STATUTORY RAPE LAW

A recent Massachusetts Supreme Judicial Court Opinion offers a look into how juveniles are charged in statutory rape cases and reflects some interesting and sober judicial thinking.

The case is Commonwealth v. Bernardo B, 453 Mass. 158, 169 (2009).

A 14 year-old boy was charged with several counts of statutory rape and assorted other charges for sexual acts involving three 12 year-old girls. All were friends. On assorted occasions, sometimes in the presence of other members of this foursome, the boy requested to have his privates touched, and the involved girl in the particular instance did so; it is interesting to note that under the Mania Regime this qualifies as a “manual sex act”.

In October of 2007 the father of the boy (the Bernardo B. of the case title) was checking his son’s cellphone text messages and discovered a series referring to one of the girls telling the boy that she would have given him an “HJ” (hand-job) if (another of the girls in the group) hadn’t been there. (Note, please, that in current youthy argot “HJ” describes the act of putting your hand on the sex-organ of a male and holding it there for a second or two. Similarly a “BJ” (blow-job) refers to the act of placing one’s mouth on a male sex-organ and holding it there for a second or two.)

The father, already impressive for keeping tabs on the son’s cell-phone messages, contacted the mother of the third girl. That woman spoke with her daughter and the mothers of the other two girls, which is also nice to see.

The result was that within a few days of the father’s first contact the police were called and it was claimed that the boy had sexually assaulted the girls. And, as is famously announced at Santa Anita, they were off.

As the Court itself notes, “the record in this case, as we elaborate below, suggests among other things that the sexual activity in question was nonforcible, that all of the children mutually agreed to it, and that all were under the age of consent”.

Under questioning (and one can only imagine, although at least in this case all interviews were taped and supervised) at least one of the girls admitted to feeling “pressured”, to wit: the boy said he’d tell another girl she had said bad things about her, but that she never felt fearful or in danger. You can only imagine how much ‘forcible sex’ the enterprising Mania cadre could make out of any school where youngsters threatened to ‘tell other kids’ anything; the Court here soberly refuses to consider it ‘force’ and accepts the ‘pressure’ as a much lesser dynamic.

The girls all reported that the foursome remained “friends” throughout.

In several instances where the boy was asking for ‘sex’ he showed the girl(s) a computer video clip of a woman performing fellatio on a man. I can’t help but think that the computer angle might have made the case a bit more attractive to the DA, since Obama, seeking to back away from AWA, has instead backed a ‘computer sex offense’ initiative.

The boy was arrested in the middle of October 2007 and charged with several counts of statutory rape and assorted other charges (among them, Indecent Assault and Battery on a Child Under Fourteen). On several occasions his attorney contacted the DA to ask to have the girls similarly charged, since there was no evidence of force and every evidence that the whole thing was mutually consensual.

The DA’s office, initially putting her off with the claim that it was reviewing its charging-policy in statutory rape cases (a policy that was subsequently discovered never to have existed, let alone been reviewed), told her in Spring 2008 that it would only prosecute the boy. The statutory rape charge as it existed in Regime law was and is a ‘strict-liability’ felony, meaning that one only had to establish that the act had been performed to legally prove the charge; intention and extenuation are not required. Nor can a defendant plead that no force was used or plead ignorance or mistake as to the age of the child (who, by the law’s definition, is therefore the victim, regardless of being the active performer of the act).

It is also interesting that the acts described suffice, apparently, to meet the legal elements of “sexual intercourse or unnatural sexual intercourse”. Once again, to use an image from previous Posts, in the Mania Regime the battleship of the criminal law is brought right in close to the village in order to awe with its big guns (despite the fact that when those monsters are fired from so close a distance the mere force of the muzzle blast may well ignite or level the whole village and all its huts – to say nothing, as Scripture saith, of the inhabitants and the animals).

This led directly to the present case when the boy’s attorney then filed a motion for Discovery, asking the DA to provide statistics as to how many boys – as opposed to girls – were prosecuted for statutory rape in that jurisdiction; the intent here was to establish that the boy was being selectively prosecuted, discriminated against because of his gender.

