A theory of criminal victimization.

AuthorKleinfeld, Joshua
PositionII. The Concept at Work A. Legal Doctrine 2. Children, the Elderly, and the Disabled, b. Child Sex through Conclusion, with footnotes, p. 1119-1152
  1. Child sex

    Let's zero in on one aspect of the legislative scheme more closely. Within the variety of special criminal protections for our three victim groups, a large proportion has to do with sexual crimes involving children. And within that body of law, the central place goes to the crime of having sex with a minor-statutory rape as it is often called for older children and child rape for younger ones (though the terms are variously used). Statutory or child rape is the paradigmatic victimization crime, the first, most obvious, and most powerful example when we think of criminal law extending special protection to the vulnerable or innocent. It was for engaging in sex with young children that six state legislatures sought to extend the death penalty to nonhomicide crimes despite unfavorable Supreme Court precedent, (114) and when the Supreme Court struck down those statutes as cruel and unusual, the controversy centered on innocence and vulnerability to a considerable degree. (115) So let's examine more closely the statutes governing this form of wrongful sex.

    There is a conventional story about why sex with children is criminal that does not give special weight to children's innocence or vulnerability. The conventional story holds that the ordinary logic of rape is that it is sex without consent; children can't consent; therefore sex with children constitutes rape. (116) What is distinctive about children on this account, what leads to their special legislative treatment, isn't their innocence or vulnerability, but their reduced agency. Yet this story, however reasonable in principle, does not hold up when one actually looks at the penal codes. Consent alone cannot be driving the doctrine.

    The California Penal Code, for example, defines rape as sex without consent, where the lack of consent is due to force, threats, unconsciousness, etc., and the punishment is three to eight years. (117) Now, if the usual theory of statutory and child rape were right, it would be easy to imagine the statute. It would simply include minority among the other factors that vitiate consent and prescribe the usual punishment: three to eight years. But that is not how the statutory scheme works. Statutory and child rape in California is generally either not as bad as adult rape or much worse (see Figure 1, below). The same is true in New York (see Figure 2) and Texas (see Figure 3).

    [FIGURE 1 OMITTED]

    [FIGURE 2 OMITTED]

    [FIGURE 3 OMITTED]

    Three features of these statutory schemes stand out. First, nonforcible sex with a young child (twelve or thirteen or younger) is typically subject to harsher penalties than adult forcible rape. Second, nonforcible sex with a midrange teenager (thirteen or fourteen to seventeen or eighteen) is typically subject to milder penalties than adult forcible rape. Third, the gap between the age of the offender and the age of the victim typically matters. (121) It is these three facts that the conventional story, focusing exclusively on consent, cannot explain.

    To start with, if consent were the only issue, and if a fifteen- or sixteen-year-old cannot consent, why should sex with them be treated more mildly than other nonconsenting sex--than adult forcible rape? Perhaps consent theorists might try to stand their ground in these cases by proposing some notion of partial or impaired consent. But then, second, why should sex with very young children be treated more severely than ordinary rape? It's true that young children cannot consent to sex, but it's not as though they consent even less than the adult who is dragged kicking and screaming from a parking lot. Both the adult and the young child do not consent at all--yet the penalties are different. And finally, if consent were the only issue, why should it matter whether the offender is forty years old or just eighteen himself?. Why should age gaps matter? If a sixteen-year-old is incapable of consent, he or she is equally incapable of consent either way.

    The concept of victimization can explain here what the concept of consent cannot. Begin with the very fact of drawing lines between victims of different ages where all of them are below the putative "age of consent." That there are degrees of wrongfulness in this doctrinal area makes perfect sense on a victimization model because, as discussed above, victimization is an analog concept: a person can be more or less vulnerable or innocent, and consequently more or less victimized. And of course, children are more innocent and vulnerable when they are younger.

