Roman marble sarcophagus created to commemorate the death of a child.

Roman sarcophagus depicting a series of points in the life cycle of a child.

. . .[In] X v the United Kingdom (No. 7212/75 referred to above) the Commission found that an objective and reasonable justification existed for the different ages of consent, there being a realistic basis for the Government's opinion that, given the controversial and sensitive nature of the question involved, young men in the 18-21 bracket who were involved in homosexual relationships would be subject to substantial social pressures which could be harmful to their psychological development. . . .

The Commission, however, observes that its Report in X. v. the United Kingdom is now nearly 20 years old. While it is true that the views expressed in that Report have been subsequently repeated, it is also true that major changes have in the meantime occurred in professional opinions - particularly those of the medical profession - on the subject of the need for the protection of young male homosexuals and on the desirability of introducing an equal age of consent. . . . In particular, . . . the Council of the British Medical Association (BMA), which in 1981 gave evidence to the Policy Advisory Committee that boys and girls of the same age did not possess the same degree of emotional and psychological maturity, observed in 1994 that most researchers now believed that sexual orientation was usually established before the age of puberty in both boys and girls and referred to evidence that reducing the age of consent would be unlikely to affect the majority of men engaging in homosexual activity, either in general or within specific age groups. The BMA Council concluded in its Report that the age of consent for homosexual men should be set at 16 since the then existing law might inhibit efforts to improve the sexual health of young homosexual and bisexual men. . . .

Two such principal arguments emerge from the speeches in Parliament and are adopted and repeated in the Government's submissions. In the first place it is argued that certain young men between the ages of 16 and 18 do not have a settled sexual orientation and that the aim of the law is to protect such vulnerable young men from activities which will result in considerable social pressures and isolation which their lack of maturity might cause them later to repent: it is claimed that the possibility of criminal sanctions against persons aged 16 or 17 is likely to have a deterrent effect and give the individual time to make up his mind. Secondly, it is argued that society is entitled to indicate its disapproval of homosexual conduct and its preference that children follow a heterosexual way of life.

The Commission does not consider that either argument offers a reasonable and objective justification for maintaining a different age of consent for homosexual and heterosexual acts or that maintaining such a differential age is proportionate to any legitimate aim served thereby. As to the former argument, as was conceded in the Parliamentary debates, current medical opinion is to the effect that sexual orientation is fixed in both sexes by the age of 16 and that men aged 16-21 are not in need of special protection because of the risk of their being "recruited" into homosexuality. . . .

As to the second ground relied on - society's claimed entitlement to indicate disapproval of homosexual conduct and its preference for a heterosexual lifestyle - the Commission cannot accept that this could in any event constitute an objective or reasonable justification for inequality of treatment under the criminal law. . . .

Consequently, the Commission finds that no objective and reasonable justification exists for the maintenance of a higher minimum age of consent to male homosexual, than to heterosexual, acts. . . .

Petitioner, then a 17 1/2-year-old male, was charged with violating California's "statutory rape" law, which defines unlawful sexual intercourse as "an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years." Prior to trial, petitioner sought to set aside the information on both state and federal constitutional grounds, asserting that the statute unlawfully discriminated on the basis of gender since men alone were criminally liable thereunder.

JUSTICE REHNQUIST, joined by CHIEF JUSTICE BURGER, JUSTICE STEWART, and JUSTICE POWELL, concluded that the statute does not violate the Equal Protection Clause of the Fourteenth Amendment.

(a) Gender-based classifications are not "inherently suspect" so as to be subject to so-called "strict scrutiny," but will be upheld if they bear a "fair and substantial relationship" to legitimate state ends. Because the Equal Protection Clause does not "demand that a statute necessarily apply equally to all persons" or require "things which are different in fact . . . to be treated in law as though they were the same," a statute will be upheld where the gender classification is not invidious, but rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances.

(b) One of the purposes of the California statute in which the State has a strong interest is the prevention of illegitimate teenage pregnancies. The statute protects women from sexual intercourse and pregnancy at an age when the physical, emotional, and psychological consequences are particularly severe. Because virtually all of the significant harmful and identifiable consequences of teenage pregnancy fall on the female, a legislature acts well within its authority when it elects to punish only the participant who, by nature, suffers few of the consequences of his conduct.

(c). . . a gender-neutral statute would frustrate the State's interest in effective enforcement, since a female would be less likely to report violations of the statute if she herself would be subject to prosecution. The Equal Protection Clause does not require a legislature to enact a statute so broad that it may well be incapable of enforcement.

