The external evolution of criminal law

American Criminal Law Review

Volumn 45, Issue 3, 2008, Pages 1039-1100

  Levine, Kay L ^a  

^a EMORY UNIVERSITY SCHOOL OF LAW   (United States)

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EID: 47249125344     PISSN: 01640364     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (497)

1. E.P. THOMPSON, WHIGS AND HUNTERS: THE ORIGIN OF THE BLACK ACT 250 (1975).
2. For classic treatments of the issue, see generally HERBERT L. PACKER, THE LIMITS OF THE CRIMINAL SANCTION 249-364 (1968);
3. Henry M. Hart, Jr., The Aims of the Criminal Law, 23 LAW & CONTEMP. PROBS. 401 (1958);
4. Sanford H. Kadish, The Crisis of Overcriminalization, 374 ANNALS AM. ACAD. POL. & Soc. Sci. 157 (1967) [hereinafter Kadish, Overcriminalization];
5. Sanford H. Kadish, Some Observations on the Use of Criminal Sanctions in Enforcing Economic Regulations, 30 U. Chi. L. REV. 423 (1963). For more recent discussions,
6. see generally Sara Sun Beale, The Many Faces of Overcriminalization: From Morals and Mattress Tags to Overfederalization, 54 AM. U. L. REV. 747 (2005);
7. William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505 (2001).
8. See, e.g., KENNETH CULP DAVIS, DISCRETIONARY JUSTICE: A PRELIMINARY INQUIRY 49 (1969) (criticizing Congress' overdelegation of discretion to law enforcement);
9. Gerard E. Lynch, Our Administrative System of Criminal Justice, 66 FORDHAM L. REV. 2117, 2137-39 (1998) (arguing legislative action may be too slow to "accommodate rapidly shifting trends in crime");
10. Norman Abrams, Internal Policy: Guiding the Exercise of Prosecutorial Discretion, 19 UCLA L. REV. 1, 2-4 (1971) (reviewing the benefits and burdens of giving prosecutors substantial discretion);
11. Charles D. Breitel, Controls in Criminal Law Enforcement, 27 U. CHI. L. REV. 427, 428 (1960) (discussing the different levels of discretion available in the criminal justice system).
12. See Stuntz, supra note 2, at 569 (arguing that prosecutorial techniques are unable to "cure any ills that overcriminalization might [] produce").
13. W.B. Gallie, Essentially Contested Concepts, 56 PROCEEDINGS OF THE ARISTOTELIAN SOC'Y 167 (1956). A concept is "essentially contested" when it is subject to a number of plausible descriptions of its total worth or meaning. Parties subscribe to different views of the correct use of the concept, and each recognizes that its own view is contested by others. Id. at 171-72. Hence, "to use an essentially contested concept means to use it against other uses and to recognize that one's own use of it has to be maintained against these other uses." Id. at 172.
14. While I call "unstable" those crimes that visibly lack a moral consensus as to harm, in fact even crimes that appear to rest on agreed-upon foundations may, upon closer inspection, exhibit a certain degree of instability in their past application. Modern observers regard robbery, for example, as a serious crime of violence however it occurs; while it can occur in personal or commercial settings, it has long been non-controversially defined as taking property from the person of another by force or fear. See, e.g., CAL. PENAL CODE § 211 (West 2008);
15. STEWART RAPALJE, A TREATISE ON THE LAW OF LARCENY AND KINDRED OFFENSES § 444 (1892);
16. PHILIP J. COOK, ROBBERY IN THE UNITED STATES: AN ANALYSIS OF RECENT TRENDS AND PATTERNS 3 (1983). Yet our English ancestors' experience with robbery was considerably more ambivalent. In eighteenth-century England, highway robbers on horseback sought to distinguish themselves from common, foot-bound robbers on the grounds of gentility, political protest, and courage; they did so in order to gain favor with the courts and to dissuade their victims from pursuing prosecution.
17. See generally Robert B. Shoemaker, The Street Robber and the Gentleman Highwayman: Changing Representations and Perceptions of Robbery in London, 1690-1800, 3 CULTURAL & SOC. HIST. 381 (2006). Others have portrayed certain instances of nineteenth-century robbery as a form of social banditry, or social protest - an income redistribution scheme popularized by the Robin Hood image.
18. See, e.g., ERK HOBSBAWM, BANDITS 19-33 (Rev. Sub. ed., The New Press 2000);
19. Eric Hobsbawm, Social Bandits: Reply, 14 COMP. STUD, IN SOC. & HIST. 503 (1972);
20. Roger A. E. Wells, Social Conflict and Protest in the English Countryside in the Early Nineteenth Century: A Rejoinder, 8 J. PEASANT STUD. 514 (1981). While these competing images of robbers did not alter the formal' law, they likely affected at least some percentage of would-be criminal cases and contributed to a particular understanding of what real robbery was in the minds of many citizens.
21. Stuntz, supra note 2, at 529 n.102 (noting the lack of attention paid to interest group activities in legal scholarship about criminal law-making, except for a few works that address interest group influence on federal criminal law and/or the behavior of federal law enforcement agencies). While the role of community interest groups in inspiring the amendment of drunk driving laws and child sexual abuse laws has been documented, see, e.g., JOHN C. SHEA, AMERICAN GOVERNMENT AND POLITICS 397 (1987) (noting that Mothers Against Drunk Driving (MADD) has been "especially influential" in the campaign to raise the penalties for drunk driving);
22. Amy Adler, The Perverse Law of Child Pornography, 101 COLUM. L. REV. 209, 221 (2001) (describing tile role played by the feminist movement in placing child sexual abuse on the national agenda), this Article examines the role of external influences in changing the meaning of crimes, not just in tinkering with their legislative punishments.
23. See LAWRENCE FRIEDMAN, A HISTORY OF AMERICAN LAW 12 (2d ed. 1985) (regarding law as a mirror for social norms);
24. ISA MCINTYRE, LAW IN THE SOCIOLOGICAL ENTERPRISE: A RECONSTRUCTION 109-35 (1994) (discussing the constitutive effects of law).
25. This topic has also concerned philosophers, see, e.g., FRIEDRICH NIETZSCHE, ON THE GENEALOGY OF MORALS 77 (Walter Kaufman & R.J. Hollingdale trans., Random House 1967), although philosophical treatment of the issue is beyond the scope of this work.
26. For histories of statutory rape enforcement at the turn of the twentieth century, see generally MARY E. ODEM, DELINQUENT DAUGHTERS: PROTECTING AND POLICING ADOLESCENT FEMALE SEXUALITY IN THE UNITED STATES, 1885-1920 (1995);
27. Steven Schlossman & Stephanie Wallach, The Crime of Precocious Sexuality: Female Juvenile Delinquency in the Progressive Era, 48 HARV. EDU. REV. 65 (1978);
28. RUTH M. ALEXANDER, THE "GIRL PROBLEM": FEMALE SEXUAL DELINQUENCY IN NEW YORK, 1900-1930 (1995);
29. STEPHEN ROBERTSON, CRIMES AGAINST CHILDREN: SEXUAL VIOLENCE AND LEGAL CULTURE IN NEW YORK CITY, 1880-1960 73-135 (2006) (discussing protection of females under sixteen years old). For information about statutory rape enforcement at mid-century,
30. see J. Richard Woodworth, The Administration of Statutory Rape Complaints: A Sociological Study (1964) (unpublished Master's Thesis, University of California, Berkeley) (on file with author). For information about recent approaches,
31. see generally Kay L. Levine, The Intimacy Discount: Prosecutorial Discretion, Privacy and Equality in the Statutory Rape Caseload, 55 EMORY L.J. 691 (2006);
32. Michelle Oberman, Turning Girls Into Women: Re-Evaluating Modern Statutory Rape Law, 85 J. CRIM. L. & CRIMINOLOGY 15 (1994);
33. Lynn M. Phillips, Recasting Consent: Agency and Victimization in Adult-Teen Relationships, in NEW VERSIONS OF VICTIMS: FEMINISTS STRUGGLE WITH THE CONCEPT 82 (Sharon Lamb ed., 1999). For works that discuss the multi-generational evolution of phenomena related to statutory rape,
34. see generally KRISTIN LUKER, DUBIOUS CONCEPTIONS: THE POLITICS OF TEENAGE PREGNANCY (1996) [hereinafter LUKER, TEEN PREGNANCY], KRISTIN LUKER, ABORTION AND THE POLITICS OF MOTHERHOOD (1984) [hereinafter LUKER, ABORTION];
35. J. Shoshanna Ehrlich, From Age of Consent Laws to the "Silver Ring Thing": The Regulation of Adolescent Female Sexuality, 16 HEALTH MATRIX 151 (2006).
36. See Stuntz, supra note 2, at 512-23 (discussing the breadth and depth of criminal law);
37. Paul Roberts, Penal Offense in Question: Some Reference Points for Interdisciplinary Conversation, in INCIVILITIES: REGULATING OFFENSIVE BEHAVIOR 1, 14 (Andrew Von Hirsch & A.P. Simester eds., 2006) (arguing criminal law must be limited to what is "strictly necessary" because it is "expensive to enforce and heavy-handed in its methods");
38. see also Austin T. Turk, Prospects for Theories of Criminal Behavior, 55 J. CRIM. L., CRIMINOLOGY & POLICE SCI. 454, 457-58 (1964) (asserting that most criminal acts do not become known and recorded);
39. Kim Forde-Mazrui, Ruling Out the Rule of Law, 60 VAND. L. REV. 1497, 1503-04 (2007) (discussing the nature of enforcement discretion). I use the term "broad" here in the colloquial sense, meaning expansive, not to signify the Constitutional law doctrine of overbreadth.
40. In failing to address consistently one particular danger or social harm, statutory rape law stands in contrast to criminal prohibitions against murder, assault, rape, burglary, and theft, which are typically regarded "logical extensions of individual rights to life, bodily integrity, and security of person and property." Roberts, supra note 10, at 9.
41. THOMPSON, supra note 1, at 209.
42. For more details about these trends, see discussion infra Part II.
43. Reva B. Siegel, "The Rule of Love": Wife Beating as Prerogative and Privacy, 105 YALE L.J. 2117, 2119 (1996). Siegel writes, "When the legitimacy of a status regime is successfully contested, lawmakers and jurists will both cede and defend status privileges-gradually relinquishing the original rules and justificatory rhetoric of the contested regime and finding new rules and reasons to protect such status privileges as they choose to defend." Id.
44. See Kadish, Overcriminalization, supra note 2, at 159 (pointing out the "adverse consequences to effective law enforcement of attempting to achieve conformity with private moral standards through use of the criminal law").
45. Compare William J. Chambliss, A Sociological Analysis of the Law of Vagrancy, 12 Soc. PROBS. 67 (1964) (offering a theory of vagrancy's evolution that closely tracks changes in labor needs),
46. with Jeffrey S. Adler, A Historical Analysis of the Law of Vagrancy, 27 CRIMINOLOGY 209, 217-22 (1989) (discussing the limits of Chambliss' vagrancy theory in the context of midnineteenth-century St. Louis).
47. See RICHARD QUINNEY, THE SOCIAL REALITY OF CRIME 65-70 (2001) (outlining the development of Sunday Blue Laws). See also infra notes 268-69 and accompanying text (arguing that the enforcement of state morality-based or victimless crimes, typically drafted in very broad terms on shaky understandings of legislative purpose, can shift easily in service of changing social goals).
48. 18 U.S.C §§ 1341, 1961-1963 (2006).
