Talk:Ages of consent in the United States

Texas age of consent: references for section 43.25

In a recent revert, @User Yo uheman221q2w3e4r5t: defends a revert, stating "secondary sources take priority by wiki standards and since all of them say 43.25 is for performance then it should be left alone." However, "secondary source" does not imply a highly reliable source, and "primary source" does not imply a less reliable source.

• Per Template:Age_of_consent_pages_discussion_header, a high standard of verification is called for, and references to statutes, case law, and other authorities are specifically encouraged.
• "Case law" has been cited in the Texas age of consent section, e.g. the judicial opinion of the Dornbusch case.
• The statute itself constitutes the primary source of what the law is; a judicial opinion which provides an interpretation of statutory law is thus a secondary source insofar as the meaning of that law is concerned.
• Pages from lawyers' websites are not legal briefs; they are designed to attract customers by providing general information about the law are thus of lower quality; they are not considered legal advice. and they provide only general information. More to the point, lawyers do not purport that they are providing a comprehensive analysis of the laws about which they provide information.
  • In at least one instance, a lawyer's website which is cited includes the text of the statute in question (43.25) without the phrase in contention, i.e. the statue is presented in its pre-1985 form, further supporting my contention that such websites are not reliable sources for the current interpretation of the law.
• A judicial opinion from a relevant appellate court which addresses the interpretation of a statute is the highest possible quality reference for the meaning of a statute, providing the ruling has not been overturned; this is true even if there is widespread consensus that the ruling is wrong, because lower courts are bound to abide by the appellate court ruling.
  • The appellate court opinions cited (e.g. Dornbusch) are referenced in yet other (necessarily more recent) appellate court opinions, giving additional weight to the validity and currency of the cited opinion.
  • Citations of the Dornbusch case in other judicial opinions often present an interpretation in clear, unambigous language, stating in one case (as an example): "The statute, however, 'criminalizes the inducement of a child's sexual conduct regardless of whether it amounts to a sexual performance.' Dornbusch v. State." This eliminates any concern that specialized knowledge would be needed to understand the judicial opinions involved.

The only way to reach a determination that's contrary to Dornbusch (aside from a legislative change to the statute) is a subsequent ruling overturning Dornbusch by an appellate or higher court. Fabrickator (talk) 18:18, 20 February 2017 (UTC)

The application of Texas Penal Code 43.25 does not cover consensual sex with a 17 year old except for the very narrow case of sex in the presence of another person as a key element of the statute requires an "Audience", and one can not be audience to their own actions requiring a third person be present, which is why the judge stated several times that the application of 43.25 is extremely narrow, and the Dornbusch case mentioned involved an incident with a man and two girls, of which he performed a sexual act with while the other was clearly present, making the second girl the "audience" to the sexual conduct and thus making it a sexual performance.

The Fujisaka case is similarly a narrow instence as even though we do not know the outcome of the case except there was 4 counts and assumptively he was convicted as he was sentenced to prison, his case centered around video chats in which the 17 year old masturbated for him on webcam which would make him audience to a unlawful sexual performance as I'm sure live streaming video of a minor engaging in sexual acts is still considered distribution of child pornography thus creating an unlawful act as the courts ruled the online solicitation statute was unconstitutional because it criminalized discussing sex with a minor without intent to commit a unlawful act. Thegunkid (talk) 01:48, 6 February 2019 (UTC)

@User Thegunkid:: Here's the TL;DR version: The claim in the above post that 43.25 does not cover consensual sex with a 17 year old (except in the presence of an "audience") is just wishful thinking. In fact, the claim is unsupported. To put it more bluntly, the claim is false and should be ignored.

Admittedly, there is the additional requirement of inducement, but this is an exceedingly unsafe shield to hide behind. Inducement doesn't require some form of payment or other benefit, consent seems to be almost enough to prove inducement. Both Summers v. State ("a person commits an offense if [he] induces a child younger than 17 years of age to engage in sexual conduct ...") and Dornbusch (the statute "criminalizes the inducement of a child's sexual conduct regardless of whether it amounts to a sexual performance") make clear that an audience is not required if there is inducement. To your credit, you haven't tried to make a claim that you have determined the law to be unconstitutionally vague, or some other legal theory by which you assert a legal defense. I am certainly not claiming that there isn't the possibility of such a defense being successful, but I would suggest that arguing the point of what behavior is within the law, based on the possible success of such a defense, is inadvisable. So I will ask that you cease and desist from making the sort of unsupported statements that you have made here. Fabrickator (talk) 04:09, 7 February 2019 (UTC)

Ok you know what, since apparently Inducement is the key lets actually go into what the court actually stated about inducement in Dornbusch.

