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Do 17 year olds have a constitutional right to intercourse?

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by: Ryan • February 3, 2012 • no comments

Crazy question, right? But the same thing might have been said about gays and lesbians before the United States Supreme Court's decision in Lawrence v. Texas, 539 US 558, 123 SCt 2472, 156 LEd. 2d 508 (2003), which struck down Texas's same-sex sodomy law. In doing so, the Court affirmed the existence of a substantive due process right to engage in private, consensual sexual conduct. The difference here is that 17 year olds are not generally considered adults. But if you can make a case that the constitutionally protected conduct discussed in Lawrence is implicated, that statutory provision criminalizing sex for 17 year olds should be held to a heightened degree of scrutiny.

That the state may not burden a particular sexual choice out of distaste or disagreement is the central holding of Lawrence. 123 SCt at 2478 ("When sexuality finds overt expression in intimate conduct with another person . . . the liberty protected by the Constitution allows homosexual persons the right to make this choice."). But still, 17 is different, right?

Except for the fact that 17 or younger is the age of consent in most states. Oregon - which has an age of consent of 18 - is an exception. Look at Wikipedia for a full list of state statutes and ages of consent.

If intimate conduct is a constitutional right (it is), and if - as a consequence - the statutes that prohibit such conduct for 17 year olds is subject to heightened scrutiny (it would follow), then what explanation could survive such scrutiny if most states permit 17 year olds to engage in intercourse? What do we know that Washington State or Pennsylvania or Iowa doesn't?

I think there's precedent that would support a criminal defendant asserting the constitutional right of the 17 year old. But what might be even more interesting - if you know any 16-17 year olds who want a really fun extracurricular project - would be if a minor sought a declaratory judgment that the statute was unconstitutional. Boy, girl, it doesn't matter. And it would get some very interesting press coverage.

I would be remiss in pointing at that under current interpretation of Oregon law, sex with a 17 year old in Oregon is a felony. Most states that criminalize sex with 17 year olds charge no more than a misdemeanor. Yes, there is a misdemeanor statute in Oregon as well, but prosecutors have every professional incentive to charge the felony. Further, if charged with the felony, the defendant - even if he's only twenty - would have to register as a sex offender, whereas a 19 year old who has sex with a 14 year old would probably be able to escape sex offender registration. All the details regarding Oregon's bizarre approach to statutory sex crimes are here .