49. See Steven E. Soule & Karen R. Weinstein, Recent Developments: Racketeering, Anti-Abortion Protesters, and the First Amendment, 4 UCLA WOMEN'S L.J. 365, 368-69 (1994) (pointing out that RICO has been used against white collar criminals and terrorist groups, an expansion some courts have argued was never intended);
50. Ellen S. Podgor, Tax Fraud-Mail Fraud: Synonymous, Cumulative or Diverse?, 57 U. CINN. L. REV. 903, 903-94 (1989) (describing mail fraud's extension into tax violations). See also infra notes 270-75 and accompanying text (arguing that RICO and mail fraud statutes, because of their broad wording and amorphous goals, have been used to support prosecutions that far exceed the common understanding of these behaviors).
51. My investigation focuses on California because California is one of the only states for which a series of historical statutory rape studies exists. However, where pertinent and available, I include comparative data from other states. These data show that the age of consent laws in other states closely resemble California's in terms of contested harm theories, and that at least some of the practices I identify in California are, or were, common elsewhere. Moreover, California has been recognized as a leader among states in the field of crime and penal policy. See, e.g., CANDACE KRUTTSCHNITT & ROSEMARY GARTNER, MARKING TIME IN THE GOLDEN STATE: WOMEN'S IMPRISONMENT IN CALIFORNIA 8-10 (2005). Despite the geographical concentration of my primary data source, then, this study has broader application.
52. "Social control consists of a normative system with rules about the way people should and should not behave, and a system of formal and informal mechanisms to control deviation from, and promote conformity to, these rules." RONALD L. AKERS, CRIMINOLOGICAL THEORIES: INTRODUCTION, EVALUATION, AND APPLICATION 165 (3rd ed. 2000);
53. see also Albert J. Reiss, Jr., Selecting Strategies of Social Control Over Organizational Life, in ENFORCING REGULATION 23 (Keith Hawkins & John M. Thomas eds., 1984) (defining forms of social control).
54. Given how rare it is for legislatures to repeal even vastly outdated criminal laws, see Stuntz, supra note 2, at 507, many such useless organs likely survive untouched.
55. See Douglas Hay, Property, Authority and the Criminal Law, in ALBION'S FATAL TREE: CRIME AND SOCIETY IN EIGHTEENTH-CENTURY ENGLAND 17, 52-53 (Douglas Hay et al. eds., 1975) (warning of the dangers of giving the impression "that a system of authority is something, rather than the actions of living men");
56. see also MCINTYRE, supra note 7, at 112 ("[L]aw is a resource (and constraint) that must be invoked and directed by people.").
57. See generally ADAM SMITH, AN INQUIRY INTO THE NATURE AND CAUSES OF THE WEALTH OF NATIONS (Regnery Publishing 1998).
58. Hay, supra note 23, at 53.
59. E.P. Thompson argues that people vested with certain powers look for "opportunities to use and to prolong them[;]" changes to the law often result from these opportunities, rather than from any conscious desire to manipulate legal doctrine. THOMPSON, supra note 1, at 214.
60. Here I provide a concise summary of the basic positions in the debate; for the sake of brevity that summary must be overly-simplified. For readers interested in learning more about the philosophical underpinnings or various dimensions of each of these positions, a most comprehensive work is THOMAS J. BERNARD, THE CONSENSUS- CONFLICT DEBATE: FORM AND CONTENT IN SOCIAL THEORIES (1983).
61. EMILE DURKHEIM, THE DIVISION OF LABOR IN SOCIETY 24-25 (W.D. Halls, trans., Free Press 1984).
62. Id. at 26.
63. Durkheim refers to simple, primitive societies as bound together by mechanical solidarity (characterized by homogeneity of population), while complex societies are characterized by organic solidarity (based on dissimilarity and interdependency). Id. at Chs. 2-3.
64. WILLIAM GRAHAM SUMNER, FOLKWAYS: A STUDY OF THE SOCIOLOGICAL IMPORTANCE OF USAGES, MANNERS, CUSTOMS, MORES, AND MORALS (1906);
65. WILLIAM GRAHAM SUMNER, FOLKWAYS AND MORES (1979) [hereinafter SUMNER, FOLKWAYS AND ḾORES].
66. SUMNER, FOLKWAYS AND MORES, supra note 31, at 28-39. Folkways govern such actions as grooming, responding to disease, honoring ancestors, and securing a spouse.
67. Id. at 30.
68. Id. at 36.
69. Id. at 56.
70. Id. at 55.
71. Id. at 77. Sociologist Harry Ball and his colleagues have argued that Sumner's contention should be interpreted to mean that the law cannot change mores quickly or easily, rather than that law is incapable of inducing any social or behavioral changes. Harry V. Ball, George O. Simpson & Kiyoshi Ikeda, Law and Social Change: Sumner Reconsidered, 67 AM. J. SOC. 532 (1962).
72. See, e.g., Kingsley Davis, Sexual Behavior, in CONTEMPORARY SOCIAL PROBLEMS 322 (Robert K. Merton and Robert A. Nisbet eds., 1966) (explaining how sexual norms function to advance collective survival);
73. AWRENCE FRIEDMAN, THE LEGAL SYSTEM: A SOOAL SCIENCE PERSPECTIVE 17-20 (1975) (positing that criminal law, like "every major subsystem in society . . . has its function or mission").
74. AKERS, supra note 21, at 168.
75. GEORGE B. VOLD, THEORETICAL CRIMINOLOGY 204 (1958).
76. Id. at 209.
77. See AKERS, supra note 21, at 169;
78. William J. Chambliss, Introduction: Crime and Conflict Theory, in CRIMINAL LAW IN ACTION 1, 5 (William J. Chambliss ed., 2d ed. 1984);
79. WILLIAM CHAMBLISS & ROBERT SEIDMAN, LAW, ORDER, & POWER 173 (2d ed. 1982) [hereinafter CHAMBLISS & SEIDMAN, POWER].
80. See VOLD, supra note 40, at 208-09 (describing these conflicts as both "deep-seated and fundamental").
81. See QUINNEY, supra note 17, at 43 ("The formation of criminal law is thus an act of politics.").
82. See id. at 16-20 (positing that criminal laws prohibit behaviors "that conflict with the interests of the segments of society that have the power to shape public policy");
83. see also Turk, supra note 10, at 458 (allowing for the possibility that "the more powerful can use the legal process to ascribe the status of criminal to members of the less powerful").
84. See William J. Chambliss, Introduction, in CRIME AND THE LEGAL PROCESS 2, 10 (William J. Chambliss ed., 1969);
85. see also AKERS, supra note 21, at 172.
86. But see QUINNEY, supra note 17, at 75 (contending that the purpose of antitrust legislation was to protect the free-enterprise system from abuse, not to establish a new economic order); see also id at 77 (asserting that pure food and drug laws are an example of how "the public interest may eventually be served in spite of private interests").
87. See AKERS, supra note 21, at 172 ("The core of criminal law-prohibitions of and sanctions for personal violence, destruction of property, fraud, and other predatory crimes-mirrors and protects the interests of the entire society.");
88. see also Roberts, supra note 10, at 9 (pointing out that "prohibitions against murder, assault, rape, burglary and theft . . . have crystallised into common law principles and doctrines").
89. This is not to say that there is widespread agreement about appropriate penalties for such offenses, nor that all forms of dangerous conduct have found their way into the criminal law. See CHAMBLISS & SEIDMAN, POWER, supra note 42, at 173 (arguing that even highly charged crimes can create disagreement as to the appropriate punishment).
90. See QUINNEY, supra note 17, at 86-93 (describing crimes designed to protect "morality and public order");
91. see also Dan M. Kahan, Ignorance of the Law Is an Excuse - But Only for the Virtuous, 96 MICH. L. REV. 127, 151 (1997) (noting that, so long as "there was an essential unity between criminal law and community moral norms" strict application of the "ignorance of the law is no excuse" principle made sense, but this principle ran into conceptual trouble when mala prohibitum crimes entered the legal landscape).
92. Conflict theory also may better describe the origins of "politically or ideologically motivated crimes" than the creation of mala in se crimes. AKERS, supra note 21, at 184-85.
93. See, e.g., Peter H. Rossi, Emily Waite, Christine E. Bose & Richard E. Berk, The Seriousness of Crimes: Normative Structure and Individual Differences, 39 AM. SOC. REV. 224, 225 & n.l (1974);
94. see also Charles W. Thomas, Robin J. Cage & Samuel C. Foster, Public Opinion on Criminal Law and Legal Sanctions: An Examination of Two Conceptual Models, 67 J. CRIM. L. & CRIMINOLOGY 110, 110 (1976).
95. CHAMBLISS & SEIDMAN, POWER, supra note 42, at 172-73.
96. Id. at 174.
97. See, e.g., John Hagan, Why Is There So Little Criminal Justice Theory? Neglected Macro- and Micro-Level Links between Organization and Power, 26 J. RES. CRIME & DELINQ. 116 (1989) (suggesting that theorists must take account of political power and organizational forms when explaining how criminal justice systems and law function);
98. Edmund F. McGarrell and Thomas C. Castellano, An Integrative Conflict Model of the Criminal Law Formation Process, 28(2) J. RES. IN CRIME & DELINQ. 174 (1991) (arguing that, in order to understand the origins of crime and justice legislation, scholars must examine structural foundations, the ways in which crime is experienced, and the events that trigger legislation).
99. "The garbage can model depicts complex organizations in democratic societies as decision-making 'receptacles,' into which heterogeneous members and interest groups 'toss' highly variegated problems, agendas, and solutions. The complex bargaining, shifting coalitions, and multiple agendas that 'fill' the garbage can result in the emergence of often random, accidental, temporary, unintended, unexpected, and even bewildering organizational decisions and goals." Richard A. Wright, A Socially Sensitive Criminal Justice System, in OPEN INSTITUTIONS: THE HOPE FOR DEMOCRACY 142, 144 (John W. Murphy & Dennis L. Peck eds., 1993)
100. (citing M.D. Cohen, J.C. March & J.P. Olsen, A Garbage Can Model of Organizational Choice, 17 ADMIN. SCI. Q. 1 (1972)
101. and C. PERROW, COMPLEX ORGANIZATIONS: A CRITICAL ESSAY (3d ed. 1986)).
102. Hagan, supra note 54, at 116-20;
103. see generally Edmund F. McGarrell, Institutional Theory and the Stability of a Conflict Model of the Incarceration Rate, 10 JUST. Q. 7 (1993) (arguing that the criminal justice system is not tightly controlled by elites at the top, but rather is a decentralized, "loosely coupled" arrangement into which various groups can inject their views and influence and which responds to institutional, economic, and political changes in the landscape).
104. AKERS, supra note 21, at 171.
105. Wright, supra note 55, at 144.
106. Id. at 145.
107. AKERS, supra note 21, at 168 (observing that "functionalist and consensus notions. . . . have been recast and retained in pluralistic conflict theory").
108. MALCOLM SPECTOR & JOHN I. KITSUSE, CONSTRUCTING SOCIAL PROBLEMS (1977). The other significant constructivist work of this decade was Herbert Blumer, Social Problems as Collective Behavior, 18 Soc. PROBS. 298 (1971).
109. SPECTOR & KITSUSE, supra note 61, at 73-76. The authors define social problems as "the activities of individuals or groups making assertions of grievances and claims with respect to some putative conditions." Id. at 75. In a later work, John Kitsuse replaced the term "putative condition" with the term "condition-category, " which he defines as "the terms used by members to propose what the social problem is 'about.'"