"To decide Dornbusch s constitutional challenge, we must determine whether, in common understanding, Dornbusch s alleged conduct brought about V.V. s sexual conduct through persuasion or influence. See Markovich, 77 S.W.3d at 280; Brennman, 45 S.W.3d at 732. It is uncontested that Dornbusch was substantially older than V.V. Also, as an educator at her high school, Dornbusch was in a position of authority over V.V. According to the State s evidence, appellant requested that V.V. and J.R. accompany him on errands away from campus; provided the girls with alcohol, even though they were both minors; drove them to an out-of-town motel on his own initiative; urged them to undress and enter the hot tub with him; and made unsolicited sexual advances in the hot tub and on the motel room bed. In sum, Dornbusch constructed a situation in which V.V. was unlikely to have the ability to refuse his advances: she was miles away from school (where she was supposed to be) and her only alternative to acquiescing to Dornbusch s advances was to call someone to pick her up from an out-of-town motel, after she had consumed alcohol in the middle of a school day. We conclude that a scenario such as this, where a person of authority creates a situation in which a teenager would find it almost impossible to deny a sexual advance, can be fairly considered to constitute inducement in the common understanding of the term. See Markovich, 77 S.W.3d at 280.

We hold that the statute was not impermissibly vague as applied to Dornbusch s conduct. The statute forbids inducement of sexual conduct by a child under eighteen years of age, and according to the State s evidence, Dornbusch did exactly that: he induced (he used persuasion and influence to bring about) V.V. s sexual conduct. See 43.25(b)"

Later on the court reiterated this in denying another point. "We disagree. The proof of guilt is not outweighed by the exonerative evidence cited by Dornbusch. Regardless of whether V.V. consented to the sexual conduct or if Dornbusch never promised her anything in return for sex, the evidence still shows that Dornbusch induced V.V. s sexual conduct by using his position of authority to create a situation in which V.V. was afraid or unable to refuse his sexual advances. Dornbusch seems to read the word induce as meaning force, but we do not equate the terms."

The Dornbusch court also does not foreclose 43.25 being inapplicable for the purposes of sexual conduct if the seventeen year old in question propositioned the adult for sex, simply stating they couldn't rule on it as it was not relevant to the case.

"Dornbusch argues that when considered together, sections 21.11 and 43.25(b) would allow an adult to have legal sex with a seventeen-year-old if the minor initiates the sexual conduct, while an adult who asks a seventeen-year-old for sex could be prosecuted for inducement. See 21.11, 43.25(b). Dornbusch asserts that it is absurd for him to be convicted based on which party initially requested the sexual contact as long as both parties consented.

As a preliminary matter, the evidence does not indicate that Dornbusch was propositioned for sex. To the contrary, the evidence strongly indicates that Dornbusch initiated and induced the sexual conduct. Thus, the instant case does not require this Court to determine whether a criminal offense occurs if a minor initiates sexual contact with an adult."

Remember Dornbusch is a 2005 ruling, Ex Parte Fujisaka was decided in 2015, where the court did explicitly state Seventeen is the age of consent and that 43.25 only criminalizes the act of "inducement".

"Because seventeen years is the age of consent to sexual relations in Texas, and thus speech incidental to such relations would not be categorically excluded from protection under the First Amendment, we agree with appellant that application of section 43.25(b) to the authorization or inducement of seventeen-year-old children to engage in sexual conduct or a sexual performance is the most problematic application of the statute. However, the set of applications where the regulation is problematic is narrowed drastically by the removal of cases involving only conduct as inducement, cases where the speech seeks to induce a criminal act, the statute's scienter requirement that the inducement occur "knowing the character and content thereof," and the affirmative defenses incorporated into the statute. We conclude for the vast majority of its potential applications, section 43.25(b) does not raise issues of constitutional dimension. "

Therefore read together the only act that is unlawful at the very most is an adult inducing a seventeen year old to have sex, which in the facts of the Dornbusch case, the inducement in question was his undue influence. Thegunkid (talk) 08:06, 7 February 2019 (UTC)

