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9 Wm. & Mary J. Women & L. 313 (2002-2003)
From Jailbird to Jailbait: Age of Consent Laws and the Construction of Teenage Sexualities

handle is hein.journals/wmjwl9 and id is 321 raw text is: FROM JAILBIRD TO JAILBAIT: AGE OF CONSENT LAWS AND THE CONSTRUCTION OF TEENAGE SEXUALITIES KATE SUTHERLAND* I. INTRODUCTION The legal regulation of teenage sex in the United States is pervasive. A variety of federal, state and municipal laws directly prohibit sexual activity and expression on the part of teenagers. For example, age of consent laws render teenagers below a certain age incapable of consent to sexual activity with adults, and sometimes with peers. Further, an extensive body of law governs the conduct of adults who would interact sexually with teenagers. For example, going beyond age of consent laws, there are statutes that criminalize sex between teachers and students, and statutes that criminalize the provision of sexually explicit magazines to minors. But the reach of legal regulation extends much further than this. Law has a broad distributive impact; that is, law forms a backdrop to negotiations about sex and sexual expression among teenagers, and also between teenagers, parents, school officials and various other actors.1 There are many contexts in which law does not operate to mandate or prohibit, but rather allocates decision- making power among these different constituencies. Such power underpins much unofficial regulation, for example within families. It also generates vast bodies of official regulations, for example dress codes formulated and enforced by school administrations. Finally, there are many contexts in which a state presence is not immediately apparent. State actors may refrain from regulating where they could, or fail to enforce where they have regulated, thereby leaving the terrain to be sorted out according to existing power relations. These instances of non-intervention do not signal an absence of law; rather, they can be characterized as * Assistant Professor, Osgoode Hall Law School, Toronto, Canada. I would like to thank Annie Bunting, Duncan Kennedy, Carol Steiker, and Leti Volpp. My conversations with each of them about the legal regulation of teenage sex inspired and challenged me at various points in the evolution of this article. 1. I am inspired here by Duncan Kennedy's analysis of the role of law in setting the ground rules for negotiation between capital and labor. See the essay entitled The Stakes of Law or, From Hale and Foucault, in DUNCAN KENNEDY, SEXY DRESSING ETC.: ESSAYS ON THE POWER AND POLITICS OF CULTURAL IDENTITY (1993). 313

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