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).

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