@User Thegunkid:: It's a few years since the above comment was added, but leaving things in this form is really quite perplexing, to say the least. The gist of that comment is that an older person using "undue influence" to induce a 17-year-old to have sex is unlawful. In fact, there's nothing whatsoever about "undue influence"... if the speech resulted in consenting to sex, that is the evidence of inducement. The statement in the opinion that 43.25(b) doesn't raise constitutional issues "for the vast majority of its applications" is saying that most of the time, enforcement of 43.25(b) is not going to be blocked on the grounds that the alleged speech is protected. If the sex was all the 17-year-old's idea, that's certainly a good defense, just hope the 17-year-old's testimony is consistent with that.

We should be very cautious about leaving readers with the idea that they're safe from prosecution because they didn't offer to pay. Just say "we could have some fun", that's sufficient to meet the scienter requirement. Fabrickator (talk) 02:52, 17 December 2023 (UTC)

lead paragraph: conflict of civil and criminal law

The lead paragraph of Ages of consent in the United States emphasizes the diversity of jurisdictions in the United States, each with its own set of rules to determine what constitutes lawful and unlawful sexual contact. Notably, the final sentence of the paragraph asserts that civil and criminal laws in a given state may even conflict with each other, possibly leading some to believe that, since conflicting laws could not concurrently be valid, the law must be unconstitutionally vague or otherwise unenforceable.

To make matters worse, for readers who bother to check the footnote for this statement, they will discover it refers to a 2013 paper with a title indicating that the end of the age of consent has been "confirmed" in California.

In spite of the above, California law enforcement officials have continued to charge and prosecute people for "sex with a minor", so evidently, California has not yet reached "the end of the age of consent".

From my perusal of the referenced paper, the focus seems to be court rulings to the effect that minors who are the victims of underage sex by an older person cannot automatically sustain a civil tort against the perpetrator, assuming that the sex was consensual, and therefore the underage sex could not have been a crime to begin with.

The inclusion of this statement in the article, along with its accompanying footnote, is misleading to the reader. I therefore suggest that it ought to be removed. I'd like to hear opinions from others, one way or the other. Fabrickator (talk) 08:32, 15 April 2017 (UTC)

I'm updating this section of the "Talk" page mainly to prevent it from being archived. The misleading content in question, suggesting that courts have ruled that California law allows consensual sex with someone under age 18, is egregious.

Given the article's current structure, I don't think the problems with this article are fixable. I'm merely calling out what is arguably the most flagrant problem in the article, and it therefore provides the strongest basis for a legal finding that would hold Wikipedia liable, perhaps even enjoining the continued operation of Wikipedia. (This may sound like fantasy, but it just takes one instance.)

It will be the more egregious that this risk was identified but not acted on. Keeping in mind that my previous action was to provide a more meaningful warning about this article, and that got reverted, I have done my part. If this comment results in some particularly negative consequences for Wikipedia, so be it. Fabrickator (talk) 20:17, 5 August 2023 (UTC)

Chatgpt explains Texas 43.25: sexual performance by a child

Admittedly, one can sometimes coax chatgpt to give the answer you want. But you know, it's right some of the time.

Q: Is sexual performance or inducement of sexual performance a necessary element to violate Texas 43.25?

A: Texas Penal Code 43.25 defines the offense of "Sexual Performance by a Child," which involves employing, using, persuading, enticing, or coercing a child younger than 18 years of age to engage in sexual conduct, which includes sexual contact, sexual intercourse, and deviate sexual intercourse.

The statute does not require actual sexual performance or inducement of sexual performance as a necessary element to violate the law. The act of employing, using, persuading, enticing, or coercing a child to engage in sexual conduct is sufficient to establish a violation of the statute.

Therefore, a person who employs, uses, persuades, entices, or coerces a child to engage in sexual conduct can be charged with the offense of "Sexual Performance by a Child" in Texas, even if there is no actual sexual performance or inducement of sexual performance involved. Fabrickator (talk) 05:44, 16 February 2023 (UTC)

This issue is also addressed in the discussion of Franklin v. State (2006)" (2-04-551-CR), which concisely points out:

The sexual performance statute itself, as drafted by our legislature, also presents grave issues.   Although “sexual performance” would appear to require a performance, under the statute, a performance is not required.

