When Does a Big Age Gap in a Relationship Become Abuse?

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Why you should care

Because it’s legal for a 35-year-old to date a 16-year-old in many places.

OZY’s electrifying prime-time TV show, Third Rail With OZY, is continuing to serve up provocative questions each week, and we want you to weigh in with your thoughts. This week: When does a big age gap in a relationship become abuse? Email thirdrail@ozy.com with your thoughts, and we might feature your answer next week. Missed the debates from last season? Catch up here.

The most shocking revelation to come from the allegations against Alabama candidate for the U.S. Senate, Roy Moore? In all but one of the accusations — the one involving a 14-year-old — the alleged relationships would not be illegal in the Yellowhammer State if consent was granted. In fact, in more than half of U.S. states, a 16-year-old is considered capable of giving full consent to someone of any age. In Portugal, the age of consent is 14. In South Korea? 13.

At what point do these one-sided “relationships” become not OK? And, frankly, how young is too young?

On the wrong side of the cutoff are cases of 18-year-olds being prosecuted for having sex with a high school sweetheart a couple of years their junior. Meanwhile, no legal system in the world forbids, say, a 49-year-old from having sexual relations with a 22-year-old intern (coincidentally, the ages of Bill Clinton and Monica Lewinsky in 1995). As the tide of victims speaking out against sexual abuse continues to sweep the globe, it raises the question: How young is too young?

“Why we should make it OK for a 16-year-old to consent to sex with an adult is ludicrous. This is just paving the way for predatory adults,” says Jennifer Drobac, law professor at Indiana University and author of Sexual Exploitation of Teenagers: Adolescent Development, Discrimination, and Consent Law. But at the same time, “teenagers need … [some] sexual exploration in age-appropriate ways” to learn how to make decisions. So how to resolve this paradox?

I offer a solution — one based in math. In short, the age of consent should not be an arbitrary, universal number, but should change according to the age of the oldest person in the relationship. Here goes:

If x is the age of the youngest person, and y the maximum allowed age of a sexual partner:

for x < 12, y = undefined;
for 12 ≤ x < 15, y = x + 1;
for x ≥ 15, y = 3x — 29.

Fumbling for your calculator? For children under 12, it’s all still illegal; from ages 12 to 14, you can only give consent to someone up to a year older than you; for 15 and up, follow the magic formula: y = 3x — 29, x being the age of the youngest. Simply put, pairing 20-year-olds with 16-year-olds, 26-year-olds with 18-year-olds and 35-year-olds with 21-year-olds is not OK. Obviously, not all sexual encounters within the allowed limits are fine — absolutely not — but it’s assumed that if someone is much older than a teen or young adult, the dynamics of power, experience and maturity in that relationship do not make it possible for the younger person to give fully informed, levelheaded consent.

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Have we figured out a solution to the age of consent problem?

Source Monica Gustin/OZY

The idea of using a formula to calculate appropriate ages is not new. The “half your age plus seven” rule has appeared in popular culture for years — including in The Autobiography of Malcolm X — as a way for a man to judge the appropriate age for a wife. Admittedly, mine is not quite as catchy, but it’s a little more lenient: The Malcolm X rule would have forbidden Johnny Depp and Amber Heard’s recent relationship, whereas mine would not.

Of course, age is just a number, and basing laws upon that is somewhat arbitrary. “Advocates for young people’s sexual well-being will always best focus on the autonomy and willingness of all participants, rather than age,” says Dr. J. Dennis Fortenberry, professor of pediatrics at Indiana University’s School of Medicine. Even for younger people, “we’re using age as a proxy for maturity and understanding,” says Drobac, and although it’s a bad proxy, she says, “we need to use something to draw the line, and age is a somewhat helpful indicator.” All I’m suggesting is that the same should be true for relationships above the age of 18 too — age gaps can continue to be a decent enough proxy for coercive, potentially exploitative relationships.

Drobac’s opinion on my formula? “It was a clever idea,” she says. “I don’t like it, but I thought it was really clever.” Drobac has her own immodest proposal: “Give teenagers the right to ‘assent,’” which can be withdrawn at any time, even after the fact. The idea comes from contract law: Contracts entered into by children can be voided at any time. While some may argue that such a rule would make it impossible for adults to trust the consent, Drobac argues that that’s the point: “You don’t need to be having sex with a minor, for crying out loud!”

On the other hand, consensual relationships between young adults and much older adults can still “bring happiness” to both parties, argues Brook Urick, spokesperson at SeekingArrangement.com, a dating site that matches “sugar babies” (minimum age: 18) with “sugar daddies.” “This is an adult website, and if they’re interested in dating [other] adults who are older than them or younger than them, we definitely think that’s OK,” says Urick.

Drobac disagrees. “Eighteen is too young” to presume full psychosocial capacity for consent, she says. That’s not to say that my formula will solve all the problems: Recent headlines about sexual abuse and harassment are not about sex and consent, but rather “predation and violence against women,” says Drobac, “and that needs to be addressed separately.”

Regardless of whether legislators will be convinced by my formula, perhaps it could cause a little pause for thought in the bedroom. Even if a creepy age gap hasn’t prevented the sexual advances in the first place, doing some math is sure to kill the mood. And that’s probably a good thing.

So what do you think? Where do you draw the line between “a little creepy” and “should be illegal”? Let us know by emailing thirdrail@ozy.com or by answering in the comments below.

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