Kay L.

INTRODUCTION I: THE EXTERNAL EVOLUTIONARY MODEL A. The Consensus-Conflict Debate B. The Sociology of Social Problems II: PUTTING THE MODEL TO WORK: THE STORY OF STATUTORY RAPE A. The First Century of Statutory Rape Enforcement 1. The Social Purity Movement 2. From Protecting Chastity to Punishing Promiscuity 3. Mid-Century Enforcement: Welfare Meets Statutory Rape B. From Dormancy to Revival 1. Statutory Rape Goes Underground 2. Pregnancy and Politics Collide 3. Adult Men Come under Fire C. Aggressive Enforcement at Century's End 1. The Birth of the Statutory Rape Vertical Prosecution Program 2. Discovering the Harm of Exploitation III: REFLECTIONS THROUGH AN EXTERNAL EVOLUTIONARY PRISM A. The Production of Legal Meaning over Time 1. Interest Groups 2. Statistics and the Media 3. Linkage between Past and Present 4. The Perpetually Disadvantaged Classes B. The Implicit Amendment Approach to Criminal Law-Making C. Implicit Amendment of Other Criminal Law Statutes CONCLUSIONS The greatest of all legal fictions is that the law itself evolves ... by its own impartial logic, true only to its own integrity, unswayed by expedient concerns. (1)

INTRODUCTION

Scholars have long lamented the failure of the substantive criminal law to place any meaningful limits on the ways in which penal statutes are enforced in modern American society. (2) In addition to criticizing the vast amounts of discretion held by law enforcement agents, observers point to design flaws intrinsic to those institutions of government that control criminal justice policy. (3) The institutional design argument highlights imbalances in the criminal justice system that favor prosecutorial and legislative preferences for breadth at the expense of judicial interest in precision, thereby limiting the ability of micro-procedural reforms to make a difference and enabling prosecutors to exploit the power gap at every opportunity. (4) The result is abusive or unprincipled enforcement of laws that should otherwise reflect widely held norms of social control, causing a troublesome gulf to develop between the laws as written and the laws as lived by the populations subject to their control.

The institutional design critique, while powerfully suggestive of a much-needed systemic overhaul, nonetheless has limits: it fails to explain shifting enforcement patterns for crimes that do not rest on widely held norms of social control. Where the criminal definition itself is or becomes unpopular, unstable or essentially contested, (5) insider gamesmanship alone cannot account for the gap between the law on the books and the law in action or for variation in enforcement patterns over time. For these sorts of crimes external forces push and pull the laws in new directions, reflecting societal debates about whether the alleged social harm is really a problem that the criminal justice system must solve. In other words, change in the substantive meaning of criminal laws may be more of a response to external social trends and interest group maneuvers than a sign of pathology in the design or internal functioning of the legal system itself.

To assess the malleability of unstable crimes we therefore need to think creatively about where the forces of change reside and how they operate, adopting what I call an external evolutionary perspective. Such a perspective requires two levels of analysis. First, rather than simply documenting a statute's legislative history or the record of prosecution statistics, we should pay close attention to the spectrum of political, social, and economic forces in society that led to a law's creation and that promote its use in any given period. Secondly, we must be attuned to how the law changes over time, not just in its formal language and enforcement but also in its rhetorical appeal and public definition. This means we should look beyond the actions of the people who inhabit the justice system and examine social-structural developments that might account for new approaches and new policies. In short, the external evolutionary model both recognizes that unstable laws are subject to a variety of influences on their development and instructs that to understand this development, we need to adopt a broad conception of the law's place in society; efforts that focus exclusively on one era or set of institutional actors are bound to fall short.

While the role played by external factors in the creation of state criminal law definitions has been understudied in the legal academy, (6) our colleagues in other parts of the university have much experience examining the origins and growth patterns of criminal regulatory schemes, crafting works both theoretical and empirical to explain how laws develop in society and, in turn, how those laws affect the development of the society itself. (7) They have focused attention on topics as diverse as the relationship between the criminal law and social norms, the impact of interest groups on the formation and deployment of criminal law policy, and the role of the media in forming our impressions of social problems. In so doing, these authors have developed a rich literature whose insights and vocabulary can illuminate the true range of factors--beyond simply the justice system's institutional design--that create distance between a criminal law's origins and its present uses.

After introducing the theoretical foundations of the external evolutionary model derived from works by historians, sociologists, and criminologists, (8) this Article uses the analytical power of the model to explicate the development of a particular crime whose meaning has been highly contested for more than a hundred years--statutory rape. Although a few authors have examined specific moments in the history of age of consent legislation, (9) for the most part the changing nature of consensual sex crime enforcement has remained somewhat under the radar. This Article augments this small body of literature by assembling the snapshots taken by others, supplemented by contemporary data collected by the author, to provide a moving picture of the statutory rape law in action. The perspective offered by such longitudinal data sheds remarkable light on the "problem" of statutory rape, identifying for us key markers, as well as key actors, in the history of the law's enforcement and helping us to understand their roles in constructing the meaning of this crime over successive generations. This Article thus provides a comprehensive picture of the crime of statutory rape--across time and contextualized by social science theory--that adds significantly to prior works that focus on only a single dimension or unitary period of enforcement.

Moreover, a thorough examination of statutory rape's particular history reveals an important basis for law's malleability: where the formal language of the statute is broad and there is no stable consensus as to the harm caused by the prohibited behavior, variation in enforcement over time is likely to thrive. These two traits work in tandem to increase the gap between the incidence of the behavior covered by the statute and the number and nature of the prosecutions initiated in its name. A broad statute covers behavior in which a lot of people engage, yet prosecutions must always be limited to particular subsets of the population due to resource constraints and other practicalities. (10) When discretionary enforcement is of a crime whose theory of harm is subject to competing definitions and priorities, legal actors are able to ascribe a new purpose to the law when it suits their needs, and each new purpose both suggests and guides that generation's enforcement priorities. (11) A law's breadth and contested nature also explain its periods of dormancy and revival: once a stated purpose loses rhetorical power or social meaning the law falls into disuse, but because it stays on the books, it remains available to address new social problems that future leaders identify as important. In short, for a law that is both linguistically broad and substantively unstable as to content, law enforcement's discretion to reshape its function and purpose is substantially increased, and the law becomes, to quote historian E.P. Thompson, a "useful new toy" for each successive generation. (12)

This pattern of generational reincarnation manifests itself in the history of statutory rape enforcement. Although the formal law has remained largely unchanged over time, the meaning of the law--the understanding of the harm caused by sexual behavior between minors and adults--has been reinvented many times in the past 150 years, and not just at the margins, but at its core. The statutory rape codes have been used at various times to reinforce fathers' interests in their daughters' marriageability, to protect young women's chastity from seductive men, to control promiscuous or disease-laden adolescent females, to enhance child support collection efforts, to reduce teenage pregnancy, and to identify and punish sexual exploitation of teenagers. (13) This process of construction and reconstruction, what Professor Reva Siegel has described in another context as "preservation through transformation," (14) suggests that statutory rape is a broadly-defined crime with multiple personalities, rendering it highly susceptible to manipulation (by interest groups, legal professionals, and their respective policy agendas) and highly resistant to complete repeal.

The story of statutory rape illuminated by the external evolutionary model thus increases our understanding of law's inherent flexibility and identifies the salience of outside actors and institutions in making the laws that govern, and punish, deviant behavior. It also reminds us of the problems that arise when decisionmaking in the criminal justice system becomes unmoored from basic principles of accountability that more transparent processes might prevent, or at least reveal: discriminatory...