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Article Excerpt
INTRODUCTION
I: THE EXTERNAL EVOLUTIONARY MODEL A. The Consensus-Conflict Debate B. The Sociology of Social Problems II: PUTTING THE MODEL TO WORK: THE STORY OF STATUTORY RAPE A. The First Century of Statutory Rape Enforcement 1. The Social Purity Movement 2. From Protecting Chastity to Punishing Promiscuity 3. Mid-Century Enforcement: Welfare Meets Statutory Rape B. From Dormancy to Revival 1. Statutory Rape Goes Underground 2. Pregnancy and Politics Collide 3. Adult Men Come under Fire C. Aggressive Enforcement at Century's End 1. The Birth of the Statutory Rape Vertical Prosecution Program 2. Discovering the Harm of Exploitation III: REFLECTIONS THROUGH AN EXTERNAL EVOLUTIONARY PRISM A. The Production of Legal Meaning over Time 1. Interest Groups 2. Statistics and the Media 3. Linkage between Past and Present 4. The Perpetually Disadvantaged Classes B. The Implicit Amendment Approach to Criminal Law-Making C. Implicit Amendment of Other Criminal Law Statutes CONCLUSIONS
The greatest of all legal fictions is that the law itself evolves ... by its own impartial logic, true only to its own integrity, unswayed by expedient concerns. (1)
INTRODUCTION
Scholars have long lamented the failure of the substantive criminal law to place any meaningful limits on the ways in which penal statutes are enforced in modern American society. (2) In addition to criticizing the vast amounts of discretion held by law enforcement agents, observers point to design flaws intrinsic to those institutions of government that control criminal justice policy. (3) The institutional design argument highlights imbalances in the criminal justice system that favor prosecutorial and legislative preferences for breadth at the expense of judicial interest in precision, thereby limiting the ability of micro-procedural reforms to make a difference and enabling prosecutors to exploit the power gap at every opportunity. (4) The result is abusive or unprincipled enforcement of laws that should otherwise reflect widely held norms of social control, causing a troublesome gulf to develop between the laws as written and the laws as lived by the populations subject to their control.
The institutional design critique, while powerfully suggestive of a much-needed systemic overhaul, nonetheless has limits: it fails to explain shifting enforcement patterns for crimes that do not rest on widely held norms of social control. Where the criminal definition itself is or becomes unpopular, unstable or essentially contested, (5) insider gamesmanship alone cannot account for the gap between the law on the books and the law in action or for variation in enforcement patterns over time. For these sorts of crimes external forces push and pull the laws in new directions, reflecting societal debates about whether the alleged social harm is really a problem that the criminal justice system must solve. In other words, change in the substantive meaning of criminal laws may be more of a response to external social trends and interest group maneuvers than a sign of pathology in the design or internal functioning of the legal system itself.
To assess the malleability of unstable crimes we therefore need to think creatively about where the forces of change reside and how they operate, adopting what I call an external evolutionary perspective. Such a perspective requires two levels of analysis. First, rather than simply documenting a statute's legislative history or the record of prosecution statistics, we should pay close attention to the spectrum of political, social, and economic forces in society that led to a law's creation and that promote its use in any given period. Secondly, we must be attuned to how the law changes over time, not just in its formal language and enforcement but also in its rhetorical appeal and public definition. This means we should look beyond the actions of the people who inhabit the justice system and examine social-structural developments that might account for new approaches and new policies. In short, the external evolutionary model both recognizes that unstable laws are subject to a variety of influences on their development and instructs that to understand this development, we need to adopt a broad conception of the law's place in society; efforts that focus exclusively on one era or set of institutional actors are bound to fall short.
While the role played by external factors in the creation of state criminal law definitions has been understudied in the legal academy, (6) our colleagues in other parts of the university have much experience examining the origins and growth patterns of criminal regulatory schemes, crafting works both theoretical and empirical to explain how laws develop in society and, in turn, how those laws affect the development of the society itself. (7) They have focused attention on topics as diverse as the relationship between the criminal law and social norms, the impact of interest groups on the formation and deployment of criminal law policy, and the role of the media in forming our impressions of social problems. In so doing, these authors have developed a rich literature whose insights and vocabulary can illuminate the true range of factors--beyond simply the justice system's institutional design--that create distance between a criminal law's origins and its present uses.
