Explicit Sexual Proposition to 16-Year-Old Can Be a Crime, Even if Sex with the 16-Year-Old Isn't

From yesterday's decision in Ohio v. Sebring, decided by the Ohio Court of Appeals, in an opinion by Judge Jill Flagg Lanzinger, joined by Judge Jennifer Hensal (and with Judge Donna Carr concurring in the judgment):

Mr. Sebring was friends with the parents of C.S., a 16-year-old girl. C.S. had a sixteenth birthday party at her house. Several of C.S.'s friends, including Q.H. and E.B., attended the birthday party. Mr. Sebring, who was 34 years old at the time, also attended the birthday party.

According to E.B., the teenagers at the party (all of whom were in high school) swam, ate, and then went to the basement to watch a movie. The adults stayed upstairs, but Mr. Sebring went to the basement with the teenagers. E.B. testified that there were three couches in the basement, and that she was sitting on one of them while Mr. Sebring was sitting on another couch. Mr. Sebring asked E.B. to come sit next to him, but she declined. Mr. Sebring then "squeezed" himself between E.B. and another person on the same couch. Mr. Sebring rested his hand on E.B.'s knee and started playing with her hoodie. E.B. testified that Mr. Sebring gave her an alcoholic beverage, which E.B. explained contained Tito's and orange juice. E.B. testified that she was familiar with the taste of alcohol, and that she saw Mr. Sebring pour Tito's into the drink. When questioned by the trial court, E.B. clarified that Tito's is a brand of vodka.

E.B. testified that Mr. Sebring asked to drive her home at least twice, but she declined. Mr. Sebring then had E.B. add him to Snap Chat, a messaging app. E.B. left the party and Q.H. drove her home. Mr. Sebring then started messaging E.B. through Snap Chat. In one of the messages, Mr. Sebring asked E.B. to return to the party, indicating that he "misse[d] his drinking buddy." E.B. did not immediately respond to Mr. Sebring's messages. Mr. Sebring then messaged E.B.: "Tell your mom that you want to spend the night here and let me eat that Pussy * * *." E.B. took a picture of the message, which the State introduced as an exhibit at trial. E.B. testified that Mr. Sebring apologized to her the next day for sending inappropriate messages, and that she blocked him on Snap Chat. On cross-examination, E.B. testified that the content of that message was not the type of thing that she discussed with her adult friends.

Q.H. testified that C.S. is her best friend, and that they live across the street from each other. Q.H. testified that she met Mr. Sebring through C.S.'s family, and that she had known him for about a year and a half at the time of C.S.'s sixteenth birthday party. Q.H. testified that she drove E.B. home from the party and then returned to her house. When she returned home, Q.H. realized that she had left a bag at C.S.'s house. Q.H. then walked across the street to C.S.'s house and retrieved her bag. When she went inside, Mr. Sebring was sitting with C.S.'s parents in the kitchen, but Mr. Sebring did not say anything to her. Once she left C.S.'s house, Mr. Sebring started messaging Q.H. through Snap Chat, initially teasing her about another boy. Q.H. responded "LOL" because she wanted to end the conversation. Mr. Sebring then started sending her "inappropriate and * * * sexual" messages through Snap Chat, indicating that he knew where the spare bedroom was at C.S.'s house and insinuating that he wanted to have sex with Q.H. Mr. Sebring then messaged Q.H. about "[d]estroying [her] pussy[.]" Q.H. testified that Mr. Sebring's messages made her uncomfortable….

Sebring was prosecuted and convicted under Ohio Rev. Code 2907.31: "No person, with knowledge of its character or content, shall recklessly do any of the following … [d]irectly sell, deliver, furnish, disseminate, provide, exhibit, rent, or present to a juvenile … any material or performance that is … harmful to juveniles," with "[h]armful to juveniles" defined as:

that quality of any material or performance describing or representing nudity, sexual conduct, sexual excitement, or sado-masochistic abuse in any form to which all of the following apply:

(1) The material or performance, when considered as a whole, appeals to the prurient interest of juveniles in sex.

(2) The material or performance is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for juveniles.

(3) The material or performance, when considered as a whole, lacks serious literary, artistic, political, and scientific value for juveniles.

Constitutionally permissible, the court held:

A "prurient interest" is a "shameful or morbid interest in nudity, sex, or excretion * * * [which] goes substantially beyond customary limits of candor in description or representation of such matters * * *." "Whether a work appeals to the prurient interest or depicts sexual conduct in a patently offensive way is governed by contemporary community standards." "To be patently offensive, the work must depict or describe 'hard core' sexual conduct." "This requirement is satisfied if the material depicts or describes activity [that] meets the definition of 'sexual conduct'" under R.C. 2907.01(A), which includes cunnilingus.

In his merit brief, Mr. Sebring argues that there is no compelling state interest served by prohibiting 16-year-olds, who are of the age of consent [in Ohio], from receiving messages that insinuate sex or oral sex. He argues that "[p]resumably, teenagers in these ages had sex education and addressing female genitalia in a vulgar matter is not new, shocking, or corrupt in their minds." Mr. Sebring's general assertion that "teenagers in these ages" would not find the messages in this case to be new, shocking, or corrupt falls short of establishing clear and convincing evidence that R.C. 2907.31 is unconstitutional as applied to the facts in this case.