I'm running
Yes before it's too late
Trying to get away
From that jail bait

It's a rough temptation
But a common invitation
And a good association
But a quick elimination
That will take you out of circulation
Yes I'm talking about that younger generation

So take my advice fellas
For goodness sake
15, 16, 17 that's jail bait

Now they swear that they're in love
That you and her good stars above
And she's lookin mighty good
Just like a young girl should

Well we try to tell ya no
And let that young girl go
But you you know it all
You have yourself a ball

And now it is too late
As you look from cell number 8
I tried to tell you old mate
17 and 1/2 is still jail bait

So tomorrow's the date
For the trial of jail bait
And this you watch and see
The young girl will go free
And you'll get one to three

So out the door she walks
To another man she talks
Before you can count
From one to eight
Another man in for
Jail bait

Please mister judge
If you just let me go this time
I won't mess with them young girls no more
I swear I'm not gunna bother them Mister Judge

I ain't gunna bother nothin fifteen
I ain't gunna bother nothin sixteen
I ain't gunna bother nothin seventeen
I ain't gunna mess with none at eighteen

I'm gunna leave the twenty year old ones alone too
Gunna get me a girl about forty-two
If you just believe what I say Mister Judge Please Mister Judge I ain't gunna bother them young girls no more

Gimme a break Mister Judge

Of primary importance are the cases of statutory rape arising out of adolescent sexual experimentation. The sex play of adolescents is not limited by legislatures. The fact that a statute designates an act of sexual intercourse with a girl under eighteen as rape will not normally deter an avid boy friend even if he knows about the statute. There may be considerable doubt in many cases whether the girl wants the boy deterred, for she is usually is a willing partner to the intercourse. A girl may carry on sexually for some time with a boy friend and no complaint will be made by anybody. But when she becomes pregnant, or when he shifts his attentions to some other girl, or when the girl's relatives disapprove of the boyfriend, then a charge of rape is likely to be made. . . . There is growing recognition that it is unfair to characterize this situation, involving sexual experimentation of adolescents, as a felonious rape. In many of these cases grand juries simply refuse to indict and juries fail to convict, even though there may have been no question but that rape was technically committed. In New York, the legislature at the 1950 session made it possible to treat sexual intercourse of boys under 21 with girls under eighteen as a misdemeanor instead of a felony, as theretofore. The punishment prescribed became a normal maximum of one year instead of the ten-year maximum for statutory rape, as theretofore.

"It has been considered desirable, in the light of what has taken place in Bombay and elsewhere in reference to the Age of Consent Bill . . . that public expression should be given to the views of those who support the measure. . . .

It has been vehemently maintained that in the first instance, such a law will be a direct interference with the rights and duties of the Hindoos [sic], and will so far be a departure from the policy of non-interference laid down in Her Majesty’s Proclamation. . . .

I find that while scholars on both sides are agreed that the Garbhadhan ceremony must follow the appearance of the well-known physical condition [menstruation], there is a difference of opinion among them as to the exact period the Shastras prescribe for consummation. One view is that consummation must immediately follow the wife’s arrival at puberty. The other view is that no text of the Shastras expressly enjoins the performance of the ceremony immediately after the first course, that the precepts of the Shastras leave the matter indefinite, and that its performance is optional and not obligatory as maintained by the opposite side. . . .

I ask you to pause for a moment and calmly consider what object Government can possibly have in view proposing to enact this measure than that of using its influence to arrest the physical and moral deterioration of our people – deterioration due, as you all know, to a practice which the most sensible among us must reprobate. . . . [A]s time rolls on and the benefits of the measure . . . are seen and felt in developing a manlier race of Hindoos [sic], the unborn generations of our race will bless the noble Lord at the head of the Government of India for a measure enacted in the interest of humanity."

The arguments against raising the age higher than thirteen or fourteen were:

1. 1. Girls often mature physically at twelve or fourteen years of age. Mexican girls were often mothers at twelve; being developed, the girl could consent.


2. 2. Working girls, especially typewriters, would blackmail their employers, "urged on by designing mothers."


3. 3. We have a degraded race among us – negro.


4. 4. It will send youths to the gallows and fill our penitentiaries with immature boys.


5. 5. Southern chivalry was a sufficient protection to womanhood.


6. 6. Seduction laws cover the case.

To the Senate and House of Representatives

The increasing and alarming frequency of assaults upon women, and the frightful indignities to which even little girls are subject, have become the shame of our boasted civilization.

A study of the Statutes has revealed their utter failure to meet the demands of the newly awakened public sentiment which requires better legal protection for womanhood and girlhood.

Therefore we, men and women of ____, State of _____ do most earnestly appeal to you to enact such statutes as shall provide for the adequate punishment of crimes against women and girls. We also urge that the age at which a girl can legally consent to her own ruin be raised to at least eighteen years; and we call attention to the disgraceful fact that protection of the person is not placed by our laws upon so high a plane as protection of the purse.