Rigidity of the Law

A nineteen-year-old boy has sex with a fourteen-year-old girl.  It seems clear in such a case that the boy should go to jail, since he has committed statutory rape.  The girl isn't legally old enough in almost any state to give consent, and the boy should have known better.

But what if it was physically impossible for him to know better?

Case in point: this story.

tl;dr: the girl lied about her age, and admitted to police she lied about her age.  In court, she and her mother both stood up before the court and confessed about what she had done and pled for the boy not to be given a harsh sentence.  The boy didn't know her before hooking up with her, and thus had no way of knowing she was lying. 

Maybe you feel like it was still wrong of him, based on beliefs about sex before marriage or a perception of society's "hook up culture" - but those two things are legal and people have the right to have sex with whomever they want so long as both parties consent.  It's not justice to take out your belief against premarital sex on anyone (and if you truly believe it's wrong, you also likely believe that God will sort it out after death).  Barring such a belief, the only question is one of whether it's the responsibility of both parties to verify each other's age - and, for anyone under 18, people are not required to carry ID, which can make such verification impossible

But let's assume you can twist it around in your brain to the point where you still feel you must convict the boy and punish him for the act.  What is right?

For the sake of determining what's appropriate, let's assume for a moment he knew her age and acted anyway.  Then the question of punishment should be one of recidivism - that is, will he do it again?  If he is a child predator, with a history of attempting to engage in sexual activity with underage girls, then it's entirely appropriate to give him a long prison sentence.  (I disapprove of sex offender registries in general, but that's another argument.)  But, if he's a first offender who simply made a bad judgment call, and punishment can be expected to encourage him to make better judgment calls in the future, then a short sentence is appropriate. 

And not long ago, judges had the authority to make such calls. 

An editorial in The Independent, out of the UK, explains the problem as it transpired there.  It is similar to what happened in the states.

it was hypersensitivity to the outrage [early release murder cases] caused that led Labour to coin its most effective catchphrase ever: "tough on crime, tough on the causes of crime", promising ... to take the civilising steps that would discourage the young and poor from setting off down the wrong road, while vowing that it would also come down brutally hard on offenders.

Successive hardline home secretaries cleaved fiercely to the pledge to be tough, and as a result the discretion that judges had long enjoyed to discriminate between cold-blooded, premeditated murder, murder caused when the intention was only to warn or to wound, and murder committed in the heat of passion or at the wish and request of the "victim", was abolished. All were "murder", all were equally iniquitous crimes, and all would be punished by the same tariff: life.

This, it was decided, was the most effective way to stop the right-wing press from pouncing at regular intervals. But the resulting rigidity reduced the judge to a robot, and cast a blanket of moral uniformity over actions that ranged from the unspeakably vile to the merciful.

The problem is, we decided we needed to be tough on crime, and somewhere in the process, we reduced the ability of judges to actually judge anything.  In many cases, as the editorial describes, we make judges simple robots who merely assign the preordained punishment to the crime.  In other cases, though, thanks to our system of electing judges and this belief that judges must be tough on crime, we choose judges who will be over-the-top and make decisions that are based solely within a narrow definition of morality that happens to fit the minority of people who turned out to vote on election day.  We don't choose judges on their ability to make wise decisions, but rather on their ability take someone the rest of us would let walk free, look him in the eye, and say "f#%! your life, I have a political agenda to make."

And it further doesn't help that so many of us have this "the law is the law" belief that was expressed to me in argument on Facebook that this boy should be punished as harshly as he is.  When you say "the law is the law," you're really making a claim about how perfect the law is.  You're making a claim that, even though it was written by human beings (notably flawed) in a written language (notably plagued by interpretation issues), and even though it is extremely narrow in its scope and the possibility of human interaction is always necessarily wider in scope, that it is perfect and should never be questioned. 


That was originally what judges were for - to interpret the law, and make decisions about whether it's appropriate to apply it in certain situations.  But, we believed they were too loose with it, so we took that power away from them, or found other judges who more fit our narrow beliefs.  That was originally what juries were for, to decide not only whether a person was guilty of breaking a law, but whether it was even right to apply that law to their case (jury nullification is a thing, but no one ever talks about it). 

When the law is rigid, it is always unjust.