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Notes -
Okay, second thread of thought, separate from the Trump issue below:
I'm never a fan of the 'power discrepancy' argument since 'power' is usually very hard to define in tangible terms. We know it when we see it, sure, but it comes in different forms. The person who holds financial power might not be the 'more powerful' person in a confrontation where the other party holds... a gun.
"Coercion" is a more tightly defined, and the law has pretty decent standards for recognizing where coercion has occurred. Power can be used to coerce, but it can also be used to 'persuade' in the literal "convince someone that it is good/right for them do to the thing" definition.
Should we differentiate between a rich/powerful guy saying "If you don't sleep with me I will make your life a living hell" vs. saying "If you sleep with me I'll give you a ride in my private jet"? Probably. Either one is the result of a 'power' imbalance.
And, finally, the existence of statutory rape laws can, arguably, invert that power dynamic, rather than eliminate it! A particularly sociopathic 15-17 year old can tell someone slightly older than themselves "Sleep with me/give me money or I will tell the cops you raped me."
I don't think that's a common situation, but you see the point, if we're worried about power imbalances it doesn't do to just hand more power to the alleged less powerful person in this situation.
What's my solution? Bring back literal rites of passage rather than tying things to a strict age-based formula.
Philosophically and psychologically, 'consent' is based on state of mind and understanding of the acts in question, age is only very loosely correlated with those factors. And we have the ability to measure those factors more directly. So why use the less reliable metric that is constantly being gamed anyway.
So I see the "what should age of consent be?" debates as a massive red herring. Understandable one since its the standard in place now. Yet everyone has secondary motives for what they'd prefer the age be. And there legitimately is NOT some 'one size fits all' answer!!
Just cut through that stupid knot and tie legal adulthood to some test or other obstacle that a young person must clear before they're recognized as full adults. Some will pass the test at age 15, some at 18, some at 25, and some never at all.
So basically, maturity. That’s what I think at least you and I agree is more accurate than power in terms of what’s ickier. An immature child really doesn’t fully understand decision making, and sex is a big thing. An immature child is more persuadable and doesn’t have as firm boundaries. An immature child is more likely to have their sexual development harmed by unhealthy dynamics or acts. (And by the way most states already have a patchwork of laws and norms of enforcement that cover the gradients in age with some granularity, though it can be jagged in some areas).
But if you want something other than age, which is a good proxy for maturity but not perfect, I think it’s incumbent upon you to provide some test of maturity that would work. I am not sure I could think of one. Most historical rituals I’m aware of were in fact age based and were more symbolic in many cases than practical. EDIT: strike this paragraph. I didn’t check the link, looks like you have played with it a bit. But I will still say that historical precedent doesn’t seem that helpful.
Bingo.
Double bingo. A person that doesn't fully grok that sex makes babies, what STDs are, and the other more subtle risks to intercourse with another person is, definitionally, less capable of consenting to it.
Of course, this puts the onus on the MORE MATURE person to NOT initiate the sexual relationship when they realize the other side isn't really ready.
I would be fine with a test in the same vein as that given to teens who want to get their driver's license.
A comprehensive exam that tests, for example, if a person REALLY understands the implications of a sexual relationship. Not on like a deep scientific level, mind, but at least the "ins and outs" (pun intended).
This means that young people can in fact study and prepare for the test, which is a GOOD THING, since it encourages them to learn the necessary information that will prepare them for adulthood. I would also include testing for, say, contractual rights. Maybe someone can't be give student loans unless they can prove they know how compound interest works!
Of course we'd have to have significant anti-cheat measures in place. Which is why I really would prefer there to be some 'objective' "test of willpower" element involved. If you force them to endure some sort of uncomfortable experience without giving in to temptation or dropping out before the finish, its MUCH harder to rig the system.
Yes, this could be the literal equivalent of The Gom Jabbar (but with less severe consequences). If you can't endure a couple minutes of excruciating (but not injurious) pain... I DARESAY you probably aren't 'mature' enough to handle real life. Note that this is LITERALLY how some traditional tribes do it.
I would like to couple that with a requirement that someone, ideally their parents, sponsor them for the test, in the sense that they're affirming "yes, this person is ready for adulthood, and if they screw up I am prepared to help accept the consequences for promoting them too early." So for the next, I dunno, 3 years if they screw up somehow the sponsor is also on the hook for helping fix it.
So... Instead of the sloppy but intuitive test of "does she look old enough" one would now have to literally ask if she has a license?
We used to have fucking licenses, it was called “marriage”
And people used to fuck before marriage anyways. The puritans commonly had premarital pregnancies. Covered up by rush marriages.
Fornication was indeed a crime. Like smoking weed today. Illegal and popular.
Fornication was usually punished with a fine, though it could be punished with whipping when the fine was too far out of reach. Both men and women were prosecuted, with an exception that took me embarrassingly long to understand: When accusing a married couple (for conduct before the wedding, naturally), it was common to prosecute only the groom. This is an unspoken discount for the couple out of respect for their subsequent marriage, without having to admit it and undermine the social norm.
Even if we assume that most fornicating couples got away with it (a fair assumption, I think), it still reflects a very different set of norms than those of modern dating.
Fornication was usually covered up (if no pregnancy resulted) or "punished" with a shotgun wedding (if it did). Actual enforcement of the laws against it was vanishingly rare.
I wouldn't say it was common to prosecute anyone at all for pre-marital sex leading to a shotgun wedding. I can believe it was an order of magnitude more common to prosecute the groom than the bride.
Given the actual customs in cisHajnal Europe and Colonial America between about 1600 and the Industrial Revolution, I strongly suspect the actual social norm was "maintain plausible deniability and don't complain if you end up shotgun-married".
I was replying in the context of Puritan Massachusetts, which @TIRM alluded to.
As I said, I suppose that most folks got away with it even there. But the Puritans were aware that they were doing something weird and difficult with the society they were trying to build, so they were willing to do some things differently. Their courts were way more willing to get involved in family matters than most, for good or for ill.
If you haven’t read it, I recommend Edmund S. Morgan’s book The Puritan Family. It’s very readable and very interesting.
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