110. Peter R. Ibarra & John I. Kitsuse, Vernacular Constituents of Moral Discourse: An Interactions Proposal for the Study of Social Problems, in RECONSIDERING SOCIAL CONSTRUCTIONISM: DEBATES IN SOCIAL PROBLEMS THEORY 25, 30 (James A. Holstein & Gale Miller eds., 1993). The constructivist view countered existing "objectivist" approaches to social problems, which defined social problems in terms of observable social conditions.
111. Joel Best, Introduction: Tarification and Social Problems Construction, in IMAGES OF ISSUES: TYPIFYING CONTEMPORARY SOCIAL PROBLEMS xv, xv-xvii (Joel Best ed., 1989).
112. Indeed, constructivists contend that the assertions made about conditions, rather than the validity of those assertions, is what matters to the development of the social problem. Ibarra & Kitsuse, supra note 62, at 28 ("[T]he theory directs attention to the claims-making process, accepting as given and beginning with the participants' descriptions of the putative conditions and their assertions about their problematic character.") (emphasis in original);
113. see also Blumer, supra note 61, at 301 (arguing that "social problems lie in and are products of a process of collective definition"). This contention is consistent with the principles of social constructionism more generally.
114. Kenneth Gergen, Social Constructionist Inquiry: Context and Implications, in THE SOCIAL CONSTRUCTION OF THE PERSON 3, 6 (Kenneth J. Gergen & Keith E. Davis eds., 1985) ("The degree to which a given form of understanding prevails or is sustained across time is not directly dependent on the empirical validity of the perspective in question, but on the vicissitudes of social processes"). However, it has been criticized for its lack of discrimination: "strict constructionists will recognize no difference between claims about satanism and, say, claims about AIDS."
115. Joel Best, But Seriously Folks: The Limitations of the Strict Constructionist Interpretation of Social Problems, in RECONSIDERING SOCIAL CONSTRUCTIONISM: DEBATES IN SOCIAL PROBLEMS THEORY 129, 136 (James A. Holstein & Gale Miller eds., 1993).
116. SPECTOR & KITSUSE, supra note 61, at 83;
117. see also RAY SURETTE, MEDIA, CRIME AND CRIMINAL JUSTICE: IMAGES AND REALITIES 9 (2d ed. 1998) (explaining the media's role in defining social problems);
118. Eleen A. Baumann, Research Rhetoric and the Social Construction of Elder Abuse, in IMAGES OF ISSUES: TYPIFYING CONTEMPORARY SOCIAL PROBLEMS 55, 65 (Joel Best ed., 1989) (arguing claims-makers have been able to define the nature and possible solutions to the elder abuse problem).
119. SPECTOR & KITSUSE, supra note 61, at 76.
120. See generally Joel Best, "'Road Warriors' on 'Hair-Trigger Highways': Cultural Resources and the Media's Construction of the 1987 Freeway Shootings Problem, 61 SOC. INQUIRY 327 (1991) [hereinafter Best, Road Warriors];
121. Edward Albert, AIDS and the Press: The Creation and Transformation of a Social Problem, in IMAGES OF ISSUES: TYPIFYING CONTEMPORARY SOCIAL PROBLEMS 39, 40 (Joel Best ed., 1989) (noting that claimsmakers in the AIDS arena include scientists, physicians, moral crusaders, afflicted groups, government functionaries, and the public at large).
122. See SPECTOR & KITSUSE, supra note 61, at 92-93. Nonetheless, the claim may represent a much deeper issue, serving as an "expression[] of [a] political, cultural, [or] social disagreements over images, meaning, and behavior."
123. Herman Gray, Popular Music as a Social Problem: A Social History of Claims against Popular Music, in IMAGES OF ISSUES: TYPIFYING CONTEMPORARY SOCIAL PROBLEMS 143, 143 (Joel Best ed., 1989);
124. see also JOSEPH GUSFIELD, SYMBOLIC CRUSADE: STATUS POLITICS AND THE AMERICAN TEMPERANCE MOVEMENT (1963) (arguing that during the Prohibition Era, alcohol consumption was a signal of social status, and Prohibitionists were actually fighting to maintain their social status as against newly powerful groups in society).
125. Albert K. Cohen & James F. Short, Jr., Crime and Juvenile Delinquency, in CONTEMPORARY SOCIAL PROBLEMS 89, 98-99 (Robert K. Merton & Robert Nisbet eds., 1971).
126. Best, Road Warriors, supra note 66, at 333 (citing William Gamson & Andre Modigliani, Media Discourse and Public Opinion on Nuclear Power, 95 AM. J. SOC. 1, 3 (1989));
127. see also Surette, supra note 64, at 9 (noting that "[t]he social roles and ideologies of claims-makers affect their characterization of problems; where moralists see sin, medical authorities detect disease, and criminal justice personnel see crime").
128. See Baumann, supra note 64, at 56 (noting that, in the context of elder abuse, "many investigators who studied or wrote [about the problem] were affiliated with agencies providing social services to the elderly or with applied research centers, . . . schools of public health, social work, or applied science; or family violence research centers").
129. Surette, supra note 64, at 9.
130. Joel Best, Dark Figures and Child Victims: Statistical Claims about Missing Children, in IMAGES OF ISSUES: TYPIFYING CONTEMPORARY SOCIAL PROBLEMS 21, 32 (Joel Best ed., 1989);
131. see also Baumann, supra note 64, at 62 (pointing out how claims-makers have used statistics to define the problem of elder abuse as one "of great magnitude"). If statistics challenge established interests, they may be met with some resistance, but where no such interests exist, the statistics are more likely to be readily accepted.
132. See Best, supra, at 33.
133. SPECTOR & KITSUSE, supra note 61, at 8.
134. See, e.g., Ronald Troyer, The Surprising Resurgence of the Smoking Problem, in IMAGES OF ISSUES: TYPIFYING CONTEMPORARY SOCIAL PROBLEMS 159, 168 (Joel Best ed., 1989) (noting that "social problems do not automatically follow a cycle of birth, growth, maturity, decline, and death");
135. Gray, supra note 67, at 152-55 (describing the industry response to "the growing public controversy over music lyrics").
136. See SPECTOR & KITSUSE, supra note 61, at 83.
137. Best, Road Warriors, supra note 66, at 335
138. (citing William Gamson and Andre Modigliani, Media Discourse and Public Opinion on Nuclear Power, 95 AM. J. SOC. 1, 5 (1989));
139. See also Surette, supra note 64, at 14-15 (citing PHILLIP JENKINS, USING MURDER: THE SOCIAL CONSTRUCTION OF SERIAL MURDER (1994)).
140. See, e.g., John M. Johnson, Horror Stories and the Construction of Child Abuse, in IMAGES OF ISSUES: TYPIFYING CONTEMPORARY SOCIAL PROBLEMS 5 (Joel Best ed., 1989).
141. Cohen and Short, supra note 68, at 99.
142. Surette, supra note 64, at 7;
143. see generally CRIMINAL VISIONS: MEDIA REPRESENTATIONS OF CRIME AND JUSTICE (Paul Mason ed., 2003). "The images of problems depend, in part, on the primary claimsmakers' interests and ideology, the constraints imposed by the media's routines, and the rhetoric adopted in making both primary and secondary claims."
144. Best, supra note 66, at 327-28 (citing JOEL BEST, THREATENED CHILDREN (1990)).
145. Johnson, supra note 77, at 10-11.
146. See id. at 11. Baumann notes that professional and academic claim-makers also favor "atrocity" tales, for much the same reason.
147. Baumann, supra note 64, at 61-62.
148. Johnson, supra note 77, at 16. The media might also be a primary claims-maker; if news agents discover me issue by piecing together seemingly unrelated bits of information, they can construct the social problem unilaterally and create the sense of urgency.
149. Best, Road Warriors, supra note 66, at 329.
150. See Albert, supra note 66, at 40 (using the AIDS epidemic as an example). However, media preference for a particular construction may change over time. Id. at 50.
151. See William J. Staudenmeier, Jr., Urine Testing: The Battle for Privatized Social Control during the 1986 War on Drugs, in IMAGES OF ISSUES: TYPIFYING CONTEMPORARY SOCIAL PROBLEMS 207, 209 (Joel Best ed., 1989) ("In the United States, the mass media provide a major forum for claims-making - a forum used consciously by a variety of individuals, groups, and institutions.").
152. See Johnson, supra note 77, at 11, 16.
153. See, e.g., CAL. PENAL CODE § 261.5(a)-(d) (West Supp. 2006) (making it a crime for anyone to have intercourse with a person under the age of eighteen who is not that person's spouse). The statute, once drafted as a prohibition on any man having intercourse with an underage female not his wife, became gender-neutral in 1993.
154. See Mark Gladstone & Daniel M. Weintraub, New Law Broadens the Provisions of Statutory Rape Legislation: The 'Gender-Neutral' Statute Provides Stronger Punishment for Women Who Have Sex with Underage Boys, L.A. TIMES, Oct. 2, 1993, at B5. For a summary of statutory rape laws in other states,
155. see SHARON G. ELSTEIN & NOY DAVIS, SEXUAL RELATIONSHIPS BETWEEN ADULT MALES AND YOUNG TEEN GIRLS: EXPLORING THE LEGAL AND SOCIAL RESPONSES 47-70, app. D (1997).
156. See Gallie, supra note 5.
157. A much condensed version of this history appears in Kay L. Levine, No Penis, No Problem, 33 FORDHAM URB. L. J. 357, 373-78 (2006).
158. WILLIAM BLACKSTONE, 4 COMMENTARIES *210-13;
159. see also ODEM, supra note 9, at 13. Rape was defined during this period as nonconsensual sexual intercourse accomplished with a female by force or in the face of utmost resistance.
160. See BLACKSTONE, supra;
161. Anne M. Coughlin, Sex and Guilt, 84 VA. L. REV. 1, 11-15 (1998). The charge of statutory rape eliminated the need for the state to prove either force or resistance, as it presumed nonconsent based on the victim's age.
162. This was codified first in section 47 of the Crimes and Punishments Act of 1850, and then in Penal Code section 261(1) in 1872. CAL PENAL CODE § 261 (West 2002). California was by no means alone in setting the age of consent at ten. In 1885, thirty-five other states had a similar rule, while nine states set the age of consent at twelve. In Delaware, the age of consent was seven.
163. ODEM, supra note 9, at 14 tbl. 1. By way of comparison, during this era child labor laws often set the minimum age of employment between nine and fourteen.
164. JOSEPH KETT, RITES OF PASSAGE: ADOLESCENCE IN AMERICA, 1790 TO THE PRESENT 90 (1977).
165. See ODEM, supra note 9, at 19-24;
166. see also Sara McLean, Confided to His Care or Protection: The Late Nineteenth-Century Crime of Workplace Sexual Harassment, 9 COLUM. J. GENDER & L. 47, 49-51 (1999) (putting into historical context the "implications for sexual independence and injury" brought on by the move from "home to work").
167. See generally Reva Siegel, Home as Work: The First Women's Rights Claims Concerning Wives' Household Labor, 1850-1880, 103 YALE L. J. 1073 (1994).
168. LUKER, TEEN PREGNANCY, supra note 9, at 31 ;
169. Linda Gordon, Why Nineteenth Century Feminists Did Not Support "Birth Control" and Twentieth Century Feminists Do: Feminism, Reproduction, and the Family, in RETHINKING THE FAMILY: SOME FEMINIST QUESTIONS 40 (Barrie Thome and Marilyn Yalom eds., 1992);
170. ARROLL SMITH-ROSENBERG, DISORDERLY CONDUCT: VISIONS OF GENDER IN VICTORIAN AMERICA 109-28, 217-44 (1985).
171. See ODEM, supra note 9, at 22;
172. see also ROBERTSON, supra note 9, at 100.
