Monday, January 10, 2011

Not Curious Enough

[TW: Somewhat graphic discussion of sexual assault laws and hypothetical scenarios involving children]

In the UK, a 15-year-old boy, without his parent's knowledge, donated his sperm to his aunt's same-sex partner. Elizabeth Marquardt, hyperventilating at the Family Scholars Blog, seems to want the lesbians prosecuted for child rape. She writes:

"Just curious, what are the child rape laws in the UK? Can a 15 year old legally give consent to participate in an act that impregnates an adult woman?"

Marquardt says she's curious, but the family scholar is apparently not curious enough to take two minutes to google "UK rape laws" to answer her own question, instead letting that heinous insinuation hang out there on the anti-same-sex-marriage-leaning blog she contributes to.

Nonetheless, I would agree with Marquardt's sentiment that it is morally repugnant for the couple in question to have used the sperm of a minor to impregnate a woman. Despite being physiologically capable of impregnating a woman, a 15-year-old boy may not be fully prepared to deal with knowing he has a biological child in the world he will not raise. In addition, problematic power dynamics exist in an aunt-nephew relationship that smack of coercion, no matter how freely a gift like that may appear to be given.

Intriguing, albeit disturbing, legal questions can be raised about this case, questions that many a criminal law or torts professor might like to include in a final exam hypothetical. However, whether this case constitutes "child rape" is not one of them and, indeed, cheapens the very phrase.

As a US attorney who is not an expert in UK law I nonetheless quickly learned that rape in the UK constitutes, to paraphrase, the non-consensual penetration of the vagina, anus, or mouth of another person by a penis. That is, in the UK, only a person with a penis can commit the crime of rape. I don't agree with that definition, but that is the definition of rape in the UK.

The UK also has the crime of "causing a person to engage in sexual activity without consent," but that too requires penetration (by "anything"). There is no indiciation that that occurred in this particular case.

Had the women provided the boy with pornography to masturbate to, they could potentially be charged with "causing a child to watch a sex act."

Had the women watched the boy masturbate, they could potentially be charged with "voyeurism."

Had one of the women had intercourse with him that would constitute statutory rape, or "sexual activity with a child."

But, there is no indication that the women did any of these things.

So, when Marquardt asks whether a 15-year-old boy can "give consent to participate in an act that impregnates an adult woman," the "act" she would be referring to is a 15-year-old boy masturbating by himself, an act which is not a crime.

Any civil or criminal legal wrong would likely be grounded in the act of (a) the boy giving the women his sperm and/or (b) the women accepting it. Perhaps a better question would be whether it constitutes theft for adults to utilize the sperm of a minor and, if not, whether that should be made a crime.

But "child rape"? No. And that the women involved happen to be lesbians does not change that. I mean, isn't that what Marquardt's hyperbole is at least partially about?

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