The Commonwealth (i.e. the DA’s office) claimed it had “prosecutorial discretion” as to how to enforce the laws. The Court respectfully acknowledged that right, but then immediately went on to note that “prosecutorial discretion, however, is not unbounded. See id. at 608. The Federal and Massachusetts Constitutions guarantee individuals that the government will not proceed against them in a manner that is arbitrary or based on ‘an unjustifiable standard’, such as membership in a protected class”.

Let us pass over in silence the whole fraught matter of erecting “protected classes” in a nation that guarantees equal protection under impartial laws.

The Court observes: “The district attorney reasons that, because ‘there exists a link between violation of sexual assault laws and gender [and] [p]erpetrators of sexual assaults are overwhelmingly male’" then it’s not going to be possible for anybody to determine if there is any gender bias in the enforcement of the law. The DA reflects here both the Mania Regime’s conceptual assumption that males are sexual aggressors by nature and thus constitute the predominant ‘sex offender’ threat, and the Mania Regime’s general practice that males are thus – naturally, as it were – the ones most frequently prosecuted.

But it seems to me that especially with the definitions of ‘rape’ and ‘abuse’ so elastic and widely-stretched, there is probably a great deal more female-perpetrated activity than anyone cares to prosecute (or ‘study’, for that matter – you’re not going to get a lot of grant money from the government or concerned grantor-sources if you are planning to study females in terms of the commission of sex-offenses).

I cannot stop being impressed by this basic gambit of the Mania Regime: since males are biologically primed (if Evolution be any guide) to want to propagate as widely as possible, then a profound and broad political effort to wrest societal and cultural power from them could not fail if you could somehow criminalize ‘sex’ as much as possible. In the huge ‘war’ for political and civilizational clout, you pretty much guarantee yourself a self-licking ice cream cone if you can somehow criminalize the entire gender (by criminalizing the tendency Evolution has sort of saddled them with).

This is NOT to support or approve witless macho posturing, since ‘macho’ is not – in my view – a sufficient mode of expressing genuine masculinity or even adulthood.

Impressively, the Court is not distracted by the DA’s argument: the sex-offense laws are supposed to be gender-nonspecific, as well as impartially applied, so the defense has a right to see if in cases where all parties are equally consenting and “similarly situated”,  females are prosecuted in some roughly equal proportion to males.

Nicely, the Court takes the time to review the history of the charge of statutory rape. It was first codified into English law in 1275 (curious when one has been soused for decades with the shrill claim that ‘patriarchy’ had had its way throughout Western and world history right up until on or about January 1, 1970).

Granted, that first law was to prevent females “under the age of twelve” from being violated, since in those days a marriageable female was a father’s “property” and her marriageability provided a vital asset to the family as well as a security for her own future. (This may not seem the most ‘Correct’ reason to afford legal protection to the female, but for the day and age it may have been the most workable legal mechanism to do so; recall that before the child-labor laws came into general acceptance in this country, enterprising citizens tried – successfully – to protect children through the laws that prohibited cruelty to animals … it was simply, at the moment and for its era, the most immediately workable means of using the law to improve the situation and provide protection).*

The American colonies absorbed the English common law, although the age of consent was ten (although the life expectancy in the 17th century New World was only about half of what it is nowadays); in the Massachusetts Colony the punishment, by the way, for “carnal copulation” (i.e. actual sex) with a female under ten was death. In the late 19th century, “in response to widespread sexual exploitation of young girls in factories and urban centers” the age of consent was progressively raised: between 1886 and 1898 the age was raised from ten to thirteen to fourteen and then sixteen, all for the purpose of protecting them.

It was not until 1974 that the law was applied to males.