173. See supra note 90 and accompanying text.
174. The tensions posed by girls' newfound independence existed on both coasts. See ROBERTSON, supra note 9, at 77 (describing the situation in New York).
175. See Odem, supra note 9, at 11-32;
176. see also ROBERTSON, supra note 9, at 87-89. The social purity activists targeted three sexuality issues: sexually active girls, prostitution, and sex education. Many purity reformers also worked on issues such as temperance, suffrage, eugenics, vice, and obscenity.
177. See Kristin Luker, Sex, Social Hygiene and the State: The Double-Edged Sword of Social Reform, 27 THEORY AND SOC'Y 601, 606 (1998) [hereinafter Luker, Double-Edged Sword].
178. See ROBERTSON, supra note 9, at 97-98 (describing how statutory rape would "ruin" young women). The drive to reform the age of consent may also have been motivated in part by a desire to reduce workplace sexual harassment.
179. Jane E. Larson, Even a Worm Will Turn at Last: Rape Reform in Late Nineteenth-Century America, 9 YALE J. L. & HUM. 1, 4 (1997).
180. During the beginning of this period the age of consent for marriage for California women was fifteen. CAL. CIVIL. CODE § 56 (current version, as amended, at CAL. FAM. CODE § 301 (2000)). However, female teens between fifteen and seventeen (and males between eighteen and twenty) needed a parent's consent to marry in order for the county clerk to issue the marriage license. CAL. Crvn. CODE § 69(4) (repealed 1969). By way of comparison, during this era child labor laws often set the minimum age of employment between nine and fourteen.
181. See KETT, supra note 90, at 90.
182. Not all judges and attorneys thwarted the efforts of the social purity activists; a few spoke out against the double standard of morality and chastised young male offenders for taking advantage of minor females. See ODEM, supra note 9, at 74.
183. See ODEM, supra note 9, at 71;
184. see also Marsha Greenfield, Protecting Lolita: Statutory Rape Laws in Feminist Perspective, 63 WOMEN'S L.J. 1, 8-9 (1977);
185. Wendy W. Williams, The Equality Crisis: Some Reflections on Culture, Courts and Feminism, 7 WOMEN'S RTS. L. REP. 175, 176-77 (1982);
186. Michelle Oberman, Regulating Consensual Sex with Minors: Defining a Role for Statutory Rape, 48 BUFF. L. REV. 703, 754-55 (2000);
187. see also PAMELA HAAG, CONSENT: SEXUAL RIGHTS AND THE TRANSFORMATION OF AMERICAN LIBERALISM 4-5 (1999) (noting that a master could claim damages for seduction of his female servant because he suffered the loss of her character and reputation, yet she had no rights to claim any personal losses). The emphasis placed on the victim's chastity was consistent with the broader understanding of women's sexual consent in the nineteenth century. Under then-prevailing norms, women who had sex outside of marriage were assumed to have consented, in the absence of proof that they had been physically coerced. Coughlin, supra note 89, at 12 ("[C]ourts promulgated definitions of the nonconsent and force elements that excluded virtually all instances of male sexual aggression other than those involving serious forms of physical violence."). Yet consensual intercourse outside of marriage was also criminally punishable, under the laws proscribing fornication and adultery. As a result, women might have needed to establish the force component of rape in order to defend themselves from charges of fornication or adultery for sexual encounters that men claimed were consensual. In other words, "nonconsent was the element that distinguished the man's crime (rape) from the couple's crime (fornication or adultery)." Id. at 27. Yet as Pamela Haag has argued, during this era the concepts of consent and coercion were not opposites; in fact, at least one court in a seduction case heard the argument that the victim was "compelled to consent" by the man's repeated entreaties and threats.
188. HAAG, supra, at 7-9. In sum, when it came to sex, women were free neither to consent nor to refuse in any meaningful way.
189. In one case (in which the charge was seduction), the judge proclaimed, "The girl has nothing to do with this case. It is the father's rights you are trying here." HAAG, supra note 101, at 5 (quoting Gibble v. Bollinger, 21 LANCASTER REV. 268 (1899-1900)).
190. For some the law was best used to force the man to marry his teenage conquest: marriage recast the sexual encounter "as a courtship, thereby resituating what had happened within the boundaries of respectability" and "shift[ed] the burden of providing for the girl from her family to the man who had ruined her." ROBERTSON, supra note 9, at 101. Just two decades later, Progressive researchers thought that marriages entered into "casualty] and irresponsibl[y]" to provide cover for cohabitation or early pregnancy caused more harm than good, as many women later charged with delinquency were found to have such marriages in their backgrounds. SHELDON & ELEANOR T. GLUECK, FIVE HUNDRED DELINQUENT WOMEN 94 (1934).
191. See ODEM, supra note 9, at 74.
192. Id. at 78. See also ROBERTSON, supra note 9, at 78-79, 83, 122-29.
193. See ROBERTSON, supra note 9, at 109, 113.
194. Thirty-two states enacted laws that allowed for the detention of any woman "reasonably suspected" of carrying venereal disease; a woman could be arrested and detained without bail until an examination proved her disease-free. Such policies resulted in the detainment and quarantine in prison-like facilities of more than 18,000 young women during World War I. ODEM, supra note 9, at 124-26;
195. see also Luker, Double-Edged Sword, supra note 97 (describing the Federal government's implementation of new, national policies regulating sexuality to protect soldiers from unmarried women). The spread of disease was not the only danger these young women were thought to pose. Some legislators also argued that "unchaste and designing young women would inveigle young men into illicit relations and then use the law to extort blackmail from them."
196. ROBERTSON, supra note 9, at 89 (internal quotations omitted);
197. see also ODEM, supra, at 33 ("Legislators in other parts of the country assigned the image of female depravity to working-class women, depicting working girls, servants, and prostitutes as licentious seducers of men."). Others pointed to a correlation between sexual delinquency and other types of misbehavior, noting that such behaviors tended to begin at about the same time in a girl's life.
198. GLUECK, supra note 102, at 90;
199. PAUL W. TAPPAN, DELINQUENT GIRLS IN COURT: A STUDY OF THE WAYWARD MINOR COURT OF NEW YORK 27 (1969).
200. To be branded immoral, an unmarried female need not have been sexually experienced; she need only to have signaled, through her appearance or demeanor, that "she had probably had intercourse in the past or might do so in the near future." Schlossman & Wallach, supra note 9, at 72;
201. see also GLUECK, supra note 102, at 85-86, ch. 5;
202. TAPPAN, supra note 106, at 32-35. Daughters of immigrant families were particularly likely to cause concern, as Progressives were inclined to regard "cultural patterns of behavior" with which they were unfamiliar as indicia of sexual experience.
203. Schlossman & Wallach, supra.
204. See ODEM, supra note 9, at 95-127;
205. Luker, Double-Edged Sword, supra note 97, at 605-06. Bad environmental influences included streetwalkers, drunks, pickpockets, bootleggers, idlers and "like shady companions,"
206. GLUECK, supra note 102, at 85, but the greatest threat may have been posed by family itself. In one study of girls charged with immorality in Cook County, Illinois, the vast majority came from homes where a female guardian or relative was (as characterized by the researchers) either implicated in the girl's offense or responsible for it, due to prostitution, immoral or questionable character, or low moral standards. SOPHONISBA P. BRECKENRTDGE & EDITH ABBOTT, THE DELINQUENT CHILD AND THE HOME 107-08 (1912).
207. Ehrlich, supra note 9, at 160
208. (citing Schlossman & Wallach, supra note 9, at 75-80 and ODEM, supra note 9, at 115).
209. See ODEM, supra note 9, at 157-84;
210. TAPPAN, supra note 106, at 36 n.15, 95 (noting that a parent might file a juvenile court report against his or her daughter to acquire her wages, to break up a relationship with an inappropriate man, or to vindicate the mother's jealousy caused by perceived sexual competition from her daughter).
211. ODEM, supra note 9, at 5. As in previous decades, the use of the court system usually followed the failure of informal means of social control. See ROBERTSON, supra note 9, at 105.
212. See supra note 106.
213. See ODEM, supra note 9, at 146, 155-56.
214. Schlossman & Wallach, supra note 9, at 72-73, document similar disparate treatment imposed by the Progressive Era juvenile courts in the Midwest. For similar results from other jurisdictions,
215. see Randall G. Shelden, Sex Discrimination in the Juvenile Justice System, Memphis, Tennessee, 1900-1917, in COMPARING FEMALE AND MALE OFFENDERS 55, 67-70 (Marguerite Q. Warren ed., 1981) (documenting Memphis),
216. and ALEXANDER, supra note 9 (documenting New York).
217. See generally ROBERT R. BELL, PREMARITAL SEX IN A CHANGING SOCIETY (1966); ODEM, supra note 9;
218. UKER, TEEN PREGNANCY, supra note 9.
219. See also supra notes 100, 102 (documenting the role of families and me criminal courts in encouraging marriage following a statutory rape).
220. SHARON THOMPSON, GOING ALL THE WAY: TEENAGE GIRLS' TALES OF SEX, ROMANCE AND PREGNANCY 21 (1995).
221. GWENDOLYN MINK, THE WAGES OF MOTHERHOOD: INEQUALITY IN THE WELFARE STATE, 1917-1942 143 (1995); MIMI ABRAMOVTTZ, REGULATING THE LIVES OF WOMEN: SOCIAL WELFARE POLICY FROM COLONIAL TIMES TO THE PRESENT 321 (1988).
222. From 1948 to 1953, the number of widowed mothers on ADC dropped by twenty-five percent, while the percentages of unwed mothers and deserted/separated mothers rose by almost sixty percent and twenty-eight percent respectively. ABRAMOVITZ, supra note 116, at 321;
223. see also ELLEN REESE, BACKLASH AGAINST WELFARE MOTHERS: PAST AND PRESENT 37-40 (2005) (outlining the postwar expansion of welfare).
224. For a comprehensive picture of the changing nature of ADC and its caseload in the mid-twentieth century, see BUREAU OF PUBLIC ASSISTANCE, ILLEGITIMACY AND ITS IMPACT ON THE AID TO DEPENDENT CHILDREN PROGRAM (1960);
225. REESE, supra note 117, at 27.
226. REESE, supra note 117, at 38. This propaganda worked: by 1960, the attitude of the general public toward ADC families was "confused, accusing, and hostile." Id.
227. The birth rate per 1000 unmarried women increased from 7.1 in 1940 to 14.2 in 1950 and to 20.9 in 1957. MINK, supra note 116, at 144 & n.57 (citing U.S. DEP'T OF HEALTH, EDUC. AND WELFARE, NAT'L OFFICE OF VITAL STATISTICS, ILLEGITIMATE BIRTHS 1938-147: VITAL STATISTICS - SPECIAL REPS., SELECTED STUDIES (1950)).
228. See MINK, supra note 116, at 143-44;
229. Julius Paul, The Return of Punitive Sterilization Proposals: Current Attacks on Illegitimacy and the AFDC Program, 3 LAW & SOC'Y REV. 77, 95 (1968);
230. WALTER I. TRATTNER, FROM POOR LAW TO WELFARE STATE: A HISTORY OF SOCIAL WELFARE IN AMERICA 144 n.4 (6th ed. 1999) ("[T]he presence of a man automatically made a home 'unsuitable' and was considered evidence that financial need did not exist, regardless of who the man was, his economic situation, or his relationship to the family."). Many states enacted "substitute father" or "man of the house" rules that denied aid to mothers if there was an able-bodied man living under her roof, irrespective of the length or quality of their relationship. Some states required applicants to sign pledges not to have male callers come to the home, and four southern states passed laws to exclude from welfare coverage children born out of wedlock, as a way to punish and deter non-marital intercourse by women on welfare.