Under the plain language of the statute, the "prevailing standards in the adult community as a whole with respect to what is suitable for juveniles" is the standard, not whether the juveniles themselves found the messages "new, shocking, or corrupt" like Mr. Sebring suggests. Additionally, whether the messages appealed to the prurient interest of the juveniles is governed by contemporary community standards. Mr. Sebring has not explained, much less argued, how those standards are unconstitutional as applied to the facts of this case.

Additionally, Mr. Sebring's argument is based upon the flawed premise that the statute wholly criminalizes discussing sexual conduct with a person of the age of consent. It does not. Instead, the statute criminalizes disseminating material that is "harmful to juveniles" as that phrase is statutorily defined….

Mr. Sebring argues that the State failed to prove that the messages appealed to the "prurient interest" of the victims. Mr. Sebring's argument in this regard is premised upon the fact that the victims were of the age of consent. Aside from being minors, the age of the victims is not relevant for purposes of determining whether the messages appealed to the "prurient interest" of the victims. As noted, "[w]hether a work appeals to the prurient interest or depicts sexual conduct in a patently offensive way is governed by contemporary community standards." …

Sebring seems like someone one wouldn't want to be friends with one's daughter, and it sounds like C.S. was upset by his propositions. But the Ohio statute isn't aimed at prohibiting material that offends the recipient. Indeed, the quintessential example of distributing "harmful to minors" material involves distributing pornography to minors who are quite happy to consume it, but who the law thinks shouldn't be able to easily access it. Under the government's theory, which the court accepted, similar sex talk that is eagerly welcomed would equally be criminally punishable, including if it's said to a 16-year-old with whom the speaker is already in a sexual relationship (again, a perfectly legal one, since the age of consent in Ohio is 16). That's true if the speaker is 34, or 18, or likewise 16.

This seems hard to justify, in my view. If it's OK to have sex with a consenting 16-year-old, the law shouldn't ban explicit talk about sex with the consenting 16-year-old. (Again, if the state wants to have some law limited explicit sexual approaches that are likely to be offensive to a person, that would raise a different question; but this law isn't so limited.)

Brianna Dietry represents the state.

Comments

[Martinned]

Classic example of "stupid, but not unconstitutional".

[Dilan Esper]

I agree with Prof. Volokh that this might be unconstitutional as applied to welcome messages from the victim's age cohort. But it's not unconstitutional as to this creep's messages, which are clearly unprotected speech, and sexual expression strikes me as the sort of thing where we don't need to worry about a chilling effect. So I'd wait until the state prosecutes someone who shouldn't be prosecuted under this, and then allow that person to bring an as applied challenge. This creep should go to prison.

[Zarniwoop]

Doesn’t this mean that the exact same words are obscene or not-obscene based solely on the identity [age] of the person saying the words?

Would the exact same words be obscene if uttered by a person who is 18 years and one day old?

[Dilan Esper]

I would uphold this as applied because sexually propositioning a 16 year old is a verbal act. It's unprotected speech.

[David Nieporent]

You'e assuming your conclusion.

[Dilan Esper]

Nope.

Put another way, I think the government can prohibit unwanted sexual propositions by much older men of 16 year old girls without regard to whether the sex itself would be illegal. It's simply unprotected speech because its a verbal act.

[TheAmazingEmu]

Your logic would suggest that any attempt to ask someone out is unprotected speech and could be banned by the government.

[Zarniwoop]

That doesn’t address the Q posed: does the court’s definition of “obscenity” in this context depend solely on who is uttering the words?

If so, is it constitutional to treat the exact same words differently if the person uttering them is 18 years + 1 day old and the advance is “welcome” (as you seem to suggest), versus crrepy advances from a 34 year old?

Is there more genteel [i.e., non-obscene] language a 34yo could use to proposition a 16yo for what everyone seems to agree would be a legal encounter? Maybe something truly unsexy, like “How about we practice some acts discussed in your high school sex ed class?”

Is it really about the language and alleged “obscenity”, or is it actually about the ick factor?

Look, I think the guy is a complete creep (see creepy rule discussion below). I have two daughters in high school. I’d personally introduce the guy to the business end of a baseball bat if it were my kids he was plying with alcohol and propositioning. But that’s not really relevant to the basic constitutional issue.

[Dilan Esper]

I wouldn't analyze it as obscenity. It's unprotected speech because it's a verbal act.

[Zarniwoop]

That answer hand-waves away the entire 1st Amd. by simply calling speech a "verbal act".

At some point all words that come out of lungs and mouth require a physical act to move the air molecules around. That sort of reduction to the absurd is a dodge, not an answer to legitimately hard Qs.

[Ben of Houston]

I would have no problem with him being hauled in on harassment charges. Indeed, I'd give him a flogging and let her father have the whip.

However, this law specifically seems at the very least to be a contradiction, as it is legal to engage in the act but not to ask about it. And like many laws on this topic, it seems that they are very selectively enforced.

[Life of Brian]

When questioned by the trial court, E.B. clarified that Tito's is a brand of vodka.

I have to think that such a question would only be asked northward of the 37th parallel.

Creepy dude. Seems like the court engaged in some results-oriented reasoning to get him out of circulation for a while. Likely the prosecutors would rather have a more effective tool than this statute, which does seem likely to go down in flames eventually.

[Longtobefree]

Right. He could have sex with her, but asking her to have sex is illegal. Got it.
Ohio is weird.

