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The Mind-Booty ProblemRethinking the age of sexual consent.

By William Saletan
Posted Thursday, Sept. 27, 2007, at 8:02 AM ET

Read more from Slate's Sex Issue.

In Georgia, 21-year-old Genarlow Wilson is serving a mandatory 10-year jail sentence for aggravated child molestation. His crime: When he was 17, he had oral sex with a 15-year-old girl. In Utah, polygamist leader Warren Jeffs has been convicted as an accomplice to rape for orchestrating a sexually coercive marriage between a 14-year-old girl and her 19-year-old cousin. In Michigan, a 53-year-old prosecutor is in custody on charges of entering the state to have sex with a 5-year-old girl.

This is the reality of sex with minors: The ages of the parties vary widely from case to case. For more than a century, states and countries have been raising and standardizing the legal age of consent. Horny teenagers are being thrown in with pedophiles. The point of this crackdown was to lock up perverts and protect incompetent minors. But the rationales and the numbers don't match up. The age of majority and the age of competence are coming apart. The age of competence is fracturing, and the age of female puberty is declining. It's time to abandon the myth of the "age of consent" and lower the threshold for legal sex.

The original age of consent, codified in English common law and later adopted by the American colonies, ranged from 10 to 12. In 1885, Britain and the states began raising the age to 16, ostensibly to protect girls' natural innocence. This moral idea was later bolstered by scientific reference to the onset of puberty.

But the age of puberty has been going the other way. Over the past 150 years in the United States and Europe, the average age of menarche—a girl's first period—has fallen two to four months per decade, depending on the country. In 1840, the age was 15.3 years. By the early 1980s, it was 12.8. At first, the trend was driven by nutrition, sanitation, and disease control. Recently, some analysts thought it had stopped. But dietary changes and obesity may be pushing it forward again. Two years ago, researchers reported that the average age of menarche among American girls, which had declined from 12 years and 9 months in the 1960s to 12 years and 6 months in the 1990s, was down to 12 years and 4 months by the beginning of this decade. Among black girls, average menarche was occurring about three weeks after their 12th birthday.

Getting your period doesn't mean having sex right away. But earlier puberty does, on average, mean earlier sex. According to the most recent data from the U.S. government's Youth Risk Behavior Survey, one of every three American ninth graders has had intercourse. And that's not counting the millions of teens who have had oral sex instead.

Having sex at 12 is a bad idea. But if you're pubescent, it might be, in part, your bad idea. Conversely, having sex with a 12-year-old, when you're 20, is scummy. But it doesn't necessarily make you the kind of predator who has to be locked up. A guy who goes after 5-year-old girls is deeply pathological. A guy who goes after a womanly body that happens to be 13 years old is failing to regulate a natural attraction. That doesn't excuse him. But it does justify treating him differently.

I'm not saying 12 should be the official age of "consent." Consent implies competence, and 12-year-olds don't really have that. In a forthcoming review of studies, Laurence Steinberg of Temple University observes that at ages 12 to 13, only 11 percent of kids score at an average (50th percentile) adult level on tests of intellectual ability. By ages 14 to 15, the percentage has doubled to 21. By ages 16 to 17, it has doubled again to 42. After that, it levels off.

By that standard, the age of consent should be 16. But competence isn't just cognitive. It's emotional, too. Steinberg reports that on tests of psychosocial maturity, kids are much slower to develop. From ages 10 to 21, only one of every four young people scores at an average adult level. By ages 22 to 25, one in three reaches that level. By ages 26 to 30, it's up to two in three.

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William Saletan is Slate's national correspondent and author of Bearing Right: How Conservatives Won the Abortion War.
Illustration by Rob Donnelly.
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