False Attack on Ginsburg Is Reprised After Her Death
By Angelo Fichera
Posted on September 23, 2020
After Ruth Bader Ginsburg’s death, social media users reprised a false claim about the late Supreme Court justice — arguing she wanted to “lower the age of consent for sex to 12.” The old falsehood is a distortion of a report she co-authored in the 1970s on sex bias in federal laws.
A decades-old falsehood about Ruth Bader Ginsburg was aired again on social media in the days following the late Supreme Court justice’s Sept. 18 death.
A screenshot of a tweet shared on the Instagram “politicalward” falsely declared: “Why is everyone pretending to be sad that RBG died? It was GOOD riddance by a long shot, she wanted to lower the age of consent for sex to 12.”
Liked by more than 4,000 users, the post called her “a pedophile sympathizer” and celebrated her death with an apparent nod to the rampant QAnon conspiracy theory, calling her “[o]ne less Democrat Pedophile to worry about.” The tweet appears to be from a related Twitter account: Its bio links to a website for “Politicalward Co.,” which sells apparel and accessories supportive of President Donald Trump.
But the attack on Ginsburg’s character is built on a persisting, debunked distortion of work that Ginsburg did in the 1970s against sex discrimination in federal law.
In fact, the claim about Ginsburg has been floated around since at least her Senate confirmation hearings to the high court in 1993. At the hearings, for example, Susan Hirschmann, the then-executive director of a national conservative group called Eagle Forum, read a statement that posed numerous questions, including, “Do you still believe, as you wrote in 1977, that the age of consent for sexual acts should be lowered to 12 years?”
Hirschmann’s statement made reference to “Sex Bias in the U.S. Code,” a 1977 report by the U.S. Commission on Civil Rights that Ginsburg had helped draft as a Columbia University law professor.
The claim surfaced again in 2005 after Republican Sen. Lindsey Graham repeated it during a Senate confirmation hearing on John Roberts, now the Supreme Court’s chief justice, saying, “She wants the age of consent to be 12.”
But the “Sex Bias in the U.S. Code” report cited as evidence for the claims contains no actual arguments for changing the consent age in its 230 pages.
Instead, the report at one point discusses how federal provisions relating to rape “clearly fail to comply with the equal rights principle. They fail to recognize that women of all ages are not the only targets of sexual assault; men and boys can also be the victims of rape. In the case of statutory rape, the immaturity and vulunerability (sic) of young people of both sexes could be protected through appropriately drawn, sex-neutral proscriptions.”
It further says that a proposed Senate bill at the time, S. 1400, or the Criminal Code Reform Act of 1973 “would sex-neutralize the substance of several Title 18 provisions.” The bill was sponsored by Republican Sen. Roman Lee Hruska and co-sponsored by Democratic Sen. John Little McClellan.
The report later offered recommendations for changing the language in several federal laws to be sex-neutral, including a section of the U.S. code on the issue of rape. It suggested the U.S. should “eliminate the phrase ‘carnal knowledge of any female, not his wife who has not attained the age of sixteen years’ and substitute a Federal, sex-neutral definition of the offense patterned after S. 1400 §1633.”
It then included that purported section of the Senate bill, but it incorrectly used the language from a different section (1631), which did reference a consent age of 12.
Sex Bias in the U.S. Code, April 1977: 18 U.S.C. §2032 — Eliminate the phrase “carnal knowledge of any female, not his wife who has not attained the age of sixteen years” and substitute a Federal, sex-neutral definition of the offense patterned after S. 1400 §1633: A person is guilty of an offense if he engages in a sexual act with another person, not his spouse, and (1) compels the other person to participate: (A) by force or (B) by threatening or placing the other person in fear that any person will imminently be subjected to death, serious bodily injury, or kidnapping; (2) has substantially impaired the other person’s power to appraise or control the conduct by administering or employing a drug or intoxicant without the knowledge or against the will of such other person, or by other means; or (3) the other person is, in fact, less than 12 years old.
As we said, the report was explicit that it was recommending a “federal, sex neutral definition” for rape “patterned” after that bill (emphasis ours); the report does not express support or rationale for lowering the age of consent.
The report also recommended changes “of pronoun usage throughout the Senate bill S. 1400 to conform with the proposed sex-neutral terminology format. S. 1400 retains use of the masculine pronoun to cover individuals of both sexes.”
