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.
With this in mind, let's proceed to the language in Sex Bias in the U.S. Code, as described by the eminently reliable (though in this instance, I believe, analytically faulty) Eugene Volokh. Once again, Ginsburg objects to the fact that the law, as written, makes gender distinctions that she doesn't consider legitimate: "[T]he immaturity and vul[n]erability of young people of both sexes could be protected through appropriately drawn, sex-neutral proscriptions." According to Volokh, on page 102 Ginsburg makes the following "suggestion":
18 U.S.C. §2032 — Eliminate the phrase "carnal knowledge of any female, not his wife who has not attained the age of sixteen years" and substitute a Federal, sex-neutral definition of the offense patterned after S. 1400 §1633: 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 12 years old.
From this, Volokh concludes that Ginsburg does indeed favor lowering the age of consent to 12. Exasperatingly, though, Volokh leaves out precisely how Ginsburg has worded her "suggestion." Since the topic, once again, is sex bias rather than age bias, I think that's important to know. Even if Ginsburg's "suggestion" is unqualified, it ought to be clear that, even in the swingin' 1970s, nobody would have proposed lowering the age of consent to 12 without offering up some sort of argument as to why this should be done. Yet Volokh does not cite any language elaborating on the point. From this I conclude that none exists. At the very worst, Ginsburg would seem to be guilty of a sloppy cut-and-paste job that muddied her meaning. Here's how she frames her recommendation in the 1974 paper (page 76):
A sex neutral definition of rape, such as the one set forth in S. 1400, § 1631, should be added to Title 18 or Title 10 and referred to throughout for the definition of the offense.
What, then, is Ruth Bader Ginsburg's true crime? In discussing how to rewrite the federal law addressing statutory rape, Ginsburg failed to state an opinion about what the age of consent should be. Perhaps she didn't address the issue, even parenthetically, because she really didn't have an answer. (Maybe she thought it should be higher than 16!) More likely, though, Ginsburg didn't address the age-of-consent issue because it wasn't relevant to her topic. Say it with me: She wasn't writing about age; she was writing about gender!
This indifference may seem monstrous to some. But one should remember that the sexual abuse of children didn't really become a high-profile issue until the 1980s, when the "recovered memory" phenomenon brought many more cases to light, some of them involving real abuse and putting real criminals behind bars, others merely creating hysteria and destroying the lives of innocent people. Were Ginsburg writing that paper today, she would no doubt raise at least a parenthetical eyebrow at making 12 the age of consent, if only to fend off accusations that she was herself pulling little boys into alleys. But in the 1970s, this particular variety of political quicksand had not yet evolved.
One final puzzle: Even though Volokh finds the defendant (Ginsburg) guilty, he's uncovered one bit of evidence that seriously undermines his argument. What follows is a quote from Volokh, not Ginsburg:
S. 1400 §1633 provided (at least in the version that I could find), that "sexual abuse of a minor" (essentially statutory rape) be limited to victims who are under 16, and who are "at least five years younger than" the defendant.
Whaa? S. 1400 kept the ageof consent at 16? Then why did Ginsburg write in the 1974 paper that it lowered the age of consent to 12? Wait a minute! Could all this Sturm und Drang be over…a typo? A typo that, mysteriously, was transposed from Ginsburg's 1974 paper to the 1977 booklet? That would be too rich.
[Update, Sept. 18: Graham's Ginsburg smear at the Roberts hearing was no mere slip of the lip. He said the same thing on Fox News' Hannity & Colmes the day before. Tim Funk of the Charlotte Observer and Michael McAuliff of the New York Daily News both passed along Graham's smear to their readers without bothering to point out that it was hooey. But kudos to Nina Totenberg of NPR for not letting Graham get away with it. She explained to her listeners that it wasn't true.]
Correction, Sept. 19, 2005: In an earlier version of this column, the phrase, "the specific recommendation regarding 18 U.S.C. § 2032 on page" was inadvertently omitted. (Return to the corrected sentence.)