[John F. Carr]

In a widely publicized case in New Hampshire, a high school student was convicted of a misdemeanor for having sex with a 15 year old girl and a felony for using electronic communications to arrange the meeting.

[Rossami]

Not unique to Ohio - but yes, weird. Also stupid and unnecessary. Based on the summary above, he could have been just as easily convicted of other anti-harassment laws that are not age-specific.

[Ben of Houston]

The harassment charges would have probably been a misdemeanor. Solicitation of a minor is a felony.

[Dr. Ed 2]

He could have sex with her, but asking her to have sex is illegal.

It's a little bit more complicated -- most states also had a fornication statute, sex outside of marriage was once illegal.

It's age of consent to be married without parental permission -- it's not that you can have sex with the 16-year-old but you have to marry her. And the marry part is now dropped.

[Noscitur a sociis]

Living in Dr. Ed’s fantasy world must be a fascinating experience.

[Magister]

"Next stop, Willoughby!"

[Sarcastr0]

One of the darker TZs.

[David Nieporent]

Dr. Ed, making up shit yet again.

[Dilan Esper]

Worth noting that he could have CONSESUAL sex with her. These messages were clearly unwanted. Why isn't the analogy to whether he could have NONconsensual sex with her? (Answer, he can't do that either.)

[Bob from Ohio]

How do you ask for consent without speech?

Grunt and take off your pants?

[Dilan Esper]

How about you say "she's 16, I'm not going to ask?".

[Longtobefree]

I wonder how this would have been decided with three men instead of three women.

[Mr. Bumble]

...or if Mr. Sebring was Ms. Sebring.

[David Welker]

There are biological reason we are more protective towards females than males when it comes to our social reactions to events.

First, the risk of pregnancy (or abortion) is more severe for women. Second, oxytocin, a hormone that contributes to people forming emotional attachments to others, is released much more strongly in women when they have sex than in men. This makes sex potentially a more high stakes decision from an emotional standpoint for a woman than a man.

There is absolutely no convincing reason we should ignore these very real biological differences between men and women.

Finally, women are typically not as aggressive as men. The probability of a 34-year old woman dominating the life-decisions of a 16-year old man is simply much smaller than vice-versa.

[Dr. Ed 2]

Bullshyte....

[Magister]

Dr. Ed 2 has big feelings about the posting of incorrect statements.

[Rossami]

I'll try to be a little more precise than Dr Ed.
- Risk of pregnancy - granted
- Oxytocin levels - more in women but the research does not support "much more". Like most biological things, oxytocin secretion during sex is a bell curve - and while the center of the bell curve is further to the right for women, the curves are still mostly overlapping. Just as with height where the average male is taller than the average female, the odds of any given pairing of a male and a female is closer to 60/40.
- Women are less aggressive. Again, bell curve but the differences are even smaller. There are countless examples throughout literature and history. It's barely true even as a sterotype and not at all appropriate as a basis for social or legal policy.

Of your three arguments, only the first really holds up to scrutiny.

[David Welker]

Rossami:

You are really going to argue about the aggression point???

Have you even existed in the real world? Like, at all???

[Rossami]

David, have you ever worked in a men's crisis center? Have you seen the bruises (and worse) of abused husbands? Do you even acknowledge that they exist?

The "men are aggressive and women are not" is a grotesque stereotype. Yes, on average, men are more aggressive than women. But the differences are not that great and the variances between individuals vastly exceed the average variance between sexes.

[David Welker]

That men are abused in a country with over 100 million women cannot be doubted.

But that women are generally less aggressive than men and typically express the aggression they do have in more indirect ways is pretty obvious to anyone who has interacted with people in our society generally.

There are many individual exceptions, but men commit the majority of violent crime and are generally more aggressive and more assertive.

Usually, it is men who ask women out rather than vice versa. A man is more likely to stalk a woman than vice versa. A man is more likely to be physically dominant. Men are also physically stronger and thus more able to protect themselves without help when attacked by an unarmed woman.

You can talk about exceptions. But exceptions are not the most typical case.

“ Yes, on average, men are more aggressive than women.”

We agree.

“ But the differences are not that great and the variances between individuals vastly exceed the average variance between sexes.”

Here we disagree. Since men are typically physically stronger than women, attempts to use physical dominance usually aren’t viable. And, of course, the potential to use physical dominance can also be leveraged to create psychological dominance and/or dependence as well.

I am not saying that women are necessarily better people morally. But they aren’t as physically strong and they are less likely to be domineering. They have less testosterone. Women often use different and more subtle strategies than men to exert influence.

Concerns about the typical behaviors of men and women are different for sound biological reasons.

Next up from you: “Testosterone versus estrogen is on a bell curve.” Like, do you have some agenda to deny differences here?

[bevis the lumberjack]

“Tell your mom that you want to spend the night here and let me eat that Pussy”.

That certainly escalated quickly.

And I can’t imagine that line ranking above #10,000 on the Most Successful Seduction Lines list.

But to his credit, his use of capitalization is very presidential.

[Zarniwoop]

You present as male in this forum. How would you react to a not-unattractive woman walking up to you and offering oral sex? Be honest.

So it turns out that women like receiving oral sex too. Like, a lot, if the giver has any talent whatsoever. Of course you might disagree that women like receiving oral sex. But that would mainly indicate that you’re no good at providing it.

n.b. I have personally found such offers work well with equals; I'm not suggesting it should work for creepy-rule situations.