After introducing the theoretical foundations of the external evolutionary model derived from works by historians, sociologists, and criminologists, (8) this Article uses the analytical power of the model to explicate the development of a particular crime whose meaning has been highly contested for more than a hundred years--statutory rape. Although a few authors have examined specific moments in the history of age of consent legislation, (9) for the most part the changing nature of consensual sex crime enforcement has remained somewhat under the radar. This Article augments this small body of literature by assembling the snapshots taken by others, supplemented by contemporary data collected by the author, to provide a moving picture of the statutory rape law in action. The perspective offered by such longitudinal data sheds remarkable light on the "problem" of statutory rape, identifying for us key markers, as well as key actors, in the history of the law's enforcement and helping us to understand their roles in constructing the meaning of this crime over successive generations. This Article thus provides a comprehensive picture of the crime of statutory rape--across time and contextualized by social science theory--that adds significantly to prior works that focus on only a single dimension or unitary period of enforcement.
Moreover, a thorough examination of statutory rape's particular history reveals an important basis for law's malleability: where the formal language of the statute is broad and there is no stable consensus as to the harm caused by the prohibited behavior, variation in enforcement over time is likely to thrive. These two traits work in tandem to increase the gap between the incidence of the behavior covered by the statute and the number and nature of the prosecutions initiated in its name. A broad statute covers behavior in which a lot of people engage, yet prosecutions must always be limited to particular subsets of the population due to resource constraints and other practicalities. (10) When discretionary enforcement is of a crime whose theory of harm is subject to competing definitions and priorities, legal actors are able to ascribe a new purpose to the law when it suits their needs, and each new purpose both suggests and guides that generation's enforcement priorities. (11) A law's breadth and contested nature also explain its periods of dormancy and revival: once a stated purpose loses rhetorical power or social meaning the law falls into disuse, but because it stays on the books, it remains available to address new social problems that future leaders identify as important. In short, for a law that is both linguistically broad and substantively unstable as to content, law enforcement's discretion to reshape its function and purpose is substantially increased, and the law becomes, to quote historian E.P. Thompson, a "useful new toy" for each successive generation. (12)
This pattern of generational reincarnation manifests itself in the history of statutory rape enforcement. Although the formal law has remained largely unchanged over time, the meaning of the law--the understanding of the harm caused by sexual behavior between minors and adults--has been reinvented many times in the past 150 years, and not just at the margins, but at its core. The statutory rape codes have been used at various times to reinforce fathers' interests in their daughters' marriageability, to protect young women's chastity from seductive men, to control promiscuous or disease-laden adolescent females, to enhance child support collection efforts, to reduce teenage pregnancy, and to identify and punish sexual exploitation of teenagers. (13) This process of construction and reconstruction, what Professor Reva Siegel has described in another context as "preservation through transformation," (14) suggests that statutory rape is a broadly-defined crime with multiple personalities, rendering it highly susceptible to manipulation (by interest groups, legal professionals, and their respective policy agendas) and highly resistant to complete repeal.
The story of statutory rape illuminated by the external evolutionary model thus increases our understanding of law's inherent flexibility and identifies the salience of outside actors and institutions in making the laws that govern, and punish, deviant behavior. It also reminds us of the problems that arise when decisionmaking in the criminal justice system becomes unmoored from basic principles of accountability that more transparent processes might prevent, or at least reveal: discriminatory enforcement against unpopular or disadvantaged groups, forfeit of (even a semblance of) societal consensus as a foundational element underlying criminal legislation and prosecution, and the like. These risks are particularly acute with state-based morals legislation (15) like vagrancy statutes (16) or Sunday blue laws, (17) but they are also inherent in certain federal crimes, like mail fraud and RICO, (18) that contain broad language, rest on contested notions of the harms at issue, and accordingly may give rise to litigation that far outpaces the laws' purpose at the time of enactment. (19) While this Article discusses statutory rape's evolution, the lessons that emerge in the statutory rape context therefore can be applied to assessments of other criminal law doctrines as well.