    Next, consider the sharp line all three jurisdictions draw around age thirteen. There's a jump there in the doctrine; we see sudden, not stepwise, variation in the severity of wrongdoing and punishment. But of course, there's a jump there in terms of human development, too. The line that the law is drawing is the line demarcating adolescence. On one side of that line is genuine childhood, and on the other, the liminal space between childhood and adulthood; with the first, we have a stage of development that is at least relatively presexual, and with the second, a stage of development that we expect to be one of sexual awakening. With adolescents, we want the passage into adult sexuality to be a healthy one, and we worry that it might be distorted by some bad experience, some manipulation by an older person. With young children, we don't want that passage to occur yet at all, and we react to its occurrence as if something has been not just distorted but lost or destroyed. This difference also affects how we look at the offender. A forty-year-old man who is attracted to sixteen-year-old girls or boys had better watch himself, but he is not deviant in the sense of feeling sexual attraction to a kind of person that is not supposed to have a sexual presence. A forty-year-old man who is attracted to eight-year-old girls or boys is deviant in that sense, precisely because he feels sexual attraction to a kind of person that is not supposed to arouse sexual feelings. (122) The issues here are connected to both vulnerability and innocence, but I think pride of place in this case goes to innocence: youth and sexuality, and in particular the concept of virginity, are bound up in our culture with the idea of innocence.

    Finally, what about the law's insistence on an age gap between offender and victim? Here, the key is victimization's relational character, its yoking together of wronged and wrongdoer in a moral relationship "like the opposing poles of an electrical apparatus: ... an arc of normative current ... passing between." (123) Where there is victimization, there must not only be one person in a position of vulnerability or innocence, but also another in a position of relative power and worldliness; there must be a preying upon. And there is no preying upon without an age gap. If two seven-year-olds have sex, we might think something has gone wrong socially, but we wouldn't ordinarily think of the problem as one of predation (or the logic would be that each preyed upon the other!). But if a forty-year-old has sex with a seven-year-old, there is predation. The difference in the two cases turns neither on the age of the victim alone nor on the age of the offender alone, but on the relationship between those two ages. Age gap requirements are necessarily relational, insisting on certain relative positions between wrongdoer and wronged--just as the logic of victimization would suggest.

    Thus I suggest a new understanding of the wrong at issue in child sex. I do not claim that consent is irrelevant, but I do claim that it is secondary. The core of the wrong is not chiefly nonconsensual sex but predatory sex; it is preying sexually upon vulnerability or innocence. For what we see in this area of doctrine is a complex arrangement of both relational and absolute age requirements that cannot be explained on the basis of consent alone. Victims must be below some ceiling--eighteen in California, seventeen in Texas and New York--to be subject to predation on account of their innocence or vulnerability; this is the so-called "age of consent," and it turns on the victim alone. Offenders must of course be above some floor to be criminally responsible at all; this concerns familiar norms regarding child offenders (rather than child victims) and it turns on the offender alone. But provided those absolute requirements are satisfied, we begin a complex bipolar dance where criminality shifts as certain relational and threshold ages on both sides are passed. The numbers in all three jurisdictions are constantly in motion, and the logic of it will elude any analysis in terms of offender or victim alone. But the patterns are perfectly logical: the numbers are moving in tandem, tracing out the concept of victimization with such clarity of focus that it is startling to see. I have not cast this analysis in terms of legislative intent; the interest has been in the normative logic of the law, not the psychological motivations of the lawmakers. But in this case, the victimization concept is written into the law so precisely that I find it hard not to believe that the legislatures had the concept in mind--consciously, unconsciously, or semiconsciously. (124) The normative logic of the law seems too strong to be explained in any other way.

    1. Combatants and adulterers

      The concept of victimization not only extends concern to the vulnerable or innocent but also, as discussed above, withdraws it from the culpable. (125) We've been examining the first part of that equation. Let's turn now to the second: reduced penalties for those whose victims have themselves transgressed.

      This is an uncomfortable business for legislatures. Without running directly afoul of our sense of equality, they can safely and explicitly protect certain victim classes, but it would be awkward indeed for a legislature to declare in a penal code that, say, robbery or rape are to be downgraded to...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT