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?

[Fragment]

I already posted this reply over at B4Um, but for posterity:

A law can both lead to positive outcomes but be discriminatory. The fact that statutory rape laws purport to protect children from says nothing about whether those laws violate the principle of equality. Maybe equality violation is necessary fact of protecting children.

I'd actually say that a bigger weakness in your argument is premise 2. That MAPs are disproportionately targeted by statutory rape laws. If a non-MAP has sex with a minor they are just as likely to be targeted as a MAP that has sex with a minor. There is no unequal application of the law as it stands.

However, even that point can be refuted. Following the same logic it could be said that sodomy laws didn't discriminate against gay men "because gay men are lawfully able to have vaginal sex the same as anyone and straight men caught having anal sex will be prosecuted just the same as anyone." I actually heard arguments of that nature by conservatives floating around when gay marriage was a hot button issue. "Gay men can marry a woman the same as anyone." They are obviously ridiculous arguments when you look at what practical equality means, instead of just looking narrowly at formulaic equality.

Obviously equality is not the paramount virtue in our legal system, though. Prevention of infringements of liberty (ie harming others) rates higher. That's why theft, even from the rich by the poor, is illegal. So, if it can be conclusively proven that minors are definitively harmed by sex with adults (I don't believe it can, but put that aside) then statutory rape laws are philosophically justified. What I can see no justification for, however, are laws banning fictional content with no identifiable victims. Such laws also disproportionately target MAPs, but without even an inch of logic behind them.

[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.

[Fragment]

Talix, you managed to say what I was trying to say much more eloquently.

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.

That's why I think that before we can even consider legal reform that we need to move from "monster" status to "human" status. No-one minds discriminating against "monsters" because they aren't worthy of moral consideration in the first place- they are already on the outer. Just like Frankenstein's creature, the mere fact of existence was enough to merit persecution, which ironically pushed the creature into actions that are worthy of punishment.

[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?"

[Fragment]

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).

This is actually one of the arguments BLR makes in his pro-reform essay that I find especially important. When anti-c people are arguing for MAP rights, one of the things they struggle with is that their attraction is fundamentally an attraction to something that they agree is wrong and should be illegal. While people see AMSC as immoral, they will continue to see people with those feelings as immoral.

If AMSC is legalized, and more importantly, normalized, that disappears. The very foundation people have to discriminate against MAPs vanishes the moment AMSC is seen as morally permissible. Once the sex is "okay", all the other discrimination becomes "very not okay".

As you say, if statutory rape laws fall down, then everything else inevitable falls down with it. Not just other laws like AI CP or loli, but even much of the discrimination and "p***hunters" will go away (though not immediately, of course; there are still homophobes). I can't imagine myself having a relationship with a minor in my life based on my current circumstances, even if it were illegal. But I am still pro-c because I think it's the clearest path forward for MAPs to be able to live as themselves.