The external evolutionary perspective thus has the capacity to uncover aspects of a law's development that might otherwise remain hidden. Because this approach situates a given law in society over time, rather than in a fixed period, it illuminates the complex path connecting the law's origins to its present uses and can spotlight certain actors or institutions that should be held responsible for adjustments made along the way. Moreover, it provides a wealth of data about social-structural forces and special interests that might account for observable patterns in the behavior of formal legal actors and thus supplements the institutional design story in significant ways. Compared to internal justice system models and conventional doctrinal analysis, the external evolutionary approach offers a more textured portrait of how the criminal law develops over time.
The argument proceeds as follows. Part I of the Article introduces what I have termed the external evolutionary approach to criminal law. After explaining the basic components of the model, it describes the theoretical foundations on which the model rests, paying particular attention to the social problems literature and the consensus-conflict debate in criminology.
The external evolutionary model is put to work in Part II to examine the crime of statutory rape in the United States. Part II.A offers a panoramic view of statutory rape enforcement from the mid-nineteenth century through the mid-twentieth century in one particular jurisdiction--California. (20) Painting with a broad brush, this section of the Article uses the historical evidence collected by other scholars to identify the themes and policies that dominated enforcement during specific periods in California's past. Statutory rape's move from dormancy to revival forms the subject of Part II.B. The pages contained therein explain how the concept of statutory rape fell out of favor in the 1970s, followed by a late-century resurgence motivated by concerns about increases in teenage birth and welfare rates. In Part II.C, the Article dissects the origins and rhetoric of the current enforcement regime. The present approach incorporates many of the ideas and themes that originated with previous administrations (the protection of minors from lecherous adults, the reimbursement of welfare costs), but with a new twist: aggressive prosecution and significant incarceration time for adults who violate the statutory rape law.
Part III interprets these enforcement patterns in light of the broader theoretical concerns raised in Part I. It demonstrates how interest groups, social norms, and the media have had a more profound influence than criminal justice actors on the evolution of statutory rape. The Article then explains the role played by broad language and contested notions of harm in producing evolutionary shifts, in order to make clear the relevance of these concepts for other types of criminal law doctrines. In the Conclusion, the Article reflects on the risks posed by external evolution of statutes, arguing that both disadvantaged classes and our commitment to due process ideals may suffer from excessive reliance on evolution as a tool of criminal law-making.
I. THE EXTERNAL EVOLUTIONARY MODEL
Rather than discussing the justice system as a closed, self-referential entity or concentrating exclusively on legal actors as sources of tension and transformation in the law, historians, sociologists and criminologists have long regarded law as one social institution among many. Treating the criminal law as a mechanism of social control, (21) not just as a series of doctrinal commands, these scholars have identified how law emerges and functions as a source of order--or disorder--in the society over which it reigns. Their works suggest that we should avoid examining criminal laws from too narrow a perspective and instead should adopt an external evolutionary approach to understanding criminal law.
The external evolutionary model starts from the premise that criminal laws are not static features of our society; they change over time. They adapt to new circumstances and can be used for novel purposes in successive generations. For that reason, an evolutionary record cannot be developed from a still photograph; we need to create a moving picture of the criminal law in action to notice points of comparison and contrast, of dormancy and revival, and to identify the full panoply of factors that might account for transformations in the law's meaning and usage.
Full-bodied moving pictures that document a law's evolution are not easy to produce. Scholars must uncover and explain the social, political, and economic contexts that surround cases, executive policy statements, and legislative records. In other words, to construct an external evolutionary record a scholar has to pick apart the details of multiple settings in which legal doctrines are conceived, promoted, enacted, understood, revised, left behind, and revived; in those details we are likely to find inconsistencies and sub-texts that provide clues as to the "real" story behind a law's conversion from original purpose to modern-day function. Often-times, those clues suggest the input of various interest groups, not just interplay among formal legal actors, as the source of change. We should also look for connections between generational perspectives instead of assuming that any particular era is unique in its approach; few ideas are truly novel, and by taking a broad view we are likely to discover that the seeds of a modern policy were planted by prior generations. In short, by identifying points of divergence between a law's enactment and the real-life enforcement regimes that have emerged its wake, and by opening up for inspection the various actors and interests responsible for producing those patterns, the external evolutionary approach offers more analytical power than can be derived from exclusive focus on either one particular era or the behavior and incentives of those formally affiliated with the justice system.
