Adolescent Sexual Experimentation Should Not Be a Crime
Morris Ploscowe was a graduate of Harvard law school who served as chief clerk of the Court of Special Sessions, and later as magistrate, in New York City. Ploscowe also served on the staff of the Wickersham Commission that investigated Prohibition and a variety of other crimes in the U.S. By the 1950s, he was an influential commentator on criminal and family law.
The book from which this excerpt is drawn had a major influence on policymaking in the area of sex crime, including the American Law Institute's Model Penal Code, a touchstone for law reform into the 1980s. Ploscowe's commentary on the age of consent is notable for how it employs new ideas about adolescence and for its emphasis on the gap between the law, public opinion, and legal practice.
This source is a part of the Sexuality, Marriage, and Age of Consent Laws, 1700-2000 teaching module.
Of primary importance are the cases of statutory rape arising out of adolescent sexual experimentation. The sex play of adolescents is not limited by legislatures. The fact that a statute designates an act of sexual intercourse with a girl under eighteen as rape will not normally deter an avid boy friend even if he knows about the statute. There may be considerable doubt in many cases whether the girl wants the boy deterred, for she is usually is a willing partner to the intercourse. A girl may carry on sexually for some time with a boy friend and no complaint will be made by anybody. But when she becomes pregnant, or when he shifts his attentions to some other girl, or when the girl's relatives disapprove of the boyfriend, then a charge of rape is likely to be made. . . . There is growing recognition that it is unfair to characterize this situation, involving sexual experimentation of adolescents, as a felonious rape. In many of these cases grand juries simply refuse to indict and juries fail to convict, even though there may have been no question but that rape was technically committed. In New York, the legislature at the 1950 session made it possible to treat sexual intercourse of boys under 21 with girls under eighteen as a misdemeanor instead of a felony, as theretofore. The punishment prescribed became a normal maximum of one year instead of the ten-year maximum for statutory rape, as theretofore.
Ploscowe, Morris. Sex and the Law. New York: Prentice-Hall, 1951, 180–81. Annotated by Stephen Robertson.