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Alan Dershowitz Has Argued Against Statutory Rape Laws But The #CreepyDershowitz Trend Misses The Big Picture

In a 1997 article, Alan Dershowitz argued to lower the age of consent to 15 and people are unnecessarily fixating on that.

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The #CreepyDershowitz hashtag has social media aflutter and people are lining up to take their potshots at the embattled Harvard Law emeritus. What’s got people talking is a New Yorker profile that just dropped that resurfaces Dershowitz’s constitutional argument that the age of consent should be lowered to 15 if the law recognizes that a 15-year-old can seek an abortion without interference. From the man synonymous with the “legal hot take,” it’s a blast from the past that looks a lot more problematic when placed conveniently in the context of his involvement with Jeffrey Epstein and the allegations that he may have taken part in Epstein’s sex-trafficking empire.

As the classic “client who doesn’t know what’s good for him,” Dershowitz went to Twitter to double down on the argument — which he made in 1997 — earning the respect of the “no apologies” crowd but alienating pretty much everyone else.

I’m certainly not here to argue for lowering the age of consent, nor am I here to implicitly make basic bodily autonomy contingent upon being able to legally sleep with old men. But fixating on an almost 22-year-old op-ed that makes a line-drawing argument misses the point. Whether the age of consent should be 15 or 17 isn’t as indicative of Dershowitz’s troubling views on sexual exploitation as multiple other anecdotes collected in Connie Bruck’s article, but unfortunately those are being sacrificed at the altar of the cheap and lazy “dur, he helped a pedophile and also wanted more kid sex” line.

An excellent case in point is Dershowitz’s stance on prostitution:

In a 1985 article, in the Gainesville Sun, Dershowitz proposed that a john “who occasionally seeks to taste the forbidden fruit of sex for hire” should not be arrested. The nonprofit executive recalled his discussing the idea in class: “He said, ‘Prostitutes know what they’re doing—they should be prosecuted. But you shouldn’t ruin the john’s life over that.’

If one thinks that prostitution should be illegal, then it’s at least a two-way street and given the known physical and psychological coercion that can infiltrate criminalized sex work, it’s more fair to say the john’s the one we know for certain is making a fully conscious choice. There’s no high-minded legal argument about harmonizing reproductive rights laws here — this is a straight-up “punish women” stance born of a virgin-whore paradigm that places 100 percent of the blame for sexual activity on women. It’s the sort of worldview that would lead one to dismiss the idea that a teenager — even one who reached the age of consent — could possibly be a victim. A lot of sex workers aren’t victims. A lot of sex workers are. Dershowitz blows past all that and thinks the only possible victim in this equation is the poor shlub with a hundred bucks in his pocket.

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Or consider his views on what “consent” even means:

Dershowitz has written frequently that defending the rights of the accused in rape cases is a crucial application of the presumption of innocence. In “Contrary to Popular Opinion,” published in 1992, he included a list of cases in which women acknowledged having made false accusations of rape. He argued, “It is precisely because rape is so serious a crime that falsely accusing someone of rape should be regarded as an extremely serious crime as well. Imagine yourself or a ‘loved one’ being falsely accused of raping a woman!”

Some students thought that he strained logic in order to defend men. “In Dershowitz’s view, men who are accused of rape, there has got to be a defense,” one female student from the 1991 class recalled. “He had convoluted ways of thinking about how men could misinterpret lack of consent. And it wasn’t relegated to when we were speaking about a rape case. Wherever we were on the syllabus, he would bring it up.”

Frankly, 15 or 17 doesn’t really matter if consent is so malleable as to be rendered moot for women of any age.

I get it. In the age of 280 characters, ripping Dershowitz’s statutory rape argument makes for a quicker splash especially while he’s still going on TV and doubling down on Jeffrey Epstein, but it’s not even the most damning aspect of the article. Fixating on the age of consent argument is unnecessarily limiting. The problem isn’t a warped view of how the law should treat girls, but a warped view of the law and women writ large.

Alan Dershowitz, Devil’s Advocate [New Yorker]

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HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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