Editorial
Sexual consent law deserved its veto

Gov. Cayetano surely knew his decision to veto the so-called "age of consent" bill would — politically — be a big-time loser.

But on balance, it was the right decision. Unfortunately, reason will step aside for emotion and demagoguery, and the whole thing will become a huge political football.

The problem here is trying to sort out what our guts — our emotions — tell us and what our head should be telling us.

In this case, emotion wins. It is repulsive to think that an adult can trick a child of 14 into sex and get away with it by claiming the relationship was consensual. Surely, there ought to be a law.

The problem is the law the Legislature came up with hardly solves the problem. It seeks to deal with a social problem (young people having sex) by creating a whole new class of lifetime felons.

Under existing Hawai'i law, a minor must be at least 14 in order to consent to sex. Under that age, the sexual relationship is statutory rape, no matter how willing the child was. Most states set that age of consent at 16, or even higher.

It might have made sense to raise the age of consent, as a straightforward matter, to 16. But that, as Cayetano has said, flies in the face of social reality. While we may deplore the situation, the reality is that a substantial number of 14- and 15-year-olds are sexually active today. Can we solve that problem by making their partners into felons, facing up to 20 years in prison and lifetime registration as sex offenders? Hardly.

If anything, as some social workers suggest, it would drive sexually active teenagers further underground. They would be reluctant to seek medical care or counseling because their partners face terrible criminal penalties.

At that point, the Legislature reasoned, why not approach things from an age-difference point of view? That is, make it a felony only if the partner is at least five years older. That creates a legal nightmare, Cayetano suggested.

For instance, if a 14-year-old is having consensual sex with an 18-year-old, no felony. But the day the older person turns 19, he or she becomes guilty of a felony. But only until his partner turns 15, at which point the felony disappears again.

That sets up an absurd situation that would be virtually impossible to prosecute with any kind of fairness.

Hawai'i today has strong laws against sexual assault, which include sanctions for threatening or coercing a teenager into sex. While as a society we may wish that fewer 14- and 15-year-olds were sexually active, this bill would hardly help us achieve that wish.

It deserved to be vetoed and should not be overridden.