Thursday, Jul. 10, 2008

Accidental law remains the law, for two years and counting

THE GOOD news is that the Legislature has finally eliminated the “mistake of age” defense for men who have sex with underage girls — a blame-the-victim provision that lawmakers swear they had no idea they passed, but that it took them two full years to repeal.

H.3623, which became law when the governor signed it on June 16, restores to state law the age-old concept that a minor is off-limits to adults and it is the duty of the grown-up to know how old she is, replacing the absurd notion adopted in 2006 that it was the duty of the child — whom we consider too young to make responsible decisions about sex — to volunteer that information.

The bad news is that the so-called “Romeo clause,” which was added to state law in the same moment of collective legislative oblivion as the mistake-of-age defense, remains on the books, even though all sides appeared to have worked out a compromise and one of the biggest hold-outs had actually pushed for the change.

The Romeo clause decriminalized sex between minors. Since the old law rarely had been prosecuted, the practical effect of eliminating it was less than its companion error. What made the change so bad was the message it sent, giving the state’s imprimatur to behavior that is at best unwise and at worst deadly.

The reason the Romeo clause remains state law offers an important lesson about why it’s so crucial to avoid these legislative accidents in the first place.

After months of stalemate, negotiators reached agreement in late May on a plan to replace the blanket immunity for teen sex with a new crime of “sexual conduct between minors,” which would subject 17- and 18-year-olds to up to 30 days in jail and fines of $500 for having sex with 14- and 15-year-olds. This was more severe than the Romeo clause’s blanket immunity for teen sex, but far less severe than the previous law, under which anyone at least two years older than the victim faced a minimum 10-year prison sentence for having sex with a 14- or 15-year-old.

Sen. Brad Hutto, who had been holding up earlier House efforts to eliminate the Romeo clause, brought the compromise before the Senate, and with no debate senators attached it to another child-sex bill. All that remained before the change went to the governor’s desk was a perfunctory final approval in the Senate and a single House vote, which wouldn’t be a problem.

But the next day, progress ground to a standstill when Sen. Linda Short began painting ominous pictures of the effects of criminalizing sex between high school students. She warned fellow senators that their high school seniors could go to jail for having sex with the juniors they were dating. (Teen sex is a bad idea, she said, but do we really want to criminalize it?) Kids who got jilted would go to police and swear they had sex — even if they didn’t — to get back at the jilter.

A couple of senators argued, ever so gingerly, that what the Senate had done the day before made all the sense in the world, but for such an emotional topic, the “debate” was amazingly cordial. You see, Mrs. Short is an extremely popular senator, and this was a very special day for her: It was the day her colleagues had set aside to give speeches and present resolutions to honor her retirement after 16 years in the Senate. In fact, the debate was interrupted for the ceremony. Afterwards, the Senate agreed to delay passage, and during the following session it quietly removed Sen. Hutto’s amendment.

This was an extreme example, cloaked as it was in sentimentality that does not usually hold such sway, but it illustrates one of the central truths about our Legislature: The status quo always has the upper hand. The odds are never even; they are stacked in favor of current law — even when everybody insists that law was passed without their knowledge.

Once a law is on the books, it takes an extraordinary effort to remove it. Senate rules make it impossible even to debate any bill that a single senator opposes unless two-thirds of his colleagues agree to give it one of a limited number of priority positions for debate, and even if that happens, that single senator still can block a vote unless 26 of the 46 senators vote to overrule him personally.

The bar for changing the law is so extraordinary that it even affects the way people think about the law. Sen. Short didn’t have to explain why she believed such horrible things would happen if a teen sex law was passed when they had never happened in all the years when sex between 15- and 17-year-olds carried an even harsher penalty. She didn’t even have to acknowledge that such a law had ever existed. Or that practically everyone in the Legislature swore two years ago they never intended to repeal it, that they had been bamboozled. It was as if the old law had never existed. The law is the law, and it always has been and always will be.

This is what makes these “accidental” laws so dangerous. This is why it is essential that legislators stop rushing complex bills through during the hectic final days of the session, that they stop attaching whole bills to the end of unrelated bills, that they actually read the bills before they pass them. The teen sex law isn’t the first “accidental” law the Legislature has passed, and unless lawmakers start applying a little healthy skepticism, slow down and take their jobs a lot more seriously, it won’t be the last.

Ms. Scoppe can be reached at cscoppe@thestate.com or at (803) 771-8571.