The main downside I see that line in the mention of “mom”, not the offer of oral sex itself.

[ReaderY]

It’s very straightforward. The defendant was convicted of violatating a kind of obscenity law, disseminating an obscene message (obscene with respect to minors) to a minor. It’s well established that the question of whether a depiction of sex acts is obscene is completely separate from whether the acts themselves are legal, so the two have nothing to do with each other

The Supreme Court’s precedents on this are also very straightforward. The Court has been extremely solicitous of protecting minors not just from sexually explicit materials but from what Professor Volokh calls “explicit talk.” It has upheld school discipline cases over far less. And there’s a line of cases, never overruled, that says that what’s obscene for a minor (more precisely, what a state can constitutionally declare obscene for a minor) is far, far less than what’s obscene for an adult.

Professor Volokh here is essentially arguing that obscenity laws make no sense. That’s a very understandable political position given his first-amendment absolutist and libertarian leanings. But pretending the entire body of obscenity law out there simply doesn’t exist doesn’t strike me as a sound legal strategy, and this case fits into that body very straightforwardly.

Professor Volokh would be better off arguing trying to argue that this law is unconstitutional under existing obscenity-as-applied-to-juveniles caselaw, if he can. And if he can’t do that (one can always argue, but I don’t think he can argue this one successfully), he’d be better off simply arguing that this body of precedent should be overruled.

But simply claiming he doesn’t understand how the court could have reached this result in a post that doesn’t even mention, let alone attempt to engage, the obviously applicable body of law (obscenity as applied to juveniles), strikes me, frankly, as more an admission of lack of legal expertise in this area than an actual legal argument, at least one that has any possibility of persuading.

[Mr. Bumble]

So Mr. Sebring's language was at fault rather than his desire?

[ReaderY]

Obscenity law’s requirement that to be constitutionally punishable, the material involved appeal to juvenile’s “pruriant interest in sex” does tend to suggest that the law regards the desire the message communicates as faulty. As the court correctly noted, it is what the community’s adults think is prurient etc., not what the juveniles themselves think, that counts. The girl in this case obviously did not find this message welcome. But that fact was irrelevant to whether or not it was legally obscene as applied to minors.

Since this case involves a conviction for disseminating obscene material to a minor, not for soliciting a minor. Professor Volokh mischaracterized both the statute and the court’s opinion. I think the court here correctly applied the Supreme Court’s obscenity-as-applied-to -juveniles precedents, which permit a much broader conception of obscenity for minors than for adults.

The fact that the statute labels the material involved “harmful to minors” rather than “obscene as applied to minors” doesn’t strike me as making the slightest constitutional difference. It’s an obscenity law all the same.

[Zarniwoop]

I get what you're saying, but I respectfully submit that you're conflating "unwelcome advances" with "obscenity", influenced more by the ick factor than the content of the communication itself.

And I say this as the father of two high-school age daughters.

[ReaderY]

I’m not doing any conflating here. The defendant was prosecuted under an obscenity statute, a statute which prohibited dissiminating “material” that was “harmful to minors,” and the court upheld his conviction under obscenity standards.

Under the law the defendant was prosecuted under, whether the advances described in the message were welcome or not was entirely irrelevant to the defendant’s guilt. As the court made clear, it doesn’t matter in the least what the girl thought. As the court opinion explained, under obscenity-as-applied-to-juveniles law, the “community standards” for obscenity are solely those of the adult communitiy, not minors. Whether the girl welcomed the message or not was entirely irrelevant to the defendant’s guilt. Consent is no defense to obscenity.

You’re the one conflating “unwelcome advances” with obscenity.

I’m describing the statute’s text and the legal reasoning the court opinion followed. Nothing to do with my personal concept of “ick.”

[Jacob Grimes]

"It’s well established that the question of whether a depiction of sex acts is obscene is completely separate from whether the acts themselves are legal, so the two have nothing to do with each other"

This isn't a matter of obscenity but of protecting minors. The statute prohibits "disseminating matter harmful to minors." In this case, the "harmful" matter was describing sex to a 16-year-old, yet actually having sex with the 16-year-old would not be harmful. That beggars belief and the court does not even attempt to wrestle or even acknowledge the apparent conflict in its opinion.

[ReaderY]

It’s a matter of protecting minors from obscenity. The statute prohibits disseminating material “harmful to minors” to minors. But as the court opinion explained, the definition of what’s “harmful to minors” is the context of expressive material the same as the definition of what’s obscene as applied to minors under the Supreme Court’s obscenity statutes.

You see what happened as obviously falling into certain categories. But the prosecutor, and apparently the Ohio legislature, chose to apply different categories, and that’s the basis of the statute. Whether it’s choice is good or bad policy is a political question. This post is about whether the conviction is constitutional. For that, the conviction has to be judged with respect to what the statute says and how the state’s courts have interpreted it. Her the state’s legislature, courts, and prosecutors have all chosen to look at what happened as disseminating an obscene message to a minor, and not as making unwelcome advances. Whether you or I think that’s a good way of looking at what happened or not, the courts have to judge the constitutionality of the conviction based on that choice and the body of constitutional law that applies to the chosen category.

[Jacob Grimes]

If the law is going to be subjected to any meaningful scrutiny, the court has to assess the goal sought and the means pursued. The government can't claim to have an interest in protecting minors specifically from corrupting influences, or obscenity, and so prohibit sexual communications and at the same time allow actual sex with minors. It's incredibly underinclusive and I don't see how it could survive strict scrutiny.

