Lindsey Graham's Smear
No, Ruth Bader Ginsburg does not advocate pederasty.
What is Sen. Lindsey Graham, R-S.C., smoking? On the fourth day of the Senate Judiciary Committee hearing on John Roberts, President Bush's nominee for chief justice of the Supreme Court, Graham accused Justice Ruth Bader Ginsburg of advocating that the age of sexual consent be reduced to 12. Let's go to the transcript:
Well, there are all kind of hearts. There are bleeding hearts and there are hard hearts. And if I wanted to judge Justice Ginsburg on her heart, I might take a hard-hearted view of her and say she's a bleeding heart. She represents the ACLU. She wants the age of consent to be 12. She believes there's a constitutional right to prostitution. What kind of heart is that?
Graham's bizarre smear, deployed to warn Democrats not to come down on Roberts' "value system," was omitted from nearly all news accounts, presumably because no one knew what on earth he could possibly be talking about. An exception was Fox News, which ran the clip without commenting on whether the accusation was true. (Shame on Fox, and on reporter Jim Angle, who introduced the clip.) Graham's press secretary posted the smear on Graham's Web site but didn't cite any source.
So what was Graham's source? According to Graham spokesman Kevin Bishop, it was Sex Bias in the U.S. Code, a booklet co-authored by Ginsburg and published by the U.S. Commission on Civil Rights in 1977. The booklet's existence has been a hot topic among conservative homophobes for some time; see, for instance, here, here, and here. I haven't got the booklet itself—we'll get to its specific language, as related (no doubt accurately) by Eugene Volokh of UCLA Law School, in a moment—but Edward Whelan, president of the conservative Ethics and Public Policy Center, has posted a 1974 paper coauthored by Ginsburg (under the aegis of the Columbia Law School Equal Rights Advocacy Project) titled "The Legal Status of Women Under Federal Law." This paper was an earlier version of Sex Bias in the U.S. Code. In an item about the 1974 paper posted last year on National Review Online, Whelan put the pro-pederasty accusation at the bottom of a list of other ridiculously distorted examples of Ginsburg's "extremist views" at the time—a tip-off that he knew he was on shaky ground. (Whelan didn't mention the age-of-consent point at all in a more recent rundown of the paper's most supposedly damning bits.) Here is Whelan's throwaway line in his National Review Online post:
Other nuggets abound. For example, Ginsburg recommended that the age of consent for purposes of statutory rape be lowered from 16 to 12. [See pages 69-71 and the specific recommendation regarding 18 U.S.C. § 2032 on page 76.] *
When we go to these pages, we find nothing of the sort.
"The Legal Status of Women Under Federal Law" is a paper advocating that federal statutes be rewritten so that, wherever possible, gender-specific references be replaced with gender-neutral references. That's the entire point of the paper, and, apparently, it's the entire point of Sex Bias in the U.S. Code as well. The paper's discussion of statutory rape objects to the fact that the relevant federal laws define the victim as female and the offender as male. Ginsburg and her coauthor argue that the law should be rewritten to outlaw sexual abuse of any minor, male or female, by any person who is significantly older, male or female (thereby obviating the absurd possibility that a 13-year-old boy would be prosecuted for seducing a 15-year-old girl). I would be very surprised if Sen. Graham disagreed with a word of this.
In the course of making this point, Ginsburg's 1974 paper praises and then quotes a draft Senate bill that never became law. The proposed law has, she writes, "a definition of rape that, in substance, conforms to the equality principle." She then quotes the bill's language:
"A person is guilty of an offense if he engages in a sexual act with another person, not his spouse, and: (1) compels the other person to participate: (A) by force; or (B) by threatening or placing the other person in fear that any person will imminently be subjected to death, serious bodily injury, or kidnapping; (2) has substantially impaired the other person's power to appraise or control the conduct by administering or employing a drug or intoxicant without the knowledge or against the will of such other person, or by other means; or (3) the other person is, in fact, less than twelve years old."
Yes, the language Ginsburg quotes with approval puts the age of consent at 12, which does seem awfully young. But she isn't addressing herself to the age issue; she's addressing herself to the gender issue. Is her praise meant to constitute an endorsement of the entire bill? Of course not. Ginsburg makes this explicit in a footnote in which she complains that even this language "retains use of the masculine pronoun to cover individuals of both sexes," which at the very least is confusing if it's intended to outlaw statutory (and other) rape by women, too. I would further guess that neither Ginsburg nor her feminist cohorts at the Columbia Law School Equal Rights Advocacy Project were particularly crazy about the quoted language's get-out-of-jail-free card for married men who raped their wives.
Timothy Noah is a former Slate staffer. His book about income inequality is The Great Divergence.