MAPs and the Radbruch Formula

[WandersGlade]

I have a thread on All The Fallen where I've been arguing about whether the Radbruch Formula could apply to MAPs.

Do laws affecting MAPs satisfy the Radbruch formula?
The Radbruch formula (German: Radbruchsche Formel) is a legal theory which was first formulated in a 1946 essay by the German law professor and politician Gustav Radbruch. According to the theory, a judge who encounters a conflict between a statute and what he perceives as just, has to decide against applying the statute if—and only if—the legal concept behind the statute in question seems either "unbearably unjust" or in "deliberate disregard" of human equality before the law.
https://en.wikipedia.org/wiki/Radbruch_formula

Here was my original argument:

The Disproportionate Targeting Argument:

Premise 1: Discriminatory or unequal treatment in the criminal justice system, including in the sentencing of crimes, is a violation of the principle of human equality before the law.
Premise 2: Statutory rape laws disproportionately target MAPs and could be argued to be discriminatory.
Conclusion: Therefore, statutory rape laws affecting MAPs may be in deliberate disregard of human equality before the law.


However, they argued that it wasn't discriminatory because the laws concerning statutory rape are there to protect children from harm, therefore the Radbruch formula wouldn't apply. My response was that:

A law that is designed to protect children from harm can cause inequality.
Therefore, a law that is designed to protect children from harm is not immune to criticism that it can cause inequality.

They keep implying I'm misusing the formula. What do you guys think?

Side note: Have the people on ATF always been so aggressive against people who ask questions that potentially have pro-contact answers?

[Jim Burton]

The two main identifiable groups targeted by Stat Rape, Grooming, Pornography laws, are MAPs and Minors, the latter of whom are more likely to be prosecuted for these sex crimes during a year of late adolescence than any subsequent year of adulthood.

[Talix]

Based on your argument alone, no actually I'm not seeing it. The fact that statutory rapes laws disproportionately affect MAPs is NOT evidence in and of itself that the law is discriminatory. All groups - MAP or not - are subject to the same test: how old was the sexual partner.

For example, traffic violations overwhelmingly affect people who drive. Does that make traffic violations discrimination against people who drive a lot? No, it makes traffic violations a form of discrimination against people who drive a lot AND break the traffic rules.

I think a more compelling route would be the sexual agency one. Courts have upheld the fundamental right of man to sexual autonomy. For example Lawrence v. Texas, which like the Radbruch test was based on the fundamental rights of man under common law and not on written law.

So the argument would be that the courts cannot regulate the sexual autonomy of youth unless there is a strong compelling government interest, and that there isn't really much evidence to support such a strong compelling government interest in the case of statutory rape of teens. Even for younger kids, you could argue that the right to sexual autonomy forces courts to tolerate only the minimal level of interference in the sex lives of children absolutely necessary to keep them safe.

In some ways I'm kind of curious that this has never been tried before. The careful carve out for "adult" relationships in Lawrence v. Texas is odd. Statutory rapes laws have been wildly disproportionately applied to gay relationships. So is it such a stretch to argue that the age of consent, at least as it pertains to older teens, is really a backhanded way around the common law protections for gay sex?

[Talix]

Cases like this, where the law itself is not inherently discriminatory but it sure feels like it's intended to be discriminatory, come up a lot in common law. And the usual test is if there is a "compelling government interest". Basically, is there a plausible purpose for this law other than just being discriminatory.

In the case of sodomy laws, the answer according to the courts was "no". There just is no good case for how this is protecting public well being. It seems like there is no other decent explanation for a ban on sodomy other than imposing sexual morals on people.

In the case of restrictions on sexual activity of minors, the situation is messier. It does seem like the government has a compelling interesting in protecting minors from predation. And in the case of say a 4yo, I think there is a good case that they are at high risk for predation.

However, I think even the average muggle would have to concede that the argument for protecting a 16yo from predation is pretty suspect. And a serious review of the evidence I think would show that the case for protecting a 13yo from predation via a hard ban is kind of suspect.

Even for younger children, I think you could make an argument that "compelling government interest" only goes so far. I mean sure, you could justify some government imposed restrictions above those that exist for an adult. But a hard "no never" for 12yos seems out of place.

But really, I think the most compelling argument is the uneven application of statutory rape laws. Gay ASMC is wildly more likely to be convicted then Woman/Boy relationships. I think there is good reason to think that some of the use of statutory rape laws is often just a runaround on Lawrence v. Texas.

[WandersGlade]

As I said in my final paragraph, though, the one thing that shows what a lie the "compelling government interest" argument is, is how laws are written not just about offences involving real minors, but also those involving fictional minors. The naked Emperor can be seen for what he really is when people are being thrown in prison over cartoons. At that point it's obvious that the motivation has a discriminatory element. Looking at most people's initial reaction to AMSC is about the disgustingness of the act more than the need to protect children. It's punishing "p***s" that their mind jumps to first of all.

Might be because I think I phrased it slightly differently elsewhere. Like on AtF I think I said something like "laws affecting MAPs in general", whereas here and possibly on the b4um, I focused mostly on statutory rape.
In the original thread, I explained my reasoning for focusing on statutory rape as discriminatory, because I thought if you could challenge that, you could challenge everything else (i.e. it's the hardest case to argue with most people for). With lolicon and shotacon, I think it's much easier to argue that laws are discriminatory.
In any case, Talix's counter-argument is a lot more civil than the ones I received on AtF.

For further context, a big motivation was arguments with people who were German anti-contacts, since they seem to quite often not distinguish between morality and the law. I hoped to draw attention to that distinction, so as to move the conversation away from "this is legal and that's illegal" to "what should the law be?"