Zounds! Enforcing the law in Idaho! - fornication

National Review, August 12, 1996

### Buckley Jr., Wm. F.

NEW YORK, JULY 9

The Wall Street Journal reports on Gem County in Idaho, which is conducting a daredevil experiment with the law, by enforcing it. Sitting in the statute books all these years is a little derelict that says that "any unmarried person who shall have sex with an unmarried person of the opposite sex shall be found guilty of fornication." The county prosecutor whose bright idea was to apply the law didn't do so indiscriminately. To have done this would of course have meant to repeal the Playboy Philosophy, and nobody thinks himself grand enough or powerful enough to accomplish that. But Mr. Douglas Varie decided to focus on just one aspect. Teenage pregnancy.

As everybody (almost everybody) knows, there is such a thing as prosecutorial discretion, which means that you can't defy the cop who stops you for speeding on the grounds that he didn't stop the other guy for speeding. There are exceptions. If prosecutorial conduct bumps into the civil-rights laws, then intervention by the courts can be tried. If only Hispanics or women are stopped for speeding, they can complain and get a hospitable hearing.

But Mr. Varie didn't start snooping around in motels or parking lots overlooking the scenic splendors of the State of Idaho. He started looking for pregnant teenagers. In fact, he narrowed the search still further. He has been looking for pregnant teenagers who apply for welfare.

Having done this, he then looks for the feller who got the girl in the family way. And although this is often another teenager, sometimes it is not, for instance in a recent case in which the stud, Michael Hopkins, was 22 years old. The penalty for lewd and lascivious behavior can be life imprisonment. Nobody expects this to happen, but the mere thought of it might interfere with Michael's cocksureness in future encounters. (One pregnant girl was sentenced to thirty days for a misdemeanor and she was quite shocked by the severity of the sentence.) The prosecutor pointed out that the community had every right to be shocked at the prospect of a child being born out of wedlock, which increases by a very high percentage the probability that that child will end up in prison, on welfare, illiterate, and on drugs.

Needless to say, the American Civil Liberties Union has got into the act, though it isn't absolutely clear what case it has. The prosecutor asked the general question: Does the community intend to enforce the law against statutory rape? This is defined as sexual encounters with girls under a certain age. What does one do, he asked, in a situation in which a 15-year-old girl is made pregnant by a 22-year-old man, and declines to charge her companion with rape? The common-law provision in such cases is to pronounce any sexual intercourse with under-age girls as that exactly -- rape. And whatever ambiguities beset the law when deciding whether sexual congress took place, there aren't any when the girl is pregnant.

The Idaho experiment reminds us once again of a paradox in the development of social practices in free societies. It is that these societies suffer from heavy criticism of their toughness (the Darwinian reproach) but shrink from getting the benefits from toughness. We terribly much want American children to learn to read and write, and we offer them public facilities in which to learn how to do this. But if they refuse to learn, we do --nothing. We very much desire that youngsters not band together in gangs that harass innocent people, but on the whole, we do nothing about them. We terribly want boys and girls not to create children doomed to neglect, but far from discouraging such activity, we subsidize it.

A free society is one that in most cases imposes penalties by its own devices. If you start a mousetrap factory and produce a product less successful than that of your competitors, what happens is that you go broke. The people who work for you lose their jobs, you lose your capital, and the empty factory building is auctioned off. But if you create one of the one million children born out of wedlock every year, you pass along the welfare cost to the government and, as often as not, produce another child. Mr. Varie thinks that is not a good idea and has come up with the ingenious solution of activating, in however diluted form -- the law. Very much worth watching, Gem County.