In a 2004 blog post, University of California Los Angeles law professor Eugene Volokh initially suggested that the claim about Ginsburg seemed accurate based on a literal reading of that section of the report. But he later revised his reading of the report, concluding that Ginsburg was likely “the victim of a drafting error” by her team writing the report. He pointed out that the section number of the bill cited — 1633 — was wrongly paired with the language from section 1631.
A copy of the Senate bill shows that section 1633 deals with sexual abuse of a minor, and references a consent age of 16 with exceptions for those close in age.
S. 1400, March 27, 1973: § 1633, Sexual Abuse of a Minor “(a) OFFENSE.—A person is guilty of an offense if he engages in a sexual act with another person who is not his spouse, who is less than sixteen years old, and who is at least five years younger than the actor.
(Volokh wrote that the report’s recommendations were seemingly “also intended to make sure that any sex with under-12-year-olds, regardless of the age of the other party, would be illegal.”)
Volokh told us in a phone interview there is nothing else in the report that suggests Ginsburg was actually advocating a policy of a flat consent age of 12. “I don’t feel like there was really a massive movement to try to lower the age of consent to 12” at the time, he said, “so it would kind of surprise me that they would — without much discussion — that that’s what they would be trying to do.”
Slate’s Timothy Noah, who thoroughly examined the matter in 2005, noted that the language from section 1631 at the heart of the false claims also allowed for rape of a spouse: “I would further guess that neither Ginsburg nor her feminist cohorts at the Columbia Law School Equal Rights Advocacy Project were particularly crazy about the quoted language’s get-out-of-jail-free card for married men who raped their wives.”
The issue did not appear to be of concern for the Senate that confirmed her, 96-3: During the 1993 confirmation hearings, the senators didn’t ask Ginsburg about that part of “Sex Bias in the U.S. Code.”
But Republican Sen. Orrin Hatch, referencing work she did with the American Civil Liberties Union, did ask whether she thought states had the right under the Constitution to criminalize sex between adults and minors, even if the minor “allegedly consents.” She said they did — and referred to “child abuse” as “a deplorable thing.”
Hatch, July 22, 1993: [D]o you have any doubt that the States have the constitutional authority to enact statutory rape laws to impose criminal sanctions on sexual contact between an adult and a minor, even where the minor allegedly consents?
Ginsburg: Not at all, Senator Hatch. What I did have a strong objection to was the sex classification.
Ginsburg: I think child abuse is a deplorable thing, whether it is same sex, opposite sex, male-female, and the State has to draw lines based on age. What I do object to is the vision of the world that supposes a woman is always the victim. So my only objection to that policy was its sex specificity.
Hatch: So as long as they treat males and females equally, that is your concern?
Ginsburg: Yes, and I think that as much as we would not like these things to go on, children are abused, it is among the most deplorable things, and it doesn’t—
Hatch: And the State has power to correct it.
Ginsburg: Yes, and has power to draw lines on the basis of age that are inevitably going to be arbitrary at the edge.
So the claim that Ginsburg “wanted to lower the age of consent for sex to 12” appears to have been based on a drafting error or an out-of-context reading of one paragraph of a 230-page report — whose main focus was sex discrimination — from 1977.
There is nothing else we could find to support the argument that Ginsburg advocated such a position, or that she was a “pedophile sympathizer” for that matter, as is being claimed on social media.
Bader Ginsburg, Ruth and Brenda Feigen Fasteau. “The Legal Status of Women Under Federal Law.” Columbia Law School Equal Rights Advocacy Project. September 1974.
Noah, Timothy. “Lindsey Graham’s Smear.” Slate. 16 Sep 2005.
U.S. Commission on Civil Rights. “Sex Bias in the U.S. Code: A Report of the United States Commission on Civil Rights.” April 1977.
U.S. Senate Committee on the Judiciary. “Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States.” 15 Sep 2005.
U.S. Senate Committee on the Judiciary. “Nomination of Ruth Bader Ginsburg to be Associate Justice of the Supreme Court of the United States.” 23 Jul 2020.
U.S. Senate. “S. 1400, Criminal Code Reform Act of 1973.” (as introduced 27 Mar 1973)
Volokh, Eugene. “It Looks Like Justice Ginsburg Likely Was the Victim of a Drafting Error.” Volokh.com. 30 Sep 2005.
Volokh, Eugene. Law professor, University of California, Los Angeles. Phone interview. 21 Sep 2020.