Fabrickator (talk) 05:25, 19 February 2023 (UTC)

Interesting that you used ChatGPT, or AI, to interpret a Texas state statute. I have not analyzed its interpretation to compare it with the court's or yours.

I used GOOGLE's Bard, AI, to interpret South Carolina's statute 16-3-655 criminal sexual conduct with minors "or is older than the victim" language and depending on how I presented the information Bard would give varying results. Bard says there is an AI available for legal interpretation, but I do not have access to it. I posted on here titled "older than the victim" for feedback. Mrcleanisin (talk) 19:10, 24 June 2023 (UTC)

Delaware Age of Consent

The historic age of consent for Delaware needs to reflect that 7 was for the death penalty as punishment and 10 for life in prison.

https://blogs.lawlib.widener.edu/delaware/2014/07/07/the-age-of-consent-and-rape-reform-in-delaware/ 71.230.186.74 (talk) 15:30, 18 May 2023 (UTC)

Add Romeo and Juliet laws for Montana (for sexual conduct only, not for intercourse)

Montana

The age of consent in Montana is 16 per Montana Code Annotated (2019) section 45-5-625(c). There is an exception for sexual conduct short of intercourse so long as the defendant is no more than three years older than the child. (Mont. Code Ann. § 45-5-502 (2018).) 77.166.93.14 (talk) 12:30, 3 June 2023 (UTC)

 Note: This is quite complicated. I initially misunderstood what you meant, see the edit history of this talk page. The cited section of the Montana Code does not provide a close-in-age exception for the misconduct described there. However, § 45-5-502 does apparently establish a close-in-age provision for what is considered valid consent, but only with reference to itself (i.e. the definition of valid consent provided there is not necessarily universal). I could read more into this topic, but to be honest, I'd rather not right now; it's a bit emotionally taxing. Let's wait for someone else to take a look at this. Actualcpscm (talk) 16:27, 3 June 2023 (UTC)

 Not done: it's not clear what changes you want to be made. Please mention the specific changes in a "change X to Y" format and provide a reliable source if appropriate. Xan747 (talk) 18:13, 1 July 2023 (UTC)

This demonstrates how problematic it can be when we get into the muck and mire of such details, and makes a good case for reverting back to when we were less concerned about many of these details. Here are some of the objections:

* While we can generally verify the applicable statutory wording, identifying a reliable source (and more particularly, an actually credible reliable source) becomes more challenging.

* It is likely to be more difficult to determine that these details have changed. A change in the general age of consent is more likely to receive pertinent news coverage, and much less likely to have a material error.

* It's barely even feasible to cover all the cases. Consider, for incense, the restrictions based on incest. Now imagine a state that completely prohibits incest with certain relatives regardless of age, vs. a state which allows incest subject to the ages of the participants. So in the former case, age of consent is seemingly irrelevant, while in the latter, it's not. Do we mention the incest restriction for only one of these or for both of them?

Even if both partners have reached the general age of consent and both have actually consented, that doesn't guarantee the sex is legal. We can have an overarching description of the nature of certain conditions that might render consensual sex illegal nevertheless, and thus alert the reader that for certain conditions, the fact that consensual sex between two parties who have both reached the general age of consent is not necessarily sufficient to avoid violating the law. Fabrickator (talk) 20:25, 1 July 2023 (UTC)

References

Older than the victim

I have not found any threads on this subject, which is the actual wording in South Carolina's statute 16-3-655.

(2) the actor engages in sexual battery with a victim who is at least fourteen years of age but who is less than sixteen years of age and the actor is in a position of familial, custodial, or official authority to coerce the victim to submit or is older than the victim. However, a person may not be convicted of a violation of the provisions of this item if he is eighteen years of age or less when he engages in consensual sexual conduct with another person who is at least fourteen years of age. Mrcleanisin (talk) 16:25, 24 June 2023 (UTC)

Map legend changed to specify minimum age of consent

Effective with the revision of 17:24, 6 June 2022, the legend on the map of the U.S. was changed from stating that it shows the general age of consent to state that it shows the minimum age of consent for each state. These can't both be true, so was it right before, or is it right now? Fabrickator (talk) 05:56, 18 September 2023 (UTC)

Washington

The table gives 21 as the unrestricted age of consent, but this is contradicted elsewhere in the article. Chemical Engineer (talk) 16:59, 9 January 2024 (UTC)