The Court notes that according to the Commonwealth’s defense of its refusal to turn over its records to the Defendant in order to establish whether there exists a pattern of gender-discrimination in prosecution, a Defendant would have to produce statistical evidence that he could not access unless he could demonstrate the gender-discrimination in prosecution that he was seeking the information in order to demonstrate in the first place. A Catch-22 with almost cynically awful consequences

So, the Court holds, boys and girls should be treated equally in matters that the Court – rightly, I think – terms “underage sexual exploration”, rather than engaging in “the historical stereotype that boys are the aggressors and that girls are exploited”.

Which is refreshing. I mentioned in my immediately prior Post that there is a serious problem in trying to apply inappropriate templates (‘stereotypes’ is the word used here) to a situation, no matter how conventionally Correct they are from an ideological point of view.

I also note that ‘exploitation’ is a refreshing change from ‘victimization’ and opens the matter up conceptually, sidestepping the now-established tripwire and, frankly, knee-jerk responses that ‘victim’ sets off in the mind of a public soused with Victimology in its crime-happy American variant.

Certainly, in matters of female sexual assertiveness – which has increased exponentially due to the cultural changes of the past 25 or 30 years – there is now a much greater possibility that the female is going to be an active and perhaps initiating element in a given encounter. The success of this aspect of the feminist agenda has – for better or worse – undermined the original stereotype of the female as always the passive, unsuspecting victim in any sexual encounter. And the Mania Regime was erected on that stereotype.

And certainly, the imposition of the innocent victim/evil aggressor onto childhood sexual antics is also inappropriate, counterproductive in so many ways, and will ultimately work deleterious consequences for law-enforcement and the legitimacy of the Law as well as for the youth caught up in the toils of the process.

I agree with the Court, of course, when it goes out of its way to say that it is “not un-troubled by” the behavior of these youth in the first place. But again, it is a direct result of the cultural loosening up strictures against sexual-activity – indeed the ‘valorization’ (as they like to say in certain circles) of sexual activity as a primary means of human ‘fulfillment’ and ‘happiness’ (as in “life, liberty, and the pursuit of”), while simultaneously what kept intensifying was the multi-sourced reduction of parental influence and even of familial bonds, to say nothing of the ‘de-valorizing’ of such oppressive and fuddy-duddy concepts as Character, Self-Control and even of Maturity itself.

In such a cultural situation, the possibility of untoward and harmful sexual activity among all age-groups, but certainly the young, is pretty much guaranteed now. And I don’t relish the possibility or probability of society simply accepting this state of affairs as ‘the new normal’. To be against ‘smoking’ and ‘fat’ but be all for ‘sex’ is incoherent and dangerous as cultural and societal policy.

But to try to stamp out that problem that you have caused by then trying to deploy the force and majesty of the sovereign criminal law is a surefire recipe of requiring the government almost literally to wage war against sizable – and increasingly sizable – chunks of its own citizenry.

In fact, it seems to me that one strand of the impetus behind the Mania Regime was that it would be necessary to compensate for the increasing failures in raising kids well by having the State try to keep behavior in line with its police authority. But ‘character’ and self-control and a well-grounded competence in genuine human sociability need to be instilled long long before a child is in middle-school or beyond. As it stands now, the plan seems to be to replace child-rearing and ‘character’ with fear of increasingly draconian legal consequences.

Which can only lead to very bad things all around.

NOTES


*I would add here that the fact that children were originally helped under the rubric of the cruelty-to-animals statutes does NOT demonstrate irrefutably that, say, ‘children were thought of as no more than animals’. It was simply that for the time and place those statutes, already on the books, were the most readily available means of helping them. This tendency, seen here in the past decades, of automatically making the worst-case inference from a historical fact (e.g., that, say, the early English laws about statutory-rape decisively ‘prove’ that women were thought of as mere property and nothing else) is neither good historical and conceptual form nor is it guaranteed to be an accurate inference as to the attitudes of those who put the law on the books.

This may seem obvious but it was precisely the effect (and I think the intent) of Political Correctness over here in the past few decades to ‘capture the spin’ and ‘capture the story’ and prevent public and widespread deliberation about alternative (and quite legitimate) inferences about past eras of human beings, such as the one I propose in the preceding paragraph.