231. See REESE, supra note 117, at 41-42.
232. For a full assessment of these laws, see generally Paul, supra note 121.
233. ABRAMOVTTZ, supra note 116, at 319;
234. see also REESE, supra note 117, at 23-32.
235. For an extensive discussion of the ways in which these early age of consent reforms incorporated class and race issues, as well as gender concerns, see ODEM, supra note 9, at 186-87.
236. See REESE, supra note 117, at 24. In the mid-1960s, inspired by President Johnson's "War on Poverty," analysts pointed to the "excess fertility" of poor, urban single mothers as a significant factor in producing poverty and welfare dependency; pregnancy prevention programs for targeted populations (in the form of Title X family planning services and subsidized birth control) and increased oversight of welfare disbursements soon followed.
237. UKER, TEEN PREGNANCY, supra note 9, at 56-59;
238. Ehrlich, supra note 9, at 161-62 (citing The Alan Guttmacher Institute, Facts in Brief, Title X and the U.S. Family Planning Effort (1997),available at http://www.guttmacher.org/pubs/ibl6.html).
239. For example, one state representative from Mississippi wrote in 1958: "The negro woman, because of child welfare assistance, [is] making it a business, in some cases, of giving birth to illegitimate children." Paul, supra note 121, at 89 (citing Letter from Mississippi State Rep. David H. Glass to Julius Paul (Oct. 11, 1958)).
240. For non-whites, the birth rate per 1000 unmarried women was 168.3 in 1940 and 179.6 in 1950; it rose to more than 200 in 1957. Among unmarried white mothers, the comparable rates were 19.5, 14.2, and 19.6, respectively. MINK, supra note 116, at 144 & n.57 (citing U.S. DEP'T OF HEALTH, EDUC. AND WELFARE, NAT'L OFFICE OF VITAL STATISTICS, ILLEGITIMATE BIRTHS 1938-147: VrrAL STATISTICS - SPECIAL REPS., SELECTED STUDIES (1950)). While the non-marital birth rate was rising for all women, the sheer numbers of births to unmarried non-white women, and the rate of increase in less than twenty years, were considered by some to be "an onerous burden[.]"
241. Paul, supra note 121, at 89 n. 17 (citing Letter from Hodding Carter, editor and publisher of the Delta Mississippi Democrat-Times, to Julius Paul (Sept. 26, 1958)).
242. MINK, supra note 116, at 145.
243. Paul, supra note 121, at 100.
244. Id.;
245. see also Buck v. Bell, 274 U.S. 200 (1927) (upholding the use of the Virginia eugenic sterilization statute for those with mental illness, mental deficiency, and epilepsy).
246. REESE, supra note 117, at 41. During this same period, seventy-three percent of respondents to a Gallup poll felt it was a "a good idea . . . to get a court order to require the mother of an illegitimate child to name die father and men require him to pay the extra relief costs for the child." Id. at 62.
247. ABRAMOVITZ, supra note 116, at 322. Provisions requiring welfare mothers to cooperate in paternity establishment and child support prosecutions, originating with NOLEO, were stiffened through a series of laws passed in 1968, 1974, 1984, and 1988.
248. REESE, supra note 117, at 192 n.150.
249. If notified of a welfare application filed by an adult woman whose children had been abandoned by their father, the state government would criminally prosecute the "deadbeat dad" for failure to pay child support. Paul, supra note 121, at 79, n.3.
250. See generally JYL JOSEPHSON, GENDER, FAMILIES AND STATE: CHILD SUPPORT POLICY IN THE UNITED STATES (1997).
251. Woodworth, supra note 9, at 140.
252. Id. at 27.
253. See id at 58-59.
254. Id. at 21.
255. Id. at 36.
256. Id at 35.
257. Id. at 61-62, 82. For California as a whole, African-Americans and Caucasians were equally likely to receive jail sentences (forty-seven percent of African-American defendants and forty-six percent of Caucasian defendants received jail terms), but a greater percentage of Caucasians were sent to prison (seven percent of Caucasians compared to two percent of African-Americans). Latinos appeared to be the most disadvantaged; a larger percentage of Latino defendants than of African-American or Caucasian defendants received jail terms, and Latinos were the least likely demographic group to receive a term of probation with no custody. Id at 83.
258. One officer remarked that he was particularly bothered by "[Negroes'] absolute lack of morality;" another asserted that blacks have low morals and "don't try to lift themselves from the gutter." Id. at 83.
259. Woodworm's research indicates that the cases involving African-Americans were generally stronger than the cases involving Caucasians because they were more likely to involve a pregnancy, to include statements about paternity, or to have a victim willing to prosecute. Id. at 61-63.
260. Id at 55 (quoting CAL. WELF. & INST. CODE § 602).
261. Id at 59-63.
262. This attribution held even where the evidence against the male was insufficient to support a criminal charge or the victim's parents refused to prosecute him. Id. at 56-57.
263. Id at 90.
264. Juvenile females in other states also were more likely than males to be referred to the juvenile court for status offenses, petitioned for formal court action, detained pretrial, and incarcerated at the close of the case. See Donna M. Bishop & Charles E. Frazier, Gender Bias in Juvenile Justice Processing: Implications of the JJDP Act, 82 J. CRIM. L. & CRIMINOLOGY 1162, 1163 & n.8 (1992).
265. Bureau of Criminal Justice Statistics' files on adult and juvenile arrests for PC 261.5 and disposition of adult arrests for PC 261.5. The limitations of this data source are extensively discussed in Kay Leslie Levine, Prosecution, Politics and Pregnancy: Enforcing Statutory Rape in California, Chapter 2 (2003) (unpublished Ph.D. dissertation, University of California at Berkeley) (on file with author).
266. In 1961, for example, there were 856 statutory rape arrests statewide. Woodworth, supra note 9, at 133. There were 643 arrests, on average, for each year between 1991 and 1995. Bureau of Criminal Justice Statistics' files on adult and juvenile arrests for PC 261.5 and disposition of adult arrests for PC 261.5.
267. Woodworth, supra note 9, at 135, 138.
268. For each year between 1991 and 1995 California prosecutors filed, on average, 313 complaints and convicted, on average, 277 offenders. Bureau of Criminal Justice Statistics' files on adult and juvenile arrests for PC 261.5 and disposition of adult arrests for PC 261.5.
269. The incidence of teenage births might indicate the frequency with which minor females are engaging in sexual intercourse, but exclusive reliance on teen birth rates might cause us to either underestimate or overestimate the incidence of statutory rape. First, not every incident of sexual intercourse results in a birth. Irma T. Elo et al., Adolescent Females: Their Sexual Partners and the Fathers of Their Children, 61 J. MARRIAGE & FAM. 74, 82-83 (1999).
270. On the other hand, not every birth to a teenage girl results in a prosecutable case of statutory rape because the crime does not get reported or because the partner is underage himself. See Janet B. Hardy & Anne K. Duggan, Teenage Fathers and the Fathers of Infants of Urban, Teenage Mothers, 78 AM. J. OF PUB. HEALTH 919, 921 (1988). The enforcement of statutory rape where both participants are juveniles is not a priority among California prosecutors. OFFICE OF CRIMINAL JUSTICE PLANNING, STATUTORY RAPE VERTICAL PROSECUTION, PROGRAM GUIDEUNES (2001) [hereinafter SRVPP GUIDELINES 2001];
271. RANDY BONNELL, OFFICE OF CRIMINAL JUSTICE PLANNING, AN EVALUATION OF STATUTORY RAPE VERTICAL PROSECUTION PROGRAM (2001).
272. Notably, this trend runs counter to Californians' feelings about crime overall during this period. Surveys and population studies document a general lack of interest in crime as a social problem during the 1960s but report an upsurge that began in the 1970s and continued into the 1990s. KRUTTSCHNITT & GARTNER, supra note 20, at 12-20.
273. See, e.g., Francis Olsen, Statutory Rape: A Feminist Critique of Rights Analysis, 63 TEX. L. REV. 387 (1984);
274. Oberman, supra note 9, at 29. This argument did not persuade did Supreme Court, which found that gender-based statutory rape laws did not violate equal protection in Michael M. v. Superior Court, 450 U.S. 464 (1981).
275. Olsen, supra note 155, at 405-06.
276. For California's amendment history, see Gladstone & Weintraub, supra note 86;
277. Karen Nikos, Bill Would Apply California Law on Statutory Rape to Both Sexes, DALLAS MORNING NEWS, Mar. 14, 1993, at A7. Of course, some states adopted gender neutral language before th Michael M. decision (e.g., Utah, UTAH CODE ANN. 1953 §76-5-401(adopting gender neutral language in 1979); Vermont, VT. STAT. ANN. tit. 13 § 3252 (1977);
278. and Virginia, VA. CODE ANN. §§ 18.2-67.3 (1975)). As of the writing of this Article, all states and the federal government include gender neutral language in their age of consent legislation.
279. See Franklin E. Zimring, The Common Thread: Diversion in the Jurisprudence of Juvenile Courts, in A CENTURY OF JUVENILE JUSTICE 142, 143 (Margaret Rosenheim et al. eds., 2002) ("[D]iversionary principles of juvenile justice are well suited both to a modern theory of adolescent development and to principles of procedural fairness and proportionality in legal response to youth crime.").
280. See, e.g., In Re Gault, 387 U.S. 1 (1967).
281. The Juvenile Justice and Delinquency Prevention Act of 1974 § 5032, 42 U.S.C. § 5601 (West 1998);
282. see also Zimring, supra note 158, at 151 (describing the reforms of the JJDP Act);
283. Bishop & Frazier, supra note 148, at 1166 (observing the effects of the JJDP Act).
284. While the JJDP was meant to keep justice officials from engaging in the protectionist policies of past generations, oftentimes girls' precocious behavior was simply reclassified under criminal statutes to give the courts jurisdiction. Anne Rankin Mahoney & Carol Fenster, Female Delinquents in a Suburban Court, in JUDGE, LAWYER, VICTIM, THIEF: WOMEN, GENDER ROLES AND CRIMINAL JUSTICE (Nicole Hahn Rafter & Elizabeth Anne Stanko eds., 1982);
285. Daniel J. Curran, The Myth of the New Female Delinquent, 30 CRIME & DEUNQ. 386 (1984). Moreover, any status offender found in contempt of a court's order still could be institutionalized, and at least one study indicates that contempt proceedings have often been used for this purpose with female adolescents. Bishop & Frazier, supra note 148, at 1167, 1185.
286. Oberman, supra note 9, at 29.
287. Patricia Edmonds, Teen Pregnancy Revives Law on Statutory Rape, USA TODAY, Mar. 28, 1996, at 1A.
288. PAUL H. ROBINSON & JOHN M. DARLEY, JUSTICE, LIABILITY AND BLAME: COMMUNITY VIEWS AND THE CRIMINAL LAW 160-67 (1995). In 1990-91, Professors Robinson and Darley asked for the opinions of thirty-nine adult Americans regarding appropriate liability and punishment for a nineteen year-old male who had sexual contact with a fourteen year-old girl where, after meeting him in a health club, the girl invited the male to her home, told him her parents were away, and wanted to have sex with him.
289. Id. at 272.
290. In this scenario, fifty-five percent of the research subjects reported either that the male should not be found criminally liable for statutory rape, or that he should suffer no criminal punishment for his actions.
291. Id at 162.
292. It is best to regard the results of Robinson and Darley's study with caution, however, because the sample of research subjects consisted solely of librarians, psychologists, and social workers; more conservative professionals and less educated subjects were thus under-represented in this research.