A word of caution is in order. By referring to this as an evolutionary approach, I do not suggest that the development of the criminal law has always been beneficial, or that the law's evolution is geared toward eliminating objectively unnecessary organs (i.e., the legal equivalent of shrinking the human body's appendix or tail bone). (22) Adaptations in the legal landscape may produce either benefits or burdens for the populations affected. Sometimes both outcomes will result, although the impacts of doctrinal or enforcement revisions may be differentially distributed among segments of the population such that a single change can worsen the position of already disadvantaged classes while improving the lot of the law's supporters. Indeed, a net assessment of change as either progressive or regressive usually requires the benefit of hindsight, as the various ripples produced by a single revision may not become apparent for generations after its enactment.
Additionally, when one uses the term evolution there is a danger of giving the impression that these changes happen by themselves, rather than through the efforts of living men and women. (23) There is no "invisible hand (24) in the legal marketplace; policy changes occur because people with authority make numerous small decisions (and some large ones) that send the law in a new direction. Those decision-makers might be elected officials, like legislators, judges, and prosecutors, but they may likewise be police officers, probation officers, or bureaucrats who oversee individual case files or budget items, or noisy members of the populace who succeed in getting their interests placed on the public agenda. Yet while we need to attribute decisions to real people, we need not establish that any of them concretely intended to reform the law or to torment a segment of the population in order to recognize that transformations occur; historians have observed that change may be more "a question of intuition, and of trial and error" (25) than the result of a conscious policy shift or conspiracy. (26)
With those caveats in mind, I turn now to the theoretical bases of the external evolutionary model. Our colleagues in social science departments have rejected the idea of a closed legal system and have pointed instead to the importance of interest groups, social norms, and the media in the formation and development of law as a structural yet dynamic feature of society. As these factors have been discussed extensively in two sets of literature--the consensus-conflict debate and the sociology of social problems--I introduce them below using those literatures as a framework.
A. The Consensus-Conflict Debate
Does the criminal law emerge from widely-agreed upon notions of appropriate and inappropriate behavior, or does it reflect the standards and political will of only certain segments of society? If the former is an accurate portrayal, the law's legitimacy as a tool of social control stems from its reflection (or at least careful tracking) of social norms that most people would obey anyway, and about which there is very little disagreement. The latter model, by contrast, presumes that widespread agreement about social norms is impossible. Instead, elites unilaterally decide the law's content and purpose, such that criminal statutes embody only those norms of which the elites approve and the justice system targets for criminalization the behavior of groups whose normative standards differ from the preferred set. Assessing both the theoretical plausibility and the empirical viability of these propositions lies at the core of the consensus-conflict debate in criminology. (27)
The consensus view is commonly grounded in the work of sociologist Emile Durkheim, whose theoretical writings depict the law as a natural outgrowth of society's pre-existing norms. While trying to answer the question "What holds society together?" Durkheim concluded that the law is both a symbol and an index of deeper societal commitments. (28) Moreover, because custom is the basis of law, law will change along with, and in accordance with, the society from which it emanates. For this reason, divergences between law and custom are either short-lived or "rare" and "pathological." (29) But this does not mean that law works the same way in every society. The type of law employed to enforce social norms will change as the society becomes more heterogeneous; simple societies rely on repressive styles of law, while complex societies embrace restitutive approaches. (30)
Durkheim's view of law as a symbol of underlying customs echoes the sentiments of William Graham Sumner, who early in the twentieth century sought to assess anthropologically the relationship between informal and formal guides to behavior. (31) Sumner identified "folkways" as historically, institutionally, and empirically entrenched patterns of behavior--traditions and taboos--that people follow subconsciously. (32) Folkways become "mores" once notions of reason and justification attach to them. (33) When changes in material conditions force changes in folkways, mores correspondingly adjust as well, since new philosophies and ethical rules must be invented to justify new ways of behaving. (34) Lastly, Sumner theorized that institutions and laws grow from mores, although they are more "rational and practical" in nature than their faith-based predecessors. (35) Given this close relationship between mores and law, Sumner asserted that "to be strong, [legislation] must be consistent with mores[;]" (36) regulations that do not conform will be perceived by the public as too lax or too strict and therefore inappropriate. In short, he warned that "legislation cannot make mores." (37)
