Update: What a difference a day makes, eh? I am not going to change what I wrote yesterday, but since that time it has come out that at least one of the pages in question was 18 at the time of the sleazy IM’s, and the possibility (I don’t know if this will hold up) that there was some prank or set-up of Foley in this. The ex-page has taken the unusual step of hiring a criminal attorney, rather than a civil or PR-type. My guess is that because he resigned, though, Foley knows there is something worth hiding from. We’ll see.
Don’t get me wrong, I still think Foley should have resigned. I think the Republican standards on this type of behavior are still too low. But they at least resign when caught, even when the behavior is simply sordid rather than illegal. The Democrats have been unable to match even that inadequate record for more than two decades, even when there is criminal behavior.
So now read the following, substituting the number 18 for 16.
With the previous post, "Sixteen and Bright Lines" out of the way, let’s look at the bright line issues in the Foley case.
Does the age of consent matter in this case?
If yes, then it is uncertain whether there is a crime here. The age of consent is 16 in the geographical jurisdictions. Whether it is actually 18 over the internet remains murky. Let’s say it is. Foley is guilty of some internet sexual crime. But as the same thing in other contexts is not a crime, it’s hard to take the legal position that this is some heinous, unthinkable crime. It might be possible to take that position morally, if you think that taking advantage of young subordinates is morally heinous regardless of whether it technically qualifies as a crime or not. I might take that position myself. I am not sure I would have any right to hold other people to that moral standard, however, as it’s not illegal. We’re not supposed to impose our moral beliefs on others. Right?
If the age of consent does not matter – if it’s going to go into a discussion about protecting our children, in loco parentis, young people entrusted to our care, etc – then the differences between this case and Monica Lewinsky are interesting. She was 19, this kid was 16. That is clearly a difference of three years of maturity, which can be a lot at that age. She actually had sex with the older man, he didn’t. Foley resigned immediately upon discovery, Clinton didn’t. Clinton lied about it to the public and misled a Grand Jury, Foley didn’t. Ken Starr was called a sex-obsessed pervert for going into the details, no one is making that accusation about the current investigation. So if the age of consent is not a bright line, then the difference in the cases boils down to this: Sexual contact with a 19 year-old subordinate means nothing, but sexual talk to a 16 year-old means the whole weight of the world comes down on you and your associates. That’s not an unreasonable position in some ways. People could think that the three-year difference is large enough to flip the whole situation.
But if you take that second view, then you just gave away the store if you oppose parental notification for abortion, or even birth control. You’re on record believing that a 19-year-old’s choices are much better than a 16 year-old’s.