This fellow in France has sex with an 11-year-old girl. He’s arrested. The judge decides that he is not guilty of rape. This has plenty of people really upset. The judge is correct. The reason he’s correct has to do with the nature of laws.
Laws differ all around the world and in the US from state to state even. For example, the age of consent in France is 13 years old. That’s the arbitrary number they have chosen. In most places in the US that number is 18. A few states have it set at 16. Supreme Court Justice Ginsberg has gone on record saying she thinks it should be 12. I mention that not to discuss the age of consent. I’m perfectly fine with it being 18. Rather I bring it up to discuss the nature of law. It’s often said that the Constitution is a living breathing document. It’s not, it’s a legal document. As such the words in it mean things. They are not to be messed with, altered, or misconstrued. There is a legal difference between “will” “shall” “may” and “must”. The word “must” in a statute creates an obligation, “must not” creates a prohibition. The word “may” presents a choice and the Supreme Court has ruled that “shall” also creates a choice as in “shall we go?”
This is a discussion on the nature of laws, not on consent.
Though I realize that for most people the below story is about sex with a child and the nature of consent I want to use it as a bridge to talk about laws because that’s what came into my mind when I read it. Everyone is upset at the judge but based on what I read of the law in France his ruling was correct. Laws are very specific as stated above. While people are getting up in arms the judge actually followed the law. That’s what we want judges to do. The man in question didn’t get off, he did commit a crime. The judge is just saying, based on the wording of the law, not the crime of rape. The man is still going to jail for having sex with a child though, just under a specific statute.
I had a discussion with many people when the topic of gay marriage came up. They said the law was bias. It wasn’t, I said. The got very angry. That’s not to say gays should or should not have the legal right to marry, it’s just to say that the law wasn’t biased.
A biased law is one that is not equally applied to all people.
When I would explain that definition I would get a “See! It is biased against gays just like I said!”
But was it really?
The law stated that a man could marry one woman and a woman could marry one man. That law was equally applied to everyone. The law was equally applied to all people. Just because some people didn’t want to marry a woman or a man didn’t mean the law was unequally applied to them. Under the law any gay man could have married one woman and any straight man could not have married another man.
In France rape as a crime requires force.
Meaning the language of the rape law requires that the person is forced to have sex in order for the behavior to fit the crime. In this case the man told the girl he would teach her how to kiss. She followed him back to his apartment for the lesson which ended up going from kissing to sex. According to the story she willingly followed him and did not resist the sex. He committed a crime alright, “sexual abuse of a minor”, which is quite serious. If the behavior doesn’t fit the crime, then a judge can’t just charge someone as he sees fit. When it comes to laws we want them to be followed. The law makers make them, the police enforce them, and the judges adjudicate them. If they need to be changed the judge isn’t the one to do that.
Even in America we add the word “statutory” before the word rape when talking about sex outside the age of consent to make it clear that force isn’t at issue. American law says that the imbalance of power between an adult and child is a form of force in itself and is sufficient for the act to be considered rape.
Because sets of laws are produced over time, sometimes centuries, they often create an odd mismatch of ideas.
Cops and judges have to navigate this complex system created by the lawmakers who generally act on the whim of their day. It’s what happens when politics rather than justice is the motivator for law. I advocate for a rights-based system of laws with an articulable victim. Children fall into a unique category because they are not able to manage their own rights. They are, by default, protected from risk. This is yet another reason that abortion should be illegal by the way.
A rights-based system of laws would be succinct and simple with almost all behavior being legal. Morality and legality are two different things. You cannot legislate morality. Society, culture, community, religion, and other pressures do a pretty good job managing that. What law should do is manage protection of one person from another person. We have property rights. Laws relating to protecting property from theft are good. We have personal sovereignty. Laws relating to slavery are good. Laws that force us to, say, wear a seat belt, are not good laws. They do not protect us from anyone else. They do not identify a right that is at risk and protect it. Seat belt laws are “must” laws that create an obligation on a person that may be contrary to their own individual sovereignty and unnecessary.
If the lawmakers would stop trying to live people’s lives for them and simply focus on protecting their rights then law books would be slim indeed and laws very easy to apply. In many states there is the law of assault and aggravated assault is added for how much damage is done. By simply having a law, and a degree of that law, all crimes are covered. In the case of the little girl, assault fits to which a degree could be added. It need not be called rape, but rather sexual assault which fits. Since a child cannot consent no force is required.
When it comes to law we want equality of law and we want the law followed. If the law is written poorly don’t blame the judge. The lawmaker is called that for a reason. They make the laws. If they make them poorly we know who to blame. Not the cop on the street or the judge in his seat. The lawmaker is to blame for all the ills of our government.