While no major theorist currently subscribes to the version of pure congruity between law and custom espoused by Durkheim and Sumner, functionalist explanations of law did gain some traction in the latter part of the twentieth century. (38) According to this view, the law promotes the greater public welfare through general deterrence, dissemination of symbolic messages, orderly settlement of disputes, and control of disruptive behavior. Because all members of the populace stand to gain from these functions, "the law serves the interests of everyone in society and
not just the special interests of powerful groups." (39)
Conflict theory, by way of contrast, is built upon the assumption that our society is not characterized by agreement on major values, but rather is "a congerie of groups held together in a shifting but dynamic equilibrium of opposing group interests and efforts." (40) In this competition, control of the state's police power is a valuable prize because it allows the winner to "decide who is likely to be involved in violation of the law." (41) Conflict criminologists warn us not to take the criminal law as a given, but rather to inquire about the bases for criminality itself--to explore why, in a particular society, some acts are defined as criminal while others are not. (42)
According to the conflict perspective, there is no definition of normal behavior that cuts across all segments of society because the values and interests of various groups are naturally in conflict with one another. (43) Dominant groups, those with the ability to shape public policy, ensure that their ways of distinguishing deviance from normality become enshrined in law and are enforced by criminal justice actors. (44) Subordinate groups, who might subscribe to contrasting ideas about acceptable behavior, run afoul of these criminal prohibitions. Powerful interest groups therefore shape the criminal justice system in two important ways: they design the content of criminal laws so as to prohibit behavior that conflicts with their own interests, and they make sure those laws will be enforced against subordinate groups who adopt other models of behavior. (45)
Two caveats are important here, lest the conflict perspective appear to be more extreme than its adherents believe. First, conflict theorists admit that some laws, such as antitrust regulations or criminal penalties for administrative violations, appropriately reflect the interests of the general population and burden the interests of those in power. (46) Secondly, interest group influence, like conflict, is not a static feature of society, and there is an inverse relationship between the degree of interest group influence on the criminal law and the degree of societal consensus that exists as to the wrongfulness of the behavior at issue. For example, assuming there is widespread agreement as to the desirability of "mala in se" criminal prohibitions that protect against harms to bodily integrity or property, (47) all groups will likely support the need for laws to protect everyone's common interests. (48) But "mala prohibitia" offenses are crimes only because the law makes them so; in this area, which includes laws prohibiting consensual sexual behavior, personal intoxicant use, and certain business activities, we should find widespread disagreement in the populace about the inherent wrongfulness of the behavior. (49) That criminal prohibitions exist despite conflicting ideas about the necessity of state regulation suggests the triumph of certain interests over others in the formation of mala prohibitia laws. (50)
Even with mala in se crimes that appear to garner broad support in today's society, conflict theorists instruct us not to infer too much from the present state of affairs. While some recent empirical studies report broad consensus, rather than conflict, about the values protected by the criminal law, (51) for members of the conflict school these findings are far from conclusive about the empirical validity of each perspective. They contend that survey responses showing consistency in people's assessment of the relative severity of crimes are (1) unreliable indicators of how people genuinely feel about the dicey situations that give rise to real criminal cases and (2) unreliable sources of information about the degree of consensus that existed at the time of the law's enactment. "[W]hen analyzed situationally the presumed agreement on the value rapidly dissolves into conflicting points of view.... [; moreover, the fact] that most people might agree today that [such crimes] constitute socially abhorrent behavior does not mean that the law making those crimes arose out of shared values." (52) In warning against inductive reasoning from the present to the past and in distinguishing abstract formulations from concrete applications, conflict criminologists encourage careful empirical assessments of both "the forces responsible for [a law's] creation" (53) and the disparities that have arisen between a law's origins and its present use(s).