[ReaderY]

Of course it can. It does exactly that when prosecuting for violating laws against obscenity as applied to adults. Why should obscenity as applied to minors be any different?

[Jacob Grimes]

Obscenity law as applied to adults regulates distribution of and exhibition of obscene materials. If I tell my wife I'm going to ream her out, I am not breaking obscenity laws. That does not change depending on the age of my wife.

I'm still not sure obscenity is the right issue in this case. This guy wasn't sending pornographic images to minors, he was expressing a message that he wanted to have sex with this girl.

[ReaderY]

That’s because the standard of what constitutes “obscenity” for minors is much lower than the standard for adults. And that difference, well established in Supreme Court precedent, is the whole basis of the prosecution and the court’s opinion upholding it.

[ReaderY]

The question isn’t whether obscenity law is the “right issue,” just as the question in numerous federal commerce-power cases isn’t whether interstate commerce is the “right issue.” The question is whether the constitution permits the relevant government entity to invoke the relevant power in the particular situation.

The state’s use of its obscenity-for-minors power to address this case may seem attenuated, even a stretch. But because this case involves the dissemination of a message (material) of a sexual nature to a minor, it’s really far less of a stretch than the routine invocation of the federal interstate-commerce power in many situations that don’t seem to have anything to do with interstate commerce, yet the application of federal commerce power is routinely upheld.

[ReaderY]

Here is a recent Maryland Court of Appeals opinion, in its first “sexting” case which involved 16-year-olds videotaped themselves and texted the video to each. The court upheld their convictions, holding that while the underlying acts were legal and the parties consented, these facts are not defenses to their conviction for disseminating material hamful to a minor.

The opinion went on to say that a minor who sends a sexual video of himself to himself is guilty of violating the statute, entirely by himself.

https://mdcourts.gov/data/opinions/coa/2019/41a18.pdf

[ReaderY]

That is, saying that this situation “isn’t obscenity” is no more relevant than saying that growing a marijuana plant in ones windowsill for home use or countless other applications of the interstate commerce power “isn’t interstate commerce.” The legal question isn’t what it is. The question is what legal category the government (here the state) chose to fit it into, and whether its choice to fit it into thst category (whether thought a “good” fit or not from a policy point of view) is constitutional.

The state here chose to use its power to regulate disseminating obscenity to minors as its way of addressing this situation. The legal question here, just as it is when analyzing federal commerce-power statutes, is not what the situation “is” in any absolute sense, but whether the state’s legislative choice to apply this particular power to this situation is constitutional.

[bdb484]

I could be mistaken, but I believe Ohio has a statute that just forbids invitations to sex when the offender knows/should know that the solicitation is unwelcome. That might have been a better fit.

[Michael P]

How would that be applied vis-a-vis statements like "I invite you to go fuck yourself"?

[Bubba Jones]

Why do libertarians seem so determined to die on this hill?

[Longtobefree]

Because it is actually two hills, and they look like breasts?

[tkamenick]

Because we don't equate "creepy" with "criminal".

[hoppy025]

The age of consent should be raised to 18, full stop, maybe even 21. If a 20 year old can't buy a handgun, she shouldn't be allowed to consent to sex with groomers like the Rev. Kirkland.

[David Welker]

EV:

It isn’t hard to justify at all. If someone is already in a sexual relationship, then maybe the law shouldn’t interfere. The relationship, including the sexual component, is already the status quo. And if everyone involved is potentially happy with it, why should society interfere?

These sexual propositions are different. They are attempts to change the status quo.

That is significant, because young people are especially naive when it comes to relationships. Young people are especially unlikely to know how to deal with controlling people. A person like Sebring isn’t just someone you wouldn’t want to be friends with. He is someone who might take the life choices of your son or daughter away.

He is extremely disrespectful of the bodily autonomy of these young people. The words “I want to destroy your pussy” is said by someone in a domineering mindset.

So, this guy enters this picture. And all of the sudden, the life opportunities of a young person are changed at a critical juncture because they were not yet equipped with the adult skills to fight the person off and properly assert themselves and their own interests. They end up controlled. They lose the choice to go to college. In many respects, their life is artificially and unfairly limited.

Let’s put it this way. If a 16-year old is already in a sexual relationship, maybe they chose that for themselves. Maybe they initiated it. Maybe the law shouldn’t interfere.

But do we want 34-year olds targeting 16-year olds not already in sexual relationship to enter into one? No we do not. Are the stakes high? Yes, they are very high. Is the potential damage life-changing in a highly negative way? Yes. Is there a huge rush here for the 16-year old? No, there is not. When she is older, there undoubtedly will be other guys who want to “destroy her pussy” if that is what she wants.

Protecting childhood is a legitimate interest of society. Giving people the breathing space to grow is a legitimate interest of society. And protecting the remainder of childhood for someone approaching adulthood is a legitimate interest of society. And Ohio law is completely justifiable based on status quo principles.

If we don’t protect 16-year olds, where does it end? Do we just let this behavior creep to younger and younger ages? So that the 34-year old is legally allowed to proposition 14-year olds? How about 12-year olds? How about 10-year olds?

Or to put it another way. Are you saying that if we choose to provide this very limited protection for 16-year olds, we also SHOULD interfere with existing sexual relationships that they have also entered?