293. Id. at 291 n.5.
294. Edmonds, supra note 163.
295. S. 1400, 93rd Cong. § 1633 (1973). This bill did not become law. The Civil Rights Commission's 1977 report on Sex Bias in the United States, authored by now-Justice Ruth Ginsberg, approved of that legislation. U.S. COMMISSION ON CIVIL RIGHTS, SEX BIAS IN THE U.S. CODE 94-95, 103 (1977).
296. REVIEW OF THE 1972 GAY RIGHTS PLATFORM (2002), http://www.article8.org/docs/general/platform.htm.
297. Arnold Beichman, The Crime of Teen Sex, WASH. TIMES, Apr. 29, 1996, at A23.
298. Cheryl Wetzstein, Most Teen Moms Are Impregnated by Men, Not Boys: New Prevention Strategies Urged, WASH. TIMES, Apr. 26, 1996, at A2 ("When we legalized abortion and created access to contraception, there was a presumption that no woman would have child if she didn't want to.") (quoting Kathleen Sylvester of the Progressive Foundation).
299. THOMPSON, supra note 115, at 7. The percentage of sexually experienced adolescent girls held steady for at least a decade following this period, according to the National Survey of Family Growth. KRISTIN A. MOORE ET AL., A STATISTICAL PORTRAIT OF ADOLESCENT SEX, CONTRACEPTION AND CHILDBEARING 19 (1998);
300. Susheela Singh & Jacqueline E. Darroch, Trends in Sexual Activity Among Adolescent American Women, 31 FAM. PLAN. PERSP. 212 (1999). Younger teens also were becoming sexual experienced: both Besharov & Gardner and Leitenberg & Saltzman report that approximately one-third of teen girls the surveyed had lost their virginity by age fifteen. Daniel J. Besharov & Karen N. Gardner, Trends in Teen Sexual Behavior, 19 CHILD, AND YOUTH SERV. R EV. 341, 343 (1997);
301. Harold Leitenberg & Heidi Saltzman, A Statewide Survey of Age at First Intercourse for Adolescent Females and Age of Their Male Partners: Relation to Other Risk Behavior and Statutory Rape Implications, 29 ARCHIVES OF SEXUAL BEHAV. 203, 203 (2000).
302. See Susan Williams McElroy & Kristin Anderson Moore, Trends Over Time in Teenage Pregnancy and Childbearing: The Critical Changes, in KIDS HAVING KIDS 23, 60 (Rebecca Maynard ed., 1997);
303. LUKER, TEEN PREGNANCY, supra note 9, at 86-90.
304. This increase in births to unmarried teens paralleled a trend among the adult population, as births to unwed women aged 20-44 increased 150% between 1950 and 1987. Mike A. Males, Adult Liaison in the "Epidemic" of "Teenage" Birth, Pregnancy and Venereal Disease 29 J. SEX RES. 525, 534 (1992) [hereinafter Males, Epidemic].
305. LUKER, TEEN PREGNANCY, supra note 9, at ch. 4;
306. see also Males, Epidemic, supra note 172, at 533.
307. The "11,000,000" figure was derived from a study of teen sexual activity conducted by the Alan Guttmacher Institute in 1976, but in an inaccurate form; it "kept appearing in front of the word 'pregnancy' even though it actually estimated the number of U.S. teenagers who had sex, not who got pregnant." Thompson, supra note 115, at 9.
308. Rigel Oliveri, Statutory Rape Laws and Enforcement in the Wake of Welfare Reform, 52 STAN. L. REV. 463, 468 (2000).
309. Thompson, supra note 115, at 8.
310. See Levine, supra note 149, at 91.
311. Males, Epidemic, supra note 172, at 533 ("If there was an 'epidemic' period in terms of uniquely high rate and rapid relative increase in teen parenthood, it was largely during the late 1950s and the 1960s."). The Congressional Research Service and the California Senate Office of Research also documented the high watermark of teen birth rate increases as occurring during the Eisenhower administration.
312. See RUTH ELLEN WASEM, TEENAGE PREGNANCY: ISSUES AND LEGISLATION 4 (1989);
313. KATE SPROUL, CALIFORNIA STRATEGIES TO ADDRESS TEENAGE PREGNANCY 2 fig.1 (1997).
314. Ironically, the rising teen birth rates were mirrored by unprecedented use of contraception among teenagers. See MOORE ET AL., supra note 170, at 27.
315. See STUART M. BUTLER & ANNA KONDASTAS, OUT OF THE POVERTY TRAP: A CONSERVATIVE STRATEGY FOR WELFARE R EFORM 141 (1987);
316. see also KIDS HAVING KIDS: ECONOMIC COSTS AND SOCIAL CONSEQUENCES OF TEEN PREGNANCY (Rebecca A. Maynard ed., 1997).
317. For more information about the racial coding of these arguments see REESE, supra note 117, at 141-44. These assertions were made despite the fact that available empirical evidence pointed in the opposite direction: poverty precedes teenage childbearing, it is not caused by it. LUKER, TEEN PREGNANCY, supra note 9, at ch. 5;
318. Mike A. Males, Poverty, Rape, Adult/Teen Sex: Why "Pregnancy Prevention" Programs Don't Work, 75 PHI BETA KAPPAN 407, .409 (1994) [hereinafter Males, "Pregnancy Prevention"];
319. Mike Males, Schools, Society, and "Teen" Pregnancy, 74 PHI D ELTA KAPPAN 566 (1993) [hereinafter Males, "Teen" Pregnancy];
320. THE LEGISCHOOL PROJECT, HOW WILL WE CARE FOR OUR CHILDREN? ADOLESCENT PREGNANCY AND PUBLIC POLICY IN CALIFORNIA (1995).
321. Martha Burt, Estimating the Public Costs of Teenage Childbearing, 18 FAM. PLAN. PERSP. 221, 221 (1986).
322. Id. at 222.
323. B. Drummond Ayres, Jr., Marriage Advised in Some Youth Pregnancies, N.Y. TIMES, Sept. 9, 1996, at A12 (quoting Governor of California Pete Wilson).
324. See Mike Males, In Defense of Teenaged Mothers, 58 THE PROGRESSIVE 22, 22 (1994) [hereinafter Males, Defense] (quoting President Bill Clinton's 1994 State of the Union Address where he stated "Can you believe that a child who has a child gets more money from the Government for leaving home than for staying home with a parent or grandparent? That's not just bad policy, it's wrong.").
325. See Oliveri, supra note 175, at 463;
326. see also JODIE LEVIN-EPSTEIN, STATE TANF PLANS: OUT-OF-WEDLOCK AND STATUTORY RAPE PROVISIONS ( 1997), available at http://www.clasp.org/publications/tanfpln1.html.
327. REESE, supra note 117, at 18 (quoting the law's purposes as follows: "abstinence education was supposed to teach that sex outside of marriage is psychologically harmful, that abstaining from sex outside marriage is the only certain way to avoid out-of-wedlock pregnancy, sexually transmitted diseases, and other associated health problems, and that a mutually faithful monogamous relationship in the context of marriage is the expected standard of human sexual activity") (internal quotation marks omitted). In furtherance of this second purpose, the Act created an "illegitimacy bonus" - states that significantly lowered their out-of-wedlock birth rates without experiencing a rise in abortion rates would receive extra funding. Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) Pub. L. No. 104-193, 110 Stat 2105, § 402(a)(1)(v) (codified as amended at 42 USC § 602 (2006)).
328. Legal paternalism justifies criminal sanctions where an activity causes possible to harm to the actor, but not to other people.
329. See generally Joel FEINBERG, 3 THE MORAL LIMITS OF CRIMINAL LAW: HARM TO SELF (1986).
330. BERNARD E. HARCOURT, ILLUSION OF ORDER: THE FALSE PROMISE OF BROKEN WINDOWS POLICING 183 (2001) (emphasis in original);
331. see also Roberts, supra note 10, at 19 (arguing that, over time, harmful conduct can become accepted, and vice versa).
332. For the origin of the "symbolic crusade" concept, see generally GUSFIELD, supra note 67.
333. See REESE, supra note 117, at 187-192 (describing the coalescing of social and religious conservative movements against welfare). For the moral elites, welfare reform represented a return to "a romanticized nineteenth century past in which women sought protection, sustenance, and moral guidance from male household heads and church leaders, and Victorian values - civic virtue, self-reliance, chastity, and familial obligations - prevailed."
334. Id. at 187.
335. For the budget conservatives, welfare reform promised to limit costly immigration as well as to limit overall costs of welfare while staving off any efforts to raise taxes.
336. Id. at 182-87 (describing the anti-immigrant provisions of PRWORA).
337. For a more general explanation of the conservative approach to late twentieth century welfare reform, see generally PAUL PIERSON, DISMANTLING THE WELFARE STATE? REAGAN, THATCHER, AND THE POLITICS OF RETRENCHMENT (1994);
338. STEVEN M. TELES, WHOSE WELFARE ? AFDC AND ELITE POLITICS (1996);
339. and KENT WEAVER, ENDING WELFARE AS WE KNOW IT (2000).
340. See, e.g., H.R. REP. NO. 102-107 (1992);
341. WASEM, supra note 178;
342. STANLEY K. HENSHAW, ET AL., TEENAGE PREGNANCY IN THE UNITED STATES: THE SCOPE OF THE PROBLEM AND STATE RESPONSES (1989).
343. David J. Landry & Jacqueline Darroch Forrest, How Old Are U.S. Fathers? 27 FAM. PLAN. PERSP. 159 (1995). Landry and Forrest's findings built upon the results of earlier studies documenting the extent of teenage and adult male involvement in childbearing.
344. See, e.g., Nat'l Center for Health Statistics, Advance Report of Final Marriage Statistics, 1988, Monthly Vital Statistic Report (1991);
345. Males, Teen Pregnancy, supra note 180;
346. Males, Epidemic, supra note 172.
347. Landry & Forrest, supra note 192.
348. Id.
349. See Elo et al., supra note 153, at 78.
350. The 15-17 year-old girls were also th least likely group to be married to their partners, and thus more likely to require public assistance to cover child rearing costs. Landry & Forrest, supra note 192, at 159.
351. Younger girls are more likely to have significantly older partners, are
352. Jacqueline E. Darroch, David J. Landry & Selene Oslak, Age Differences Between Sexual Partners in the United States, 31 FAM. PLAN. PERSP. 160, 164-165(1999). Younger girls with substantially older partners are less likely than girls with similarly-aged partners to report unintended pregnancies and are less likely to have used contraception during their last sexual encounter.
353. Id. at 165-66 (reporting on these percentages as they pertain to 15-17 year olds with older partners);
354. see also MOORE ET AL., supra note 170, at 24, 26; Kim S. Miller, Leslie F. Clark & Janet S. Moore, Sexual Initiation with Older Male Partners and Subsequent HIV Risk Behavior Among Female Adolescents, 29 FAM. PLAN. PERSP. 212 (1997).
355. Males, Pregnancy Prevention, supra note 180;
356. Mike A. Males, Adult Men: The Unspoken Factor in Teen Pregnancy and Disease, 13 REPROD. HEALTH RESOURCES 1 (1995) [hereinafter Males, Unspoken Factor];
357. Mike A. Males & Kenneth S. Y. Chew, The Ages of Fathers in California Adolescent Births, 1993,86 AM. J. PUB. HEALTH 565 (1996).
358. Males, Pregnancy Prevention, supra note 180, at 408.
359. Males & Chew, supra note 198, at 567.
360. Laura Duberstein Lindberg et al., Age Differences Between Minors Who Gave Birth and Their Adult Partners, 29 FAM. PLAN. PERSP. 61, 63 fig.2 (1997);
361. Elo et al., supra note 153, at 76. Indeed, even Males included eighteen year-old girls in his target population of "school-age mothers." Males & Chew, supra note 198, at 565.
