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Recasting Vagueness: The Case of Teen Sex Statutes


Cynthia Godsoe


April 5, 2017

When two minors below the age of consent have sex, who is the victim and who is the offender? Statutory rape law makes consensual sex among minors illegal in almost every state. Where half of high school students have had intercourse, the law’s immense scope and inevitable underenforcement allow prosecutors to virtually define the crime by the tiny percentage of cases they choose. Through the lens of peer statutory rape, this Article introduces and critiques “vaguenets”—broad, under-defined laws that punish widespread and largely harmless conduct, and invite selective enforcement. Like problematic police dragnet searches, the immense sweep of these statutes ensnares much innocent conduct in an effort to root out societal undesirables. For sexually active adolescents, this means disproportionately those breaching heterocentric or racialized gender norms.

This Article brings juveniles into an overcriminalization conversation that has largely ignored them. It also takes a fresh look at a potential tool to curb the punitive state—the constitutional vagueness doctrine. While several scholars recognized vagueness’ historic use as cover for judicial consideration of equality and liberty concerns in the vagrancy cases, contemporary overcriminalization scholars have forgotten this potential. This Article charts the doctrine’s past use to halt excessive moralizing via the criminal law and its revitalization by recent Supreme Court cases, and argues that vagueness, in letter or spirit, can serve as a blueprint for much needed criminal justice reform. It concludes with one such reform, recommending the decriminalization of all consensual peer sex under the age of sixteen.