In fact, I don’t think your view makes any sense. It is OK to give 16-year olds a little more autonomy regarding situations they have already gotten themselves into while still offering them a limited amount of protection from status quo disrupting risks.

Especially since human development doesn’t occur in a discrete manner. A person doesn’t change that much between being 15-years old and 364 days and 16-years. It makes sense to GRADUALLY change the legal status of young people into adults.

Your view can be summarized as follows. EVERYTHING regarding sex MUST change as soon as someone move from being 5843 days old to 5844 days old. But, instead, it makes much more sense for some things to change while some things remain the same. Gradual change better reflects biological reality, because brain development is a continuous rather than discrete process.

We use age as an approximation. In fact, there is not really anything special about N years-old. It is merely convention that we measure human age in years rather than months. And furthermore, different people mature differently. Some people are more mature than others at the same age. Some people are more experienced than others at the same age. Person X might be more mature regarding decisions involving A, while Person Y might be more regarding decisions involving B. These age-based restrictions are approximations.

There are probably a lot of 16-year olds who would be more prepared to deal with an overbearing 34-year old than a lot of 19-year olds. But on the whole, we rightly assume that 19-year olds are more likely to be able to deal with this guy than the 16-year old. ESPECIALLY where the 19-year old went through a period where they GRADUALLY assumed more adult responsibilities.

But brain development and maturity, which is what we really care about, isn’t evident enough to be the direct basis for law. But rather than make no law at all, we are better off with approximations. So we use something simple like age. But it makes sense to make increases in responsibility gradual rather than sudden.

[Bubba Jones]

"They are attempts to change the status quo."

Um, what? How else do two people above the age of consent begin a relationship?

[David Welker]

If you are 34 and she is 16, how about you just don’t.

[Life of Brian]

If you are 34 and she is 16, how about you just don’t.

Exactly, and this is actually how a number of states (but not Ohio) structure their age of consent laws.

In Florida, for example, it's legal at 16 as long as the other person is 23 or younger -- otherwise not legal until 18.

[Bob from Ohio]

"how about you just don’t."

Yes, morally.

But the age of consent statute unfortunately does not make an adult/minor distinction.

[Life of Brian]

Is there no political will to fix that? Single-age cutoffs are increasingly in the minority, I'd imagine driven by the desire to be able to more effectively deal with predators like the ones we're discussing without opening the floodgates to kids fooling around in high school.

[David Welker]

But this law about proposition does make an adult/minor distinction.

And it makes it harder for adults to get consent from minors.

Doesn't seem like a problem to me.

[Zarniwoop]

It isn’t hard to justify at all. If someone is already in a sexual relationship, then maybe the law shouldn’t interfere. The relationship, including the sexual component, is already the status quo. And if everyone involved is potentially happy with it, why should society interfere?

This sounds like something a groomer would say.

And I mean an actual heterosexual groomer, not the "all the gays are pedos" paranoid propaganda usage of the word.

[David Welker]

Zarniwoop:

You sound like a stupid person.

[tkamenick]

So your position is that the first time he propositions her it's criminal, but if she agrees, everything after that is fine?

Your arguments are good arguments about how age of laws should be written, but not good arguments for why criminalizing speech suggesting two people engage in lawful behavior is constitutional.

[David Welker]

It is not about whether the behavior is lawful. It is about who should be deciding to engage in that lawful behavior and WHEN they should be deciding.

16 isn't the time to be making major life decisions about relationships, if it is avoidable.

Why the great desire to cut childhood short???

[Jason Cavanaugh]

Whatever you need to tell yourself to rationalize the simple fact that you’re ok with speech about a legal activity being made illegal.

[David Welker]

I do not believe that the significance of this speech, which is directed at a particular person, is the idea that it communicates but the wrongful outcome it wishes to achieve.

It is an attempt to steal someone's childhood from them. There are literally millions of people this 34-year old can proposition without directing it at a 16-year old.

[David Nieporent]

But Ohio has decided that the outcome is not wrongful.

[David Nieporent]

If we don’t protect 16-year olds, where does it end? Do we just let this behavior creep to younger and younger ages? So that the 34-year old is legally allowed to proposition 14-year olds? How about 12-year olds? How about 10-year olds?

Way to completely miss the point. If the act is illegal, then solicitation to commit the act can also be illegal. Presumably Ohio has decided that 34-year olds can't legally have sex with 14-year olds, 12-year olds, or 10-year olds. (I certainly hope so!) So, no, the 34-year old can't proposition them for sex either.

But Ohio has decided that 34-year olds can legally have sex with 16-year olds. There's no slippery slope here. It's a bright line, as you yourself admit.

[John F. Carr]

The soundtrack for this thread can be "Everyone's gone to the movies" by Steely Dan.

[Alpheus W Drinkwater]

I forget which movie theater chain used that song at the beginning of their ads before the movie, but it used to make me chuckle. "They do realize what this song is about, right?"

[Krychek_2]

Years ago, New Mexico had a ridiculously low age of consent (14 if I recall correctly). An adult had sex with a 14 year old and ended up being charged with contributing to the delinquency of a minor, for which he received a prison sentence. The appellate courts upheld the conviction.

Whatever opinion one may have of an adult who has sex with a 14 year old, it strikes me that if the legislature sets that as the age of consent, the prosecution should not be able to do a workaround with a charge of contributing to the delinquency of a minor. How is doing something legal delinquency? And what other legal acts would be contributing to the delinquency of a minor?

