Should Children Who Have Sex With Each Other Be Prosecuted?

If two people are equally unable to give consent but have sex anyway, should either be charged with a crime?

It's a question that many college administrators wrestle with when drugs and alcohol are factors in sexual assault disputes. The verdict often seems to be that male students are uniquely responsible for ascertaining that their sexual partners are in a state of mind to consent, even when the female is the initiator and both are intoxicated.

This double standard for men seems to apply to underage teenagers as well. Take, for example, this recent story in The Courier-Journal: The Kentucky Supreme Court has agreed to hear the case of "B.H.," who was 15 when he was charged with sexual misconduct and possessing pornographic material featuring a minor (the latter is a felony charge).

B.H. was in trouble for having sex with his 13-year-old girlfriend and exchanging nude pictures with her. The acts were voluntary, though neither teen could legally consent to sexual activities since they were both under age at the time.

The girl's parents went to the cops after they found out, and B.H. was prosecuted. (Even though his parents could technically have done the same thing to his girlfriend, they opted against that course of action.) He pleaded guilty, had to register as a sex offender and was remanded to a youth treatment center for almost a year. He is now challenging that outcome after the fact.

Kentucky Assistant Attorney General Gregory Fuchs maintains that B.H. pressured the girl and had been involved in one other incident—a prank of a sexual nature—that justified his punishment.

He also cites the girl's testimony that B.H. said he "would tell me what to do and how to do it," and says B.H. was more culpable because he sent the first photo and threatened to tell friends they were having sex if she didn't send him one back.

"There was only one victim in this case, C.W.," Fuchs writes, "and it was just as illegal" for B.H. to "possess child pornography"—the sexted photos—"as it would have been if he was 51 years old."

That may be a defense of what was done to B.H., but it's not a very good defense of the soundness of the law. Of course it's different for a 15-year-old to possess nude photos of a 13-year-old, compared with an old man doing the same. One is predatory and unnatural; the other is an awkward yet remarkably common part of growing up.

When authorities in various states take it upon themselves to crack down on sexting, they invariably find that half the kids are doing it. What's more likely, that half of all underage kids need to be put on a sex offender registry and packed off to reform school or that laws designed to prevent adults from abusing children were written so broadly that they are inadvertently ensnaring some unlucky young miscreants?

Even if I believed these teens were guilty of sexual crimes, I would balk at Fuchs's approach. What better way to foster unhealthy sexual predilections in a kid could there be than telling him he is an illegal exception, publicly labeling him a deviant and exiling him to a school for other deviants?

Some states have recognized the absurdity of criminalizing consensual sexual experimentation between teens, by granting exceptions if they are close in age, both underage or in relationships. As The Courier-Journal noted:

And in neighboring Ohio, the state Supreme Court in 2010 held that it was unconstitutional to criminally charge a child who was himself legally unable to consent when he engaged in sexual conduct with a same-aged peer.

"Each child is both an offender and a victim," that court said, "and the distinction between those two terms breaks down."

The distinction breaks down, except with poorly written laws and in the eyes of overzealous authorities.

Robby Soave is a staff editor at Reason.com. This article first appeared on Reason.com.