As promised, more on the Markel Sex-education licensing proposal

Thanks to MOJ contributors and readers (but not the hijacking robots) for patience and understanding in the delay to follow up on my promise to respond more fully to Professor Dan Markel’s proposal about his sex education licensing proposal for minors. I am particularly grateful to Rob for his understanding as he was the one who raised the Markel proposal on this website.

So, now, let me address the Markel proposal—is teen sex like teen driving? No, it is not.

I’ll begin my elaboration of this position by reiterating points I have made earlier in other postings: does something like the Markel proposal rob children of their childhood? In my estimation, yes. If we accept the Markel proposal and offer children sex-education licenses, why not marriage licenses? Why not grant children the ability to contract? Why should the franchise be restricted to those over the age of eighteen? Why not enable the military to draft at the age of twelve, eleven, ten, or nine? After all there is precedence for this with that reprehensible practice of child soldiers. Childhood exists for a series of important developmental reasons. It is a time of learning basics about human existence; but it is not a time for them to be thrust into the thicket of human experiences that confound many adults. So why should these burdens be placed upon the shoulders of the young who should be learning first principles and having some fun as well?

My second point is this: if a young person took the family car without family authorization and legal authorization even with a license to drive, there would be problems on many fronts. Does the issuance of a license for teen sex eliminate problems? I doubt this for a number of reasons. I begin with the point I have already made: children are being denied their childhood. Second, even though they may have at earlier stages of life the bodies or bodily abilities of adults, they are still children. Have they learned what needs to be learned as a child about courtesy, graciousness, obedience to proper authority, magnanimity, charity, good citizenship, proper manners… and I hasten, the list could go on before they comprehend the intricacies of sexual relations? These young people may be highly intelligent, but do they have the experiences of and wisdom about life fitting to a young person? Highly unlikely.

If you have any doubt about my response to this last question, take a look at some of your law students who are extremely bright but have not yet learned and mastered basic principles of etiquette for inside and outside the classroom, or for that matter, proper grammar, syntax, spelling and punctuation.

If we don’t learn these first principles on other simpler matters when we are supposed to, how can we be ready to accept the responsibility of more weighty matters like appropriate sexual relations. Think of this response to a problem involving sexual involvement of a young person: “Well, I got my license, why can’t I have sex with whomever I want whenever I want wherever I want?” There is a bit more that needs to be learned about life, about human nature, and about human destiny, that’s what.

I have read and reread Professor Markel’s interesting but flawed proposal. After many readings, I just wondered if he thought that young persons are the equal of a person of his years in every regard? If so, this is a flawed assumption. This flaw is exemplified in his subsequent remark that he is “not opposed to say, gay triplets having sex (or marrying) each other, provided certain conditions are satisfied.” I wonder what “conditions” he had in mind since he does not elaborate on what they are or might be? For the time being, I shall put aside the specifics about these triplets as to whether they are identical, fraternal of the same sex, or fraternal of both sexes.

It appears that a primary motivation for his sex-education licensing proposal is to “provide a safe harbor from prosecution for relations with minors.” Well, I am sure that would be a relief to many, including members of our Church, who have been accused and convicted of child molestation. When all is said and done, does the conferral of a license by the State mean that a person of tender years is truly capable of doing something with dramatic and often drastic consequences that result from sexual relations? I realize that Professor Markel puts some limitation on his proposal, but he nevertheless suggests that we might start with children as young as 14 years old who are to receive sex education licenses. Children of this age, and older, may consent to mowing the lawn at one moment but may well rebel at the thought in the next. So what does this say about their ability to consent to sexual relations—be they with other “minors” or with adults, as Professor Markel opines?

His proposal appears to be designed to do one thing: to serve as a defense against prosecution for statutory rape—meaning sexual relations with a person under-age. In my estimation this would be a great comfort to those adults who are sexual predators of the young, but their comfort would entail the peril of our young. The fact that the child has received information about “safe sex, the risks of sexually transmitted diseases, and genetic defects arising from consanguineous relations” is not going to protect young people from themselves or from those who are very capable of preying on their vulnerability. The three conditions that Professor Markel would require may eliminate some of the abuses that I have just listed, but, as lawyers, we know that the ground is quite fertile for legal abuse on many other fronts not addressed by his conditions.

I find his “idea of requiring” the registration of a “joint consent form indicating intent to have sexual relations with a designated public official before the activity happens” fascinating but highly problematic. I begin by raising the matter about enforcement. Who will enforce such a licensing scheme? Moreover, will not civil libertarians be up in arms about the role of the State in enforcing expressions involving such personal matters? And, from a Catholic Legal Theory perspective, does the Markel proposal not drive a further wedge between the proper relations involving supervision and protection of parents or legal guardians and the children entrusted to their protection? Professor Markel raises the question regarding issues about State paternalism, but he says nothing about natural paternal duties and how they will be adversely affected if not destroyed.

His proposal then goes through a series of questions raised by students in his class where the concept of the sex education licensing presumably was raised. For example, the fact that a young person has a sex education license does not mean that he or she will be protected from the vulnerabilities of being a young person who engages in risky sexual conduct. His response begins with an analogy to driver education that prepares a young person to obtain a motor vehicle operator’s license. Motor vehicle licensing also bears its dangers, but it is more attuned to the age of a young person of sixteen or seventeen having an ability to drive a car or other specified kinds of motor vehicles. A person of this age category is being licensed to engage in an activity, i.e., driving a motor vehicle, which bears very different consequences than the consequences of having sex with anyone—male or female regardless of age. Professor Markel does not take account of these distinctions. In his estimation they are the same, but in reality they are not. Driving safely is not to be analogized with “safe sex.” Yet he seems to suggest otherwise.

The mind and mental functions determine how well or poorly a young driver, as well as any driver, operates a motor vehicle. “Hormonal impulses” have nothing to do with driving a car, but, as Professor Markel properly notes, they have a lot to do with having sex. His analogy with motor vehicle licensing must fail because of this distinction alone. Nevertheless, he asserts at this stage that the threat of prosecution for violations of either licensing can serve as a deterrent to their abuse. I am sure that the threat of prosecution for a violation of sex education licensing will be a source of comfort for many victims of rape—conventional or statutory.

Let me comment in just a few words on the analogy of the young pizza delivery server and the child pornography actor. A young person who works in the pizza parlor or in the pizza delivery vehicle is serving a pizza—not himself or herself. I am honestly consoled to know that even Professor Markel has reservations about the use of a sex education licenses to work in the pornography business. While I have my disagreements with researchers like Catherine MacKinnon on other issues, she has clearly demonstrated that those children and women co-opted into becoming pornography actors are often enslaved into a system from which escape is precarious. This may be why Professor Markel states his reluctance about carrying the sex education license to this extreme. Interestingly, he suggests an explanation for a reservation that is not given. My answer to this predicament is that there can be no explanation that would justify sex education licenses that would legitimate child pornography.

Finally, let me offer a thought on his critique of parental notification or vetoes. His position is that there should not be any requirement for parental consent in a sex education licensing scheme as he has presented it. But with the implementation of his proposal, he drives one more stake into the heart of the basic unit of society—the family. When we remove children from the supervision and control of parents that is properly theirs, where will young people turn when they finally realize they have encountered problems to which they have no answers or solutions? That they may carry a sex education license in their wallet affords little comfort and no protection.       RJA sj