Bench Memos

NRO’s home for judicial news and analysis.

Slate’s Noah on Graham and Ginsburg


Slate’s Timothy Noah takes Sen. Lindsey Graham to task for “accus[ing] Justice Ruth Bader Ginsburg of advocating that the age of sexual consent be reduced to 12.” As an ACLU lawyer, Ginsburg in fact did propose legislative changes that would have had the effect of reducing the age of consent for statutory rape under federal law from 16 to 12. (See item six here.) Noah is correct that Ginsburg’s focus was on eliminating the sex bias in then-existing law, but the fact that her ideological blinders apparently led her to propose the radical changes she did is significant.

Noah claims that the pages I cite to show Ginsburg’s proposal show “nothing of the sort.” He is wrong. I referred the reader to “pages 69-71 and the specific recommendation regarding 18 U.S.C. § 2032 on page 76″ of the Ginsburg report. The “specific recommendation” I cite states “Eliminate the phrase ‘carnal knowledge of any female, not his wife who has not attained the age of sixteen years’ and substitute the offense as set forth in S. 1400, §1633.” Pages 70-71 in turn set forth S. 1400’s rape offense, which in subpart (3) would establish statutory rape as a sexual act with another person who “is, in fact, less than twelve years old” (and would thus set the age of consent at twelve).

Oddly, Noah accuses me of providing “other ridiculously distorted examples of Ginsburg’s ‘extremist views,’ ” but the Bench Memos post of mine that he cites consists almost entirely of Ginsburg’s own words (with links to the very pages on which they appear) on prostitution, bigamy, co-ed prisons, Mother’s Day and Father’s Day, and the Boy Scouts and the Girl Scouts. It is Ginsburg’s views that are ridiculous, and it is Noah’s charge that is distorted.

Noah ends his piece with the hopeful suggestion that a typographical error may account for Ginsburg’s substitution of an age of consent of 12 in place of 16. That seems unlikely, as Ginsburg’s report quotes S. 1400 as using the word “twelve,” not the numeral “12.” But if that somehow turns out to be the case, those of us who relied on Ginsburg’s work could hardly be faulted for her mistake.


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