362. See Darroch, et al., supra note 197, at 160; Miller et al., supra note 197, at 212;
363. Leitenberg & Saltzman, supra note 170, at 203.
364. Lindberg et al., supra note 201, at 61.
365. See also Elo et al., supra note 153, at 78 (reporting that eighty-five percent of babies born to teen mothers in the past three decades have been fathered by young men who are within two or three years of the mother's age).
366. Elo et al., supra note 153, at 77 fig.5,78.
367. Id. at 79.
368. Earlier works also had documented this trend. Marvin Eisen et. al., Factors Predicting Pregnancy Resolution Decision and Satisfaction of Unmarried Adolescents, 108 GENETIC PSYCHOL.69 (1983);
369. R. Rosen, Adolescent Pregnancy Decision-Making: Are Parents Important? 15 ADOLESCENCE 43 (1980).
370. Although the newer studies led to academic debates about the soundness of a teen pregnancy-oriented statutory rape policy, see, e.g., Patricia Donovan, Can Statutory Rape Laws Be Effective in Preventing Pregnancy? 29 FAM. PLAN. P ERSP. 30 (1997);
371. Rebekah Saul, Using - and Misusing - Data on Age Differences Between Minors and Their Sexual Partners, 2 GUTTMACHER REP. ON PUBLIC POL'Y (1999), these publications apparently never caught the attention of government lawmakers.
372. Although both sets of researchers acknowledge the pressures that might accompany an age-disparate relationship, Males & Chew, supra note 198, at 567;
373. Landry & Forrest, supra note 192, at 161 ("This type of age difference suggests, at the least, very different levels of life experience and power, and brings into question issues of pressure and abuse."), both also explicitly warn against presuming exploitation in couples just because the female is younger than eighteen.
374. See, e.g., Males, Epidemic, supra note 172, at 540-41;
375. Landry & Forrest, supra, at 161, 165.
376. PRWORA § 402(a)(1)(vi)(1996) (codified as amended at 42 U.S.C. § 602(1)(A)(vi) (2006)).
377. See FLA. STAT. § 827.04, 794.05 (1996);
378. Elizabeth Shafer & Catherine Teare, Bring Back Statutory Rape: States See New "Cure" for Teen Pregnancy, 18 YOUTH LAW NEWS 1, 4 (1996);
379. see also U.S. DEP'T. OF JUSTICE, STATE LEGISLATORS' HANDBOOK FOR STATUTORY RAPE ISSUES 8 (2000);
380. ELSTEIN & DAVIS, supra note 86, at 64.
381. ELSTETN & DAVIS, supra note 86, at 19.
382. Id.
383. For a comprehensive list of the states' intended plans to improve education, training, and prosecution of statutory rape in accordance with the PRWORA and TANF grant requirements, see LEVIN-EPSTEIN, supra note 185.
384. California's statute does have alternative provisions for cases involving age gaps; compare CAL. PENAL CODE §261.5(b) (criminalizing sex with anyone under eighteen as a misdemeanor) with §261.5(c) (making it a misdemeanor or a felony if the age gap is three years or more) and with §261.5(d) (making it a misdemeanor or a felony if the defendant is over twenty-one and the victim is under sixteen). Yet as these provisions make clear, basic liability for statutory rape does not require an age gap. In 1995 California State Assemblyman Louis Caldera proposed adding penalties of up to five years for a statutory rape which results in pregnancy. See Edmonds, supra note 163. However, this bill never became law.
385. "Vertical prosecution" refers to the case handling method of the District Attorney's Office, whereby one prosecutor handles a case from start to finish instead of passing it off to his co-workers at later stages. See SHARON G. ELSTEIN & BARBARA E. SMITH, VICTIM-ORIENTED MULTIDISCIPLINARY RESPONSES TO STATUTORY RAPE : TRAINING GUIDE CH. 3 (2000);
386. BONNELL ET AL., supra note 153;
387. Kay L. Levine, The New Prosecution, 40 WAKE FOREST L. REV. 1125, 1153 n.79 (2005).
388. Levine, supra note 213, at 1136 n.24. For more information about the Governor's rhetoric that gave rise to the statutory rape program, see id. at 1135-40.
389. 1996 Cal. Stat. ch. 789 (codified as amended at CAL. PENAL CODE § 261.5 (West 2000)).
390. This extension was part of a statewide media campaign against teen pregnancy called the Partnership for Responsible Parenting. CAL. DEP'T OF HEALTH SERV., HIGHLIGHTS OF THE PARTNERSHIP FOR RESPONSIBLE PARENTING (1999).
391. In FY 2003-04, pursuant to the Budget Act of 2003, the funding structure changed: the SRVPP was consolidated with other vertical prosecution programs into one master vertical prosecution grant program administered by the state. The state budget for dus master program totals approximately $8.2 million annually. Telephone Interview with Gwen Sarine, Administrator, Office of Emergency Services, State of California (May 4, 2004);
392. see also Levine, supra note 213, at 1139 n.33.
393. Levine, supra note 149, at 113.
394. Id at eh. 6.
395. Not every case filed by the units was a violation of the statutory rape law specifically; the units also filed complaints for child molestation, contributing to the delinquency of a minor, forcible rape, and other penal code violations where appropriate. Levine, supra note 149, at ch. 7;
396. Levine, supra note 9, at 713-32.
397. The number of arrests for statutory rape showed a similar dramatic increase after the program was implemented. In 1994, before the program began, there were 573 arrests for statutory rape statewide. By 1996, the number had jumped to 856, an increase of more than fifty percent. By 1998, the annual arrest tally exceeded 1300 - almost two and a half times its pre-program level. BONNELL ET AL., supra note 153, at 42 (tbl. 5.1), 44 (fig. 5.1).
398. Levine, supra note 149, at 154-55.
399. REESE, supra note 117, at 190-92;
400. see also STEPHEN J. SCHULHOFER, UNWANTED SEX: THE CULTURE OF INTIMIDATION AND THE FAILURE OF LAW, chs. 1-2 (1998).
401. Throughout the 1990s, tougher child support measures received support from women's organizations across the United States, including the National Women's Law Center and the Women's Legal Defense Fund. REESE, supra note 117, at 192.
402. See, e.g., Shafer & Teare, supra note 209 (discussing the downsides of California's SRVPP).
403. OFFICE OF CRIMINAL JUSTICE PLANNING, STATUTORY RAPE VERTICAL PROSECUTION FIRST YEAR REPORT (1997) [hereinafter SRVP FIRST YEAR REPORT] (documenting dide number of cases mat did not involve pregnant or parenting teens).
404. See, e.g., Oberman, supra note 9.
405. For a general discussion of the non-pregnancy related harms implicit in adult-teen sexual relationships and an argument that the criminal justice system has a duty to respond to all types of statutory rape victims, see also Oberman, supra note 101.
406. There is some evidence that OCJP recognized the importance of discouraging child sexual exploitation when the grant was first conceived. But in the early years of thee SRVPP, this goal was listed last among the program objectives, long after reducing teen pregnancy, establishing paternity, and helping secure child support for children born to unwed minors. OFFICE OF CRIMINAL JUSTICE PLANNING, STATUTORY RAPE VERTICAL PROSECUTION, REQUEST FOR APPLICATION, FISCAL YEAR 1995-96 (1995);
407. see also SRVP FIRST YEAR REPORT, supra note 226;
408. OFFICE OF CRIMINAL JUSTICE PLANNING, STATUTORY RAPE VERTICAL PROSECUTION SECOND YEAR REPORT (1998). Hence, the embrace of the exploitation rationale in 1998 indicates a dramatic shift in emphasis, rather than the construction of an entirely new purpose.
409. See, e.g., ROBERT ALAN PRENTKY & ANN W. BURGESS, FORENSIC MANAGEMENT OF SEXUAL OFFENDERS 143-81 (2000) (discussing legal responses to sexual violence); Nicole Travers, Note, A Brief Examination of Pedophilia and Sexual Abuse Committed by Nuns within the Catholic Church, 12 WM. & MARY J. WOMEN & L. 761, 767 (2006) (citing Beth Wilbourn, Suffer the Children: Catholic Church Liability for the Sexual Abuse Acts of Priests, 15 REV. L ITIG. 251 (1996);
410. DAVID FRANCE, OUR FATHERS: THE SECRET LIFE OF THE CATHOLIC C HURCH IN AN AGE OF SCANDAL (2004);
411. William Winslade et al., Castrating Pedophiles Convicted of Sex Offenses Against Children: New Treatment or Old Punishment? 51 SMU L. REV. 349 (1998)).
412. See also The Jacob Wetterling CrimesAgainst Children and Sexually Violent Offender Registration Program, 42 U.S.C § 14071 (2006).
413. The exploitation model assumes that teens, by virtue of their age alone, are not mature enough to give meaningful consent to sexual contact. While this lack of maturity can certainly be exploited by one's peers, the criminal justice system should punish lecherous adults who prey on that vulnerability through economic incentives, physical strength, or relationship status.
414. SRVPP GUIDELINES 2001, supra note 153;
415. BONNELL, supra note 153, at Appendix A.
416. Jeffrey S. Adler, Vagging the Demons and Scoundrels: Vagrancy and the Growth of St. Louis, 1830-1860, 13 J. URB. HIST. 3, 4 (1986).
417. Even the late 1990s move to the exploitation rationale, largely driven by prosecutors, occurred against the backdrop of other social changes. See supra notes 225-30 and accompanying text.
418. See GLUECK, supra note 101 ;
419. BRECKENRIDGE & ABBOTT, supra note 108;
420. see also ODEM, supra note 9, at ch. 4;
421. LUKER, TEEN PREGNANCY, supra note 9, at 38.
422. Schlossman & Wallach, supra note 9;
423. Luker, Double-Edged Sword, supra note 97.
424. See supra notes 117-32 and accompanying text.
425. See supra note 119.
426. See supra notes 174-83 and accompanying text.
427. See supra note 72.
428. See supra Part II.B.3-Part II.C and accompanying notes. Drawing once again on Joel Best's insight, supra note 72, this entrenchment was predictable. Having already publicized the big numbers as justification for their program, these reformers were not likely to validate the smaller numbers that later research established as more accurate measures.
429. Id.
430. See supra notes 117-23 and accompanying text.
431. See supra notes 180-90 and accompanying text.
432. See, e.g., Oberman, supra note 9;
433. Phillips, supra note 9.
434. See supra Part II.A. 1.
435. See supra notes 155-56 and accompanying text.
436. See Ehrlich, supra note 9, at 163 (describing the Religious Right's efforts, begun during the Reagan administration, to alter the sexual conduct of young women: "from their perspective, the problem was not 'teenagers' pregnancies but their sexual activity [and] the remedy was not contraception but chastity'");
437. see also id. at 172 et seq. (describing the abstinence-only education agenda of the conservatives).
438. See supra note 124 and accompanying text.
439. See supra notes 125-29 and accompanying text.
440. See supra notes 180-83 and accompanying text. For more information on the racial coding of the welfare queen in the 1980s see REESE, supra note 117, at 141-44, 178-82.
441. David Vasquez, Illegal-sex Charges Hit Latinos Hardest: Study Breaks Down Race of 1999 Defendants, SAN JOSE MERCURY NEWS, Sept. 12, 2000, at 1A.
442. Recall that conflict criminologists would argue that such discrimination is the point, not just the result, of such policies.
