Safe Sex, Dangerous State

Mixing sex and the state has never been a good idea.

The kids these days are incredibly lame.

They barely do drugs. They hardly have sex. When they do finally get around to doing the deed, it's at much later ages than previous generations. They're responsible about birth control and disease prevention. They probably even make it home in time for curfew.

Skeptical? The Centers for Disease Control and Prevention report that the average age of self-reported virginity loss is now nearly 18 years old. The percentage of high school students who say they have had intercourse has been falling for two decades. Two-thirds of the students who are having sex say it's with a steady romantic partner. Eighty percent say they used contraception their first time, up from less than 50 percent in the '80s. They're also using more effective fertility-fighting methods than previous generations: IUDs, implants, and other forms of long-acting reversible birth control with lower failure rates have become much more popular, with use rising from 0.4 percent in 2005 to 7.1 percent by 2013. The rate of teen births fell 8 percent in 2015, capping off a 46 percent decrease since 2007. The rate of teenage abortion has also fallen sharply from its peak around 1990.

It seems like the combined efforts of America's adults to scare the bejesus out of kids about the dangers of the horizontal mambo while subsidizing the wazoo out of birth control have, in fact, paid off in fewer teens knocking boots.

But all of this responsible behavior has created a generation gap. The Boomer version of the birds and bees is on the verge of becoming worthless, and the GenX sex talk isn't far behind.

Coaching preschoolers as they carefully roll condoms onto bananas simply doesn't make sense as the exclusive focus of sex ed anymore. Jimmy hats are still a good idea, of course. But even as the physical act of sex becomes safer—at least as practiced by today's older, wiser, romantically involved, pharmacologically reinforced, temporarily sterile teens—the legal risk of many common sexual choices is skyrocketing.

Leaving aside the fact that Generation Alpha will probably be conceived in the back seats (or the front seats!) of autonomous vehicles as they speed untended down the highway, there's really nothing new under the sun, and that includes sexting. Teenagers have managed to communicate intemperately about their desire to get it on—often right underneath the noses of their guardians—since at least imperial Japan; court ladies anxiously awaited morning-after haikus in one of the world's first novels, Murasaki Shikibu's 11th century Tale of the Genji.

The new danger doesn't spring from the fact that digital Romeos and Juliets are communicating about sex in a way that might generate a permanent record. In fact, by the time today's 15-year-olds run for office, youthful nudie pics will be a prerequisite for reassuring the American people that you're a normal human being, not a disqualification.

Instead, the serious threat is from meddling cops, bureaucrats, school officials, and other avatars of officialdom. The state has always had an unhealthy interest in sex—think Comstock laws, Loving v. Virginia, Bowers v. Hardwick—but as we increasingly infantilize teens and young adults while disregarding privacy protections that once shielded intimate communications, more "kids" are being caught in a legal dragnet that is purportedly designed to protect them.

Consider a case in Cañon City, Colorado. After following up on a call to a state bullying tipline in December, a public high school official uncovered widespread sexting. Rather than taking a moment to consider whether the common nature of the behavior suggested an appropriately proportionate remedy, the administrator decided to follow the letter of the law in Colorado (and many other states), in which the sender of a sexually suggestive selfie is both victim and perpetrator of the heinous crime of possessing and distributing child pornography.

Under Colorado law, producing or distributing sexually explicit images of a minor is a felony, punishable by four to 12 years in prison. Mere possession is still a felony, to the tune of 12 to 18 months in prison. That figure increases to two to six years in prison if the possessor has video or more than 20 still images.

"We're not out to hang every kid," Cañon City Police Capt. Jim Cox generously noted. But the department says it will leave as many as 100 kids in limbo for up to 30 days while it determines who is a victim in the eyes of the law and who will be sent into the justice system as a potential sex offender.

Thom LeDoux, the district attorney in charge of the case, told CNN that parents attempting to monitor their kids' behavior may themselves be implicated in a crime, essentially making what should be a routine checkup and conversation between parents and kids the subject of legal scrutiny: "For parents that may be having conversations with their children or reviewing cellphones as the superintendent recommended, they need to understand that continuing or ongoing possession of these materials does constitute a very serious crime for the adults and for the children."

The case, which has been chronicled by the Associated Press, The New York Times, and Reason's own Jacob Sullum, is notable both for its scale and pure, unmixed absurdity. But this is just one recent example of a phenomenon that is growing more common every day.

College kids—legal adults who are surely the right age to be experimenting, looking for a partner (or many partners), and generally sowing their wild oats—are forced to operate within a shifting legal and moral landscape where an awkward moment freshman year can get them accused of rape, tossed out of school, or dumped onto a sex offender registry. This isn't a common occurrence—most drunken romantic missteps don't end with either party jailed, thank goodness—but it does happen.

In some cases, the increased attentions of officers of the law are unambiguously good. True sexual violence has historically been under-prosecuted. Not to put too fine a point on it, but proven rapists, violent pimps, and child molesters should obviously go to jail.

But we seem to have lost our willingness to draw lines between these violators—who have genuinely caused serious physical harm to other human beings—and people engaging in moderately to seriously unwise consensual behavior with other people capable of making their own decisions. Part of the trouble is that agents of the state, looking to expand their discretionary power and increase the severity of threatened punishments, have spent decades purposely blurring those lines. And these days the most enthusiastic cheerleaders for the sex police aren't on the conservative right but the progressive left, which seems increasingly intent on reducing the bodily autonomy and privacy it once championed.

To be honest, this issue of Reason is a bit of a boner killer. In the following pages, you'll find Senior Editor Jacob Sullum's account of the unconstitutional and wildly uneven legal treatment that accused consumers of child pornography experience (page 26). You'll see columnist Deirdre McCloskey's story of tangling with the unholy union between the psychiatric establishment and the carceral state during her gender transition (page 12). You'll read Elizabeth Nolan Brown's wide-ranging investigation into Operation Cross Country, a series of ongoing stings that purport to be searching out evil men who traffic children into sexual slavery but in fact amount to a war on people engaging in consensual commercial sex (page 16). Plus an item about rape in prison (page 11), and Free-Range Mom Lenore Skenazy on the late, lamented Playboy empire (page 6).

Sex is still fun. Don't let Reason put you off your game. But mixing sex and the state has never been a good idea.