My Turn: Alan Dershowitz and the age of consent

  • Dershowitz

For the Monitor
Published: 8/4/2019 9:00:13 AM

It has already been a challenging summer for Alan Dershowitz. Now a Fox News favorite, he has been disinvited to cocktail parties on the Vineyard. Then, he was accused by two women of having underage sex with them, all arranged by former client and eugenics (of his own sperm) advocate Jeffrey Epstein.

Compounding the problem is a lengthy profile in the New Yorker, which dug up a 1997 article in which Dershowitz argued that the age of consent to sexual contact should be reduced to 15. That would mean that a 35-year-old teacher could legally have sex with his 15-year-old student (more on that later). The premise for this argument, as I understand it, is that in some states a 15-year-old can legally seek court permission for an abortion. Therefore if she can do that, she possesses enough judgment to constitutionally consent to sex with her teacher.

From a child development standpoint, Dershowitz’s argument is ridiculous. Fifteen-year-olds do not possess the maturity or judgment to consent to sex with adults. A few may think that they do, but for those of us fortunate to spend time with them (which apparently does not include the Dersh), we know that’s a false belief. Their brain growth does not end until their pre-frontal cortex is fully developed at age 25 or so.

From a constitutional perspective Dershowitz’s argument is even sillier. The majority of states (but not all) require either that a parent give permission for the abortion or that a judge approve it (the law in New Hampshire).

There are multiple ways in which the law rightfully restricts the rights of minors in a way that is constitutional. Does Dershowitz contend that 15-year-olds have the right to purchase tobacco or alcohol as part of their constitutionally protected personal autonomy? If they are mature enough to have sex with their teacher, then why shouldn’t they be allowed to drive a car at 15 without an annoying parent sitting in the passenger seat? In short, the Constitution permits society to treat minors differently.

Dershowitz’s column on 15-year-olds appeared more than 20 years ago. He would have done well to just have said he was wrong and that it was a mistake. But Dershowitz seems incapable of apologizing. He almost always attacks. And it’s sad for me to see because he’s the most brilliant lawyer I have ever tried a case with.

There is a silver lining to all of this publicity. Many states, including New Hampshire and Massachusetts, have stubbornly hung on to the age of 16 as the age of consent. This may work when there is a small age difference between the sexual partners but it also covers my 35-year-old teacher example above who abuses his or her power to prey on a vulnerable adolescent student.

New Hampshire should follow the lead of states like Alabama and criminalize sex between any student and his or her teacher (through high school) regardless of the student’s age.

Over the past two years I have represented close to 200 victims of teacher sexual abuse at schools like St. Paul’s (now well on its way to improvement in this area), and while there is civil liability, it is almost impossible to prosecute the teacher because so many of the victims are 16 or older. And the carnage wrought by “consensual” sex between a teacher and a student is horrific and often lifelong.

And while we are at it, let’s make it a crime for therapists to have sexual relations with their child patients, or perhaps all their patients (like Minnesota). There is a imbalance of power in those relationships that is similar to the teacher-student imbalance.

A final step would be for New Hampshire to adopt a so-called “Romeo and Juliet” law that mandates an age difference for prosecution in cases where one of the parties is under 16. That way, a 17-year-old would not be prosecuted for having sex with a 15-year-old, but a 20-year-old could be prosecuted.

It’s time to modernize our ancient consent laws. Thank you, Alan Dershowitz, for putting this on our radar screen.

(Eric MacLeish lives in Holderness, New Hampshire, and is an attorney representing victims of sexual abuse.)


Jobs



Support Local Journalism

Subscribe to the Concord Monitor, recently named the best paper of its size in New England.


Concord Monitor Office

1 Monitor Drive
Concord,NH 03301
603-224-5301

 

© 2019 Concord Monitor
Terms & Conditions - Privacy Policy