[Life of Brian]

Those facts sound an awful lot like State v. Moore, which quotes the relevant 2009-era childhood sexual penetration statute as having fairly common age difference criteria as I noted above:

perpetrated on a child thirteen to sixteen years of age when the perpetrator is at least eighteen years of age and is at least four years older than the child and not the spouse of that child

The victim was 14 and the perp 46, so there was no debate he violated the above statute. The delinquency issue was limited to a subset of the charges that were structured as CSP during the commission of a felony. Creeper argued that the grand jury was not properly instructed vis-a-vis the underlying delinquency felony because the sex was consensual, and then tried to bootstrap that into a general flaw in all the charges. Didn't work.

[Zarniwoop]

Reminder to all about the "creepy rule": (your age / 2) + 7 [years].

If the other person's age is below that, it's creepy.

[Rossami]

“Creepy”, however, is not a valid basis for “illegal”.

[David Welker]

Creepy absolutely is a valid basis for illegal.

You can't flash people on public subways. Because that is creepy. You can't masturbate in public parks. Because that is creepy.

In general, undesirable behavior is, in fact, a basis for making something illegal.

[Krychek_2]

I think the libertarian argument is that if someone flashes you on the subway, or masturbates in a public park, you've suffered no real harm, and part of the cost of living in an urban area is being exposed to things you find distasteful. I will leave it to others to opine on whether that is a legitimate argument.

[Rossami]

No, "creepy" is not a valid basis for illegal. Neither is "undesirable". There are a host of societal options to discourage "creepy" or "undesirable" behavior long before "let's lock people up at the point of a gun".

"Illegal" is supposed to be reserved for things that can hurt other people - murder, assault, theft, etc. If it's merely icky but doesn't hurt you, then solve it yourself by simply looking away.

[David Welker]

Yeah, sorry. But if you are going to masturbate in front of unwilling audiences in a public park, I am OK with locking you up for a while.

And I am also worried about what else you are planning next. After the thrill of shocking people from public masturbation or flashing people wears off, what next?

A person who engages in such extreme anti-social behavior does not seem very safe to be around.

[David Welker]

According to your "rule" there is nothing "creepy" about a 27-year old propositioning a 10-year old. Or a 21-year old propositioning a 7-year old.

Maybe you should think more before you invent arbitrary mathematical formulas? Run a few examples.

The real issue isn't age difference. The real issues are power differences and development differences.

This is why we usually aren't offended by two teenagers having sex, even if we think they shouldn't. Two stupid teenagers are generally equally without much power in society. If both consent, one is unlikely to be seen as a disruptive predator compared to the other.

In contrast, a 39-year old coming in and trying to proposition a 16-year old (not creepy, according to you because 16 * 2 + 7 = 39) IS quite properly seen as both inappropriate and predatory.

[Jason Cavanaugh]

"According to your “rule” there is nothing “creepy” about a 27-year old propositioning a 10-year old. Or a 21-year old propositioning a 7-year old."

I'm truly sorry, but are you a certified idiot?

How have you never heard about the "1/2+7" 'rule?'
How the fuck are you so unaware as to think people mean for it to apply to 10 and 7 year olds?

Finally, according to the math, a 39 year old would have a 'creepy cutoff age' of 26.5.

You fucked up basic algebra. The math that 7th grade children learn to do correctly.

[David Welker]

"The math that 7th grade children learn to do correctly."

You seem to be angry and wish to establish your intellectual superiority based on what you concede is an elementary math error. You should fix that, as it only reveals your desperation.

You are correct that if you double the age of the younger person and add seven years the result is different than if you divide the age of the older person by half and add seven years.

The rule produced by the latter seems OK with concrete examples, but still results in bad examples. For example, using that rule a 40-year old should be fine dating a 28-year old, but not a 26-year old.

In fact, they should be able to date either. Because both 26-year olds and 28-year olds usually have basically fully developed brains.

So, while the exact criticism that I made was incorrect, the NATURE of the criticism is correct. Mathematical formulas do not capture the developmental concerns that are implicated here.

You going apocalyptic over an understandable math error is amusing. But the tendency for people to make math errors is actually an argument AGAINST a simplistic mathematical rule.

[Jason Cavanaugh]

I was angry about your ignorance, your arrogance, the fact that you doubled-down on a stupid argument, and that you embarrassed our public educators by making such a simple math error.

Go check Nieporent's link. It's remarkable to think someone hasn't ever heard of the "1/2 + 7" guideline.

[wnoise]

Half the older’s age plus 7 as the minimum age for the younger is not at all the same as twice the younger’s age plus 7 being the maximum age for the older. (Reversing to get the maximum older limit would in fact be _subtracting_ 7, and _then_ doubling; or doubling then subtracting 14).

Your cases: 27 / 2 + 7 gives 20.5, not 10. 39/2 + 7 gives 26.5, not 16. 21/2 + 7 gives 18.5. Under this formula the oldest a 16-year old should date would be 18 — which seems within customary norms. And it says the ten year old should not be dating.

[David Welker]

You are correct.

[Zarniwoop]

Maybe you should think more before you invent arbitrary mathematical formulas?