Criminologists in recent years have added nuance to the pure conflict perspective by replacing the "total control by elites" formula with other theoretical possibilities, (54) including "criminal law as garbage can" (55) and "loose coupling." (56) The architects of these "pluralistic conflict" (57) or "non-linear" (58) models strive to sort out the ways that multiple interest groups compete to influence criminal justice policymaking (i.e., to have their problems and agendas formally recognized through law). Given the constant state of jockeying, compromise and negotiation between groups and the degree to which policymaking is decentralized in the United States, these models predict the following outcomes: (1) most groups come away feeling appeased but are rarely fully satisfied; (2) some laws will be supported by a broad consensus, and some will reflect the interests of particularly noisy or powerful groups; and (3) policies adopted at one level may be ignored or subverted by others, causing a diversity of approaches to exist simultaneously but also creating the appearance of disorder. (59)
In sum, the role of interest groups and social norms in shaping the criminal law and justice agenda has received significant attention from criminologists for the past century. Whereas adherents of the consensus view regard the law as a mirror for widespread social norms and thus minimize the power of particular interests to skew the law in their favor, conflict theorists point to significant levels of competition, stemming from diverse ideas about appropriate behavior and power differentials, in the development of criminal definitions. Interest group competition is particularly acute for laws that fail to embody a stable consensus about their social purpose, where there is disagreement about the nature or importance of the social harm they are meant to remedy. While the debate is not entirely over, the importation of pluralistic ideas into the conflict model may reflect a working compromise between the two positions in contemporary criminological discourse. (60)
B. The Sociology of Social Problems
As the consensus-conflict debate makes clear, various segments of a given population may not agree on what constitutes an issue worthy of placement on the public agenda, let alone which issues merit a response from the state in the form of legal change. Hence, whether a concern becomes a "social problem" often depends on the activities of groups interested in the issue, as well as on the response of government officials and news organizations to those activities. Acknowledging that social problems are contingent conditions, rather than objective phenomena, is the first premise of the field of constructivist sociology that examines the development of social problems. The pages that follow address the literature that details how social problems are constructed and evolve, as well as the role of interest groups and media outlets in shaping these processes.
The contemporary study of the "sociology of social problems" began in earnest with the publication of a slim volume by sociologists Malcolm Spector and John Kitsuse in 1977. (61) In Constructing Social Problems, the authors challenged the earlier portrayal of social problems as objective concrete conditions and described them instead as claims making activities by aggrieved persons. (62) In so doing, they shifted attention from the substance of the issue complained about to the behavior of the claimants who turned internal concerns into matters for public debate. The significance of this shift in focus was profound: while many people may perceive irritants in their own lives, the constructivists contended that a social problem does not spring into being unless and until someone publicly voices a grievance and tries to mobilize public institutions to do something about that concern. (63) More importantly, the problem itself is constructed in the course of the assertion and the demand for action, because "[c]laimants construct notions about the causes of the conditions they find onerous, assign blame, and locate officials responsible for rectifying the conditions." (64) Hence, a general theory of social problems must "account for the emergence, nature and maintenance of claims-making and responding activities." (65)
While any person or organization can be a claims-maker, claims typically originate with activists, professionals or others with vested interests in bringing attention to an issue. (66) But the above statement should not be taken to mean that only one interpretation of a problem is possible; in fact, when faced with the same set of facts, different population groups may identify, based on their particular values and interests, (67) different problems that they believe deserve attention. In the crime field, for example, "some people [may believe] the need to suppress certain kinds of criminality is the problem;... others [may see] the criminality [as] a minor issue, and [instead regard] the conduct of the police or the puritanical zeal of the legislature [as] the problem." (68) This variety of views need not stem from conscious manipulation of the evidence; oftentimes several "interpretative packages" are available to characterize a problem--freeway violence, for example, might be a crime problem, a traffic problem, a gun problem, or a courtesy problem. (69) Indeed, even supposedly neutral professional or academic researchers may favor particular constructions of social problems in order to draw more attention to issues they feel are important or for which their agency or profession receives funding or recognition. (70)
Given the multiplicity of interpretations in the marketplace, proponents of contrasting constructions have to compete with each other for space on the public agenda and for the ear of formal legal actors (like legislators and prosecutors). Yet this contest occurs on an unequal playing field. "Some groups--by virtue of their superior power, finances, status, organization, technology, or access to the media--have greater resources to make their constructions appear legitimate, to make their version of reality stick, and to take effective ownership of an issue." (71) The creative use of statistics to sell the group's interpretation of the issue is also critical; as sociologist Joel Best has argued, "big numbers are better...
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