443. See supra notes 40-53 and accompanying text.
444. See, e.g., Adler, supra note 232, at 4 (describing vagrancy statutes as "notoriously vague" and "easily amended").
445. While judges and chief prosecutors in many jurisdictions are elected officials, it strains credulity to suggest that the statutory rape policy (or politics) of any general criminal justice official will determine his or her appeal to voters on Election Day. Moreover, the voting public has no say about policies during an administration's tenure, and oftentimes the neighborhoods that experience the most crime have low voter turnout. Anthony C. Thompson, It Takes a Community to Prosecute, 77 NOTRE DAME L. REV. 321, 353 (2002).
446. See Dan M. Kahan, Is Chevron Relevant to Federal Criminal Law? 110 HARV. L. REV. 469 (1996) (arguing that DOJ should be held to regulatory procedures like other agencies when it makes policy that narrows or broadens criminal statutes);
447. Kahan, supra note 49, at 153 ("[C]riminal statutes typically emerge from the legislature only half-formed and must be completed through contentious, norm-laden modes of interpretation that are functionally indistinguishable from common-law making.").
448. In declaring heterosexual intercourse essentially non-harmful when "voluntary," the formal law of rape has ignited much criticism among certain writers, who contend that the degree of gender oppression in American society renders the notion of women's consent illusory and promotes, rathr than restricts, men's control of female sexuality.
449. See, e.g., SUSAN ESTRICH, REAL RAPE (1987);
450. Donald A. Dripps, Beyond Rape: An Essay on the Difference between the Presence of Force and the Absence of Consent, 92 COLUM. L. REV. 1780 (1992);
451. CATHARINE A. MACKINNON, TOWARD A F EMINIST THEORY OF THE STATE 175 (1989);
452. Dorothy E. Roberts, Rape, Violence, and Women's Autonomy, 69 CHL -KENT L. REV. 359, 387 (1993);
453. Robin L. West, The Difference in Women's Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory, 3 WIS. WOMEN'S L.J. 81, 90-97, 103-06 (1987);
454. Sharon Cowan, Freedom and Capacity to Make a Choice: A Feminist Analysis of Consent in the Criminal Law of Rape, in SEXUALITY AND THE LAW: FEMINIST ENGAGEMENTS 51, 52-53 (Vanessa E. Munro and Carl F. Stychin, eds 2007).
455. For a summary and critique of this position, see generally Coughlin, supra note 89.
456. The majority of jurisdictions consider statutory rape a strict liability offense.
457. See, e.g., MD. CODE ANN art. 27 § 463(a)(3) (2008) (interpreted by Garnett v. State, 332 Md. 571 (Md. App. 1993)). The minority, including California, recognize a reasonable mistake of age defense and set the mens rea at negligence. CAL. PENAL CODE §261.5 (West 2008) (interpreted by People v. Hernandez, 61 Cal. 2d 529, 535 (1964)).
458. As I've noted elsewhere, many states also require a certain age gap between the defendant and the victim in order to establish culpability for statutory rape, thus making the victim's age plus the chronological differential the proxy for harm. See generally Levine, supra note 9.
459. In California and elsewhere, sexual behavior with younger teenagers or children is criminalized in the laws prohibiting child molestation or child rape, a much more serious felony.
460. See, e.g., CAL. PENAL CODE §288 (West 2008).
461. For example, in 1996 the Journal of the American Bar Association published a debate between law professors Richard Delgado and Michelle Oberman entitled "Statutory Rape Laws: Does It Make Sense to Enforce Them in an Increasingly Permissive Society?" Compare Richard Delgado, Selective Enforcement Targets 'Unpopular'Men, 82 A.B.A. J. 86 (1996) with Michelle Oberman, The Risk of Psychological Harm to Girls Is Too Great, 82 A.B.A. J. 86 (1996).
462. See supra note 5.
463. Roberts, supra note 10, at 9.
464. See, e.g. Gary V. Dubin & Richard H Robinson, The Vagrancy Concept Reconsidered: Problems and Abuses of Status Criminality, 37 N. YU. L. REV. 102, 118 (1962) ("Unless the source of harm has been property identified and the logical relation between conduct and harm has been established, the imposition of sanction under a theory of stimulus and response can have little meaning.").
465. See also supra note 10 for sources discussing both the harm requirement and problems of breadth in criminal regulations. I return to this point briefly in the conclusion.
466. See Stuntz, supra note 2, at 512-23;
467. Kay Levine & Malcolm Feeley, Prosecution, in THE INTERNATIONAL ENCYCLOPEDIA OF THE SOCIAL AND BEHAVIORAL SOENOSS 12224 (2001). Criminal statutes therefore might be best understood as statements of aspiration, rather than as concrete behavioral and punishment guidelines. DAVIS, supra note 3, at 49 (1969);
468. Lynch, supra note 3, at 2137-38 (1998).
469. For some classic woks on the dangers of vesting law enforcement with too much discretion, see supra note 3.
470. While broad, highly contested statutes might seem the most suitable for sunset provisions, they in fact render these procedures unnecessary. Shifts in enforcement policy appear to make the law continuously relevant, and thereby deflect any argument that the statute is no longer useful. Moreover, as Dan Kahan has noted, "Delegating power to an agency to close. . . gaps as quickly as they are discovered is one device for responding to the law's persistent incompleteness; another, even more common one is prudent obfuscation of the law's outer periphery." Kahan, supra note 49, at 138.
471. This exemplifies prosecutors' and legislators' "tacit cooperation" to promote broadly written laws, a practice that law professor Bill Stuntz heavily criticizes. See Stuntz, supra note 2.
472. As argued by Eric Luna, significant levels of enforcement discretion turn law enforcers into law-makers, although they operate without appropriate levels of transparency or accountability. Eric Luna, Transparent Policing, 85 IOWA L. REV. 1107 (2000);
473. Eric Luna, Principled Enforcement of Penal Codes, 4 BUFF. CRIM. L. REV. 515 (2000). Many thanks to David Sklansky for suggesting that this point deserves emphasis.
474. Vagrancy is perhaps the best example of a crime without a pre-ordained theory of harm, and longitudinal studies of vagrancy have documented vast differences in the law's purpose and enforcement over time. See generally Chambliss, supra note 16;
475. Adler, supra note 16;
476. Arthur H. Sherry, Vagrants, Rogues and Vagabonds: Old Concepts in Need of Revision, 48 CAL. L. REV. 557, 560, 566 (1960);
477. Caleb Foote, Vagrancy-Type Law and Its Administration, 104 PENN. L. REV. 603, 614 (1956);
478. Dubin & Robinson, supra note 262, at 104, 108. Drug possession has also been identified as a crime about which there is a "lack of consensus about exactly what risk [the law] is designed to prevent." Douglas N. Husak, Reasonable Risk Creation and Overinclusive Legislation, 1 BUFF. CRIM. L. REV. 599, 606 (1998).
479. CHAMBLISS & SEIDMAN, POWER, supra note 42, at 173.
480. 18U.S.G §1341, which prohibits mail fraud, crimirializes the act of placing or receiving an item in the U.S. mail or with a commercial interstate carrier), while possessing an intent to defraud or to obtain money or property by false pretenses. Other statutes in this chapter criminalize fraudulent acts themselves; section 1341 mus makes an additional crime out of the behavior of mailing or receiving mail, aldnugh the statutoiy scheme fails to specify what additional harm - beyond the fraud itself - use of the mails causes. Podgor, supra note 19;
481. Peter Henning, Maybe It Should Just Be Called Federal Fraud- The Changing Nature of the Mail Fraud Statute, 36 B.C. L. REV. 435 (1995);
482. Jason T. Elder, Comment, Federal Mail Fraud Unleashed: Revisiting the Criminal Catch-all, 77 OR. L. REV. 707, 707 (1998) (calling mail fraud . "one of the last broad and amorphous criminal statutes").
483. Pub. L. 91-452, Titlee IX, § 901(a), 84 Stat 941 (codified as 18 U.S.C. § 1961 (2006). The Racketeer Influenced and Corrupt Organizations chapter of the Organized Crime Control Act of 1970 (RICO), which "requires proof that a defendant, through a pattern of racketeering, directly or indirecdy invested in, maintained an interest in, or participated in an enterprise, the activities of which affected interstate commerce," was designed to prohibit mob-type behavior and to fight organized crime. G. Robert Blakey, Perversion of Intent: The RICO Racket, NAT'L REV., May 16, 1994, at 61-62. However, the language of the statute is not explicity limited to organized crime; it identifies prohibited activities rather than types of perpetrators.
484. See Jennifer Bullock, Note, National Organization for Women v. Scheidler; RICO and the Economic Motive Requirement, 26 CONN. L. REV. 1533, 1536 (1994).
485. See, e.g., United States v. Arena, 180 F.3d 380, 385 (2d Cir. 1999);
486. see also Ross Bagley, Dorian Hurley & Peter Mancuso, Racketeer Influenced and Corrupt Organizations, 44 AM. CRIM L. REV. 901, 901-02 (2007).
487. As to the use of RICO to shut down abortion clinic protestors, see National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 262 (1994) (holding that an abortion clinic had standing to bring RICO claims alleging a conspiracy by protestors to shut the clinic down, because the statute does not require proof of economic motive).
488. But see Scheidler v. National Organization of Women, Inc., 537 U.S. 393, 404-405 (2003) (holding that the acts of the protestors did not amount to extortion, and therefore no predicate RICO acts were proven). There has also been some discussion about the use of RICO to deal with environmental terrorists.
489. See generally William Cason, Spiking the Spikers: The Use of Civil RICO against Environmental Terrorists, 32 HOUS. L. REV. 745 ( 1995).
490. Under the RICO statute, "racketeering activity" covers a wide range of crimes including "any act or thereat involving murder, kidnapping, gambling, arson, robbery, bribery, [and] extortion." 18 U.S.C. § 1961(1) (2006).
491. Chief Justice Burger has noted, "When a 'new' fraud develops - as constantly happens - the mail fraud statute becomes a stopgap device to deal on a temporary basis with the new phenomenon, until particularized legislation can be developed and passed to deal directly with the evil." United States v. Maze, 414 U.S. 395, 405-406 (1974) (Burger, C.J., dissenting). Some of these applications include mail fraud convictions for "franchise fraud, insurance fraud, false financial statements, medical (drug) frauds, securities fraud, and divorce mill frauds." Podgor, supra note 19, at 908 (internal citations omitted). Additionally, the courts have permitted mail fraud charges in cases that essentially concern other types of crimes, such as violation of the securities laws, "the Bankruptcy Act, the Landrum-Griffin Act, the Jenkins Act, the National Stolen Property Act, the Truth in Lending Act, and the Federal Trade Commission Act." Podgor, supra, at 910-11 (internal citations omitted);
492. see also Jonathan Lemann, Comment, Big Brother & the Gambling Company: The Federal Regulation of Louisiana's Gaming Industry under the Mail Fraud Statute, 44 LOY. L. REV. 785, 810 (1999).
493. As others have noted, prosecutors' power in the justice system vis-à-vis their legislative and judicial counterparts has increased dramatically in recent decades.
494. See, e.g., Stuntz, supra note 2, at 598-99 and sources cited supra note 3.
495. Many thanks to David Sklansky for suggesting this analogy, as well as the "empty shell" metaphor that appears on the following page.
496. Here I tend to agree with philosopher Doug Husak, who has argued that legislatures should be forced to "identify the consummate harm or evil [] that [a given] statute is designed to prevent," so that defendants whose behavior does not actually threaten the proscribed harm would be found not guilty of the crime. Husak, supra note 268, at 621. This approach keeps criminal laws from being overinclusive.
497. Id. at 613-14.