I didn’t invent the so-called “standard creepiness rule”. Here’s a good explainer, with a graph and everything!

https://www.explainxkcd.com/wiki/index.php/314:_Dating_Pools

Run a few examples.

The formula works quite well. See examples in link and other commenters.

It also helps not to mix up * and / in a really simple formula.

[David Welker]

I will concede that I made a math error. However, the rule still sucks.

It implies that there is a problem with a 40-year old dating a 26-year old, but not a 28-year old. But the brain of people of both ages is generally fully developed. The intellectual capacity of a 26-year old is not much different than a 28-year old. And the life experience of the two ages is very similar as well. Their capacity for judging the desirability of a relationship with the 40-year old is more or less complete.

So, while I will admit to misapplying the formula (and the formula doesn't lead to the absurd results I suggested), I still believe it is subject to criticism (as would any other mathematical formula) because it fails to account for the developmental concerns that properly motivate our law.

The reason that we don't want the 34-year old to proposition the 16-year old is not because the 34-year old is "creepy" or "wrong" to be attracted to the 16-year old. (And from a biological perspective, there is no reason for him to not be physically attracted, since 16-year olds can in fact have children... it is not the physical attraction that is problematic, but acting on it.) Instead, it is because the 16-year old needs "breathing room" to grow into an adult and make his or her own decisions without being artificially rushed into them by an outside force who may be seeking to take advantage of their lack of experience.

The same concerns JUST DO NOT APPLY to a 26-year old. At that age, their brain is fully developed and they have had much more life experience.

[Zarniwoop]

It’s not a law. It’s … more of a guideline.

It’s not a law because as a society we generally agree that a 26yo has the right to self-determination and can have sex with any other consenting person of legal age that they desire.

But it is a guideline because at some point, whether you like it or not and whether you agree or not, a lot of folks will look at a 50 year old screwing a 19yo and think “yeah, that’s creepy” (regardless of the genders involved, Mrs. Robinson).

Instead, it is because the 16-year old needs “breathing room” to grow into an adult and make his or her own decisions without being artificially rushed into them by an outside force who may be seeking to take advantage of their lack of experience.

Sure. Perhaps that’s actually one of the reasons society-writ-large gives some serious side-eye to sexual relationships with wide age disparities. It’s not illegal (subject to age-of-consent state laws), but a lot of people can and do think it’s creepy. But age disparities also get less creepy with increased age. As the “rule” .. er, guideline … indicates.

[Zarniwoop]

ope, performing an edit removed the blockquote tag from the paragraph starting with “Instead, it is …”, which is David Welker’s language. Apologies for not catching that before the edit window ended, and for any confusion that might cause.

[David Nieporent]

So, while I will admit to misapplying the formula (and the formula doesn’t lead to the absurd results I suggested), I still believe it is subject to criticism (as would any other mathematical formula) because it fails to account for the developmental concerns that properly motivate our law.

The formula is not about law. It is about what's socially acceptable. And since it's not about law, it's just a general guideline, not a hard and fast "formula" with bright line cutoffs: people in their 40s generally shouldn't be in relationships with people in their 20s. (The guideline is not about sex per se. It's about dating.)

[David Nieporent]

According to your “rule” there is nothing “creepy” about a 27-year old propositioning a 10-year old. Or a 21-year old propositioning a 7-year old.

TF? Can you do math? The 1/2 + 7 rule says that a 27-year old's cutoff is 20½. And a 21-year olds cutoff is 17½.

Maybe you should think more before you invent arbitrary mathematical formulas? Run a few examples.

Um, he didn't invent anything. Did you grow up in a remote Amazonian forest? It's a well-known guideline.

In contrast, a 39-year old coming in and trying to proposition a 16-year old (not creepy, according to you because 16 * 2 + 7 = 39) IS quite properly seen as both inappropriate and predatory.

Again, are you an idiot? A 39 year old's cutoff is 26½.

Do you not understand that ½*A+7 is not the same thing as 2*B+7?

[Zarniwoop]

Cut the other David some slack, he 'fessed up to the math error.

[David Nieporent]

Yeah; I hadn't scrolled that far.

[Daddyhill]

The problem, in my view, has less to do with age and more to do with power and influence. This why we have rules and regulations intended to prevent sexual harassment and coercion in school and in the workplace. My rule, when I was substitute teaching in middle schools and high schools and when I was teaching adult students in community colleges, was always the same: hands off the student body.

We don’t know if Mr. Sebring was a teacher or not, but that doesn’t really matter to me. As an adult and friend of the parents, he should have been able to restrain his (normal) urges to try to engage one or more of these children in sexual activity while a guest in the parents’ home. At the very least, he betrayed the parents’ trust and the trust of the children, who may initially have regarded him as a trustworthy adult, until he started making them uncomfortable in the basement.

[David Welker]

I would also say that talking about “destroying the pussy” of even an adult woman you don’t know is creepy and socially unacceptable behavior. Even if not illegal. It isn’t the sexual desire that is problematic (that is, in fact, natural), but instead the lack of restraint in n expressing it. Perhaps this guy has difficulty distinguishing between pornography and the real world. Sure, in porn, an actor can say anything they want to a complete stranger and that stranger will still want to have sex with them. But in the real world, not so much.

Of course, this wasn’t a stranger. This was someone the guy knew. Pretend she was an adult. That makes the behavior even more problematic.

[Noscitur a sociis]

Why would it have been “even more problematic” to proposition and adult in this way versus a child?