As happens all too often with these viral ethics stories, the facts in the Kaitlyn Hunt case as represented in the first accounts appear to be wrong. Kaitlyn did not first become involved with her girlfriend when both were minors. According to an arrest affidavit , Kaitlyn and her girlfriend began dating in November 2012 when the younger girl was 14 and Kaitlyn was already 18.
Sorry, but that changes everything. Unless one is ready to assert as fact that lesbian relationships in which an adult, however young, becomes involved with a child are less dangerous and potentially damaging than heterosexual ones, Kaitlyn broke a law that is legitimate and sensible as it applies to her, and that law should be enforced. A 14- year old is not capable of meaningful or legal consent, and the opportunity for older, more experienced teens to exploit their inexperience, innocence and deference to older peers is significant and a genuine source of parental—and legal, and societal— concern. If the law permitted an 18/14 year-old sexual relationship between female teens, it would be difficult to explain why 18/12 year-old sexual relationships were materially different, and that being so, legal prohibition on 18-year-old young men seducing 12-year-old girls would be difficult to maintain.
Are there good arguments that a relationship like Kaitlyn’s should be treated differently? Well, there are arguments. Prof. Volokh gives us a few:
“..one can actually make a rational argument for treating lesbian relationships less severely than opposite-sex relationships. Lesbian relationships can’t lead to unwanted pregnancy, and, to my knowledge, are much less likely to spread the most serious sexually transmitted diseases. And while they can involve lies, lead to heartbreak, leave one or both members with a sense that one has been emotionally mistreated and taken advantage of, and so on, one can imagine a parent who can reasonably think “Phew, better that my daughter is having sex with a woman than with a man.” One can even imagine legal rules that draw this distinction, and constitutional rules that uphold such a distinction. Michael M. v. Superior Court (1980) upheld a sex-specific statutory rape law, which punished only males and not females, on the grounds that the law reflects real sex differences, including differential susceptibility to pregnancy. That argument would be even stronger as to a distinction between women-women relationships and other relationships, even given that sex classifications are subjected to heightened constitutional scrutiny (see Michael M. itself), and even if sexual orientation classifications come to be subjected to heightened constitutional scrutiny as well.”
In the end, however, Volokh comes to the same conclusion I do:
“But such an approach, while not irrational, is certainly not the law in Florida, and it’s far from clear that it is correct. The risk of emotional harm to 15-year-olds — harm that they may be even less prepared to deal with than older people are, and harm that they can’t reasonably be seen as consenting to, given their immaturity — remains in lesbian relationships even if the risk of pregnancy is removed and the risk of disease is very low.”
I wonder, therefore, what the A.C.L.U. thinks it is doing entering the debate, as it did today with a press release. Unless it thinks Kaitlyn is being targeted purely because of the same-sex nature of the relationship, and that isn’t apparent to me, its arguments seem weak at best:
- “The facts as we understand them suggest that the state is prosecuting Kaitlyn for engaging in behavior that is both fairly innocuous and extremely common.” Well, that’s none of the A.C.L.U.’s business. The parents of the younger girl and the law have priority over an ideological advocacy group in deciding what is “innocuous.”
- “Such behavior occurs every day in tens of thousands of high schools across the country….” This is “everybody does it,” and nothing more.
- “…yet those other students are not facing felony convictions…” Maybe they should be, if in fact the relationship was not truly consensual.
- “…and, in Florida, the lifetime consequences of a felony conviction) and potential lifelong branding as sex offenders. This is a life sentence for behavior by teenagers that is all too common, whether they are male or female, gay or straight. High-school relationships may be fleeting, but felony convictions are not.” This appears to be an argument against ever punishing teens for anything.
- “While effective laws are certainly needed to protect Florida’s children from sexual predators, one cannot seriously maintain that Kaitlyn’s behavior was predatory.” Really? I don’t know whether or not it was predatory. Is the A.C.L.U. seriously arguing that an 18-year-old is incapable of predatory behavior toward a 14, 13, 12-year old child?
Better standards and laws are needed, but it looks as if, the A.C.L.U. notwithstanding, the prosecution of Kaitlyn is ethically and legally justifiable.