Thursday, May 23, 2013

What is Equality? Part 1

Attorneys see some fact situations with predictable regularity. What seems to be a novelty to the general public is, to us, an old, familiar song.

The New York Times reports that, in Florida, an eighteen-year-old girl is being prosecuted for a sexual relationship with a fourteen-year-old girl. In many ways, this story is unfolding just like any opposite-sex statutory rape case.

When interviewed by the police, Kaitlyn, the eighteen-year-old, allegedly admitted to the sexual encounters. As a criminal defense attorney, I always marvel, why do people talk to the police? Why do they admit to the essence of the crime?

Kaitlyn also stated that “she did not think about it [being wrong] because” the girl “acted older.” How many times have we heard older men utter those same words when caught with underage girls?

The state attorney has offered a plea bargain under which Kaitlyn would avoid jail time, and, more important, avoid sex offender registration. Kaitlyn's parents are against taking the plea bargain, but I hope that they will reconsider. If Kaitlyn has already admitted to the sex, then she has no defense to present at trial. Avoiding sex offender registration is a huge consideration. Most criminal defendants would snap up such a plea bargain immediately; unfortunately, they seem to be offered rarely.

Kaitlyn's parents criticize Kaitlyn's prosecution because, they say, she is being prosecuted solely because it is a same-sex relationship. I take that to mean that they are alleging selective prosecution: that a neutral law is being applied in a discriminatory fashion. Discussing the difficulties of such a challenge are beyond the scope of a simple blog post. More important, I doubt that they could factually prove selective prosecution. In my experience, prosecutors are just as eager to prosecute opposite-sex statutory rape cases, if not actually moreso.

One could argue for a change to the Florida law on the age of consent. I hope that any change would be gender-neutral. However, that change will not come (and should not come) from a trial-court judge.

Gays and lesbians are fighting for equality, and this is not a case that implicates equality. Equality means that, if something is illegal when straight people do it, then it is likewise illegal when gay people do it. If Kaitlyn were Kyle instead, an eighteen-year-old boy who had sex with a fourteen-year-old girl, then that situation would still be illegal under Florida law.

The problem with equality, however, is that there never seems to be enough of it to go around. Often, it seems that gays and lesbians are treated equally by the majority when there is punishment to be meted out, such as here. But when there are benefits to be conferred, gays and lesbians do not get in on equality there. Florida is a perfect example: It does not treat gays and lesbians equally when issuing marriage licenses, or adoption decrees.

I look forward to a day when the State of Florida treats its gay and lesbian citizens equally in every respect.

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