Making the rounds has been the story out of Montana of a judge who found himself in hot water:

A Montana judge has come under fire after handing down a 30-day sentence to a former high school teacher convicted of raping a 14-year-old student and for making statements in court that the victim was “older than her chronological age” and “as much in control of the situation” as her teacher.

Outrage is particularly sharp in Billings, where the crime took place, because the girl committed suicide in 2010, just shy of her 17th birthday, as the criminal case was pending. A protest was planned for Thursday, and organizers have called on Montana District Judge G. Todd Baugh to resign.

The uproar began Monday when Baugh sentenced Stacey Dean Rambold, 54, to 15 years in prison on one count of sexual intercourse without consent, but then suspended all but 31 days and gave him credit for one day served. Prosecutors had asked for 20 years in prison, with 10 years suspended.

Both Dr. Phi and Mike Hunt Rice have taken issue with the press’s reference to the crime as “rape” without a qualifier. Having followed the issue, it’s something that I have noticed more generally. I don’t tend to believe that dropping the qualifier is “intellectually dishonest” as MHR put it, but I do understand the objection.

Is this rape? I am inclined to believe that it’s not, except in the statutory sense. Whether we believe such behavior should be legal or not, the differences between this and holding down a woman while forcing himself on her are manifest. Likewise, this doesn’t compare to a having sex with a woman who is drugged or drunk and unconscious or something close to it. On the other hand, I recently linked to a story in Louisiana about a guard and an inmate having sex, and I have very little difficulty calling that rape regardless of how much she (superficially) consented. There are circumstances in which I would consider consent to be impossible. I draw the line between Montana and Louisiana. Some draw it on the other side of Montana, while others draw it on the other side of Louisiana.

When “Nathan J.” was fifteen, he was legally raped. When the child of the rape was born, he was successfully sued for child support. The court ruled ‘The law should not except Nathaniel J. from this responsibility because he is not an innocent victim of Jones’s criminal acts.’

The Washington Post is calling for the judge’s resignation:

“I’m not sure just what I was attempting to say, but it did not come out correct,” the judge said in a mea culpa issued to the Billings Gazette on Wednesday. He said he would file an addendum to the court file to “hopefully better explain the sentence.” Actually, Montana residents, along with much of the nation, know all they need to know about this case and this judge. His parsing of the sexual exploitation of a troubled teenager by a teacher in a position of trust as not a “forcible, beat-up rape” — and his sentence of a mere 30 days — sent the message that this is a crime that is not to be taken all that seriously. Judge Baugh’s ignorant notions about rape and his insensitivity to victims are an absolute affront to justice, and he should immediately resign.

To their credit, though (both sides of the story and all that), they also ran this piece by Betsy Karasik, which argues that teacher-student sex shouldn’t be illegal and that it may have been the law, rather than the crime, that drove the victim to suicide:

I do think that teachers who engage in sex with students, no matter how consensual, should be removed from their jobs and barred from teaching unless they prove that they have completed rehabilitation. But the utter hysteria with which society responds to these situations does less to protect children than to assuage society’s need to feel that we are protecting them. I don’t know what triggered Morales’s suicide, but I find it tragic and deeply troubling that this occurred as the case against Rambold wound its way through the criminal justice system. One has to wonder whether the extreme pressure she must have felt from those circumstances played a role.

I’ve been a 14-year-old girl, and so have all of my female friends. When it comes to having sex on the brain, teenage boys got nothin’ on us. When I was growing up in the 1960s and ’70s, the sexual boundaries between teachers and students were much fuzzier. Throughout high school, college and law school, I knew students who had sexual relations with teachers. To the best of my knowledge, these situations were all consensual in every honest meaning of the word, even if society would like to embrace the fantasy that a high school student can’t consent to sex. Although some feelings probably got bruised, no one I knew was horribly damaged and certainly no one died.

Several years ago I read a book, the title of which I cannot recall (something about reading signs, there were signs on the cover), about early woman sexuality. It was mostly a descriptive book, the different approaches different young ladies take towards sex, though to the extent it had an “agenda” it tended towards being very supportive of girls taking control of their sexuality. It leaned considerably more towards the feminist direction than not. It had a chapter on young women and older men and was by and large supportive of the notion – or at least the right of women to explore the notion.

All of which drives at one of the complexities of the issue. Which is that it actually doesn’t fall strictly among ideological lines. There are liberal and feminist arguments in support of laws condemning this activity. Arguably, this may be where the framing of the issue as rape comes into play. Feminists would be hard-pressed to support anything that could be construed as supporting rape. At the same time, though, the counter-arguments are also quite feminist in nature. It involves young women taking ownership of their sexuality. Being allowed to decide not just to have sex, but who to have sex with. The notion that young women should be in control of their sexuality – including access to birth control and abortion – is mutually exclusive to the idea that they cannot consent to sex, or that they can only consent to sex with men (boys) roughly their own age.

Ultimately, though, I disagree with Karasik that I don’t think it should be legal, for a teacher, to sleep with a student who is fourteen. Or a non-teacher, for that matter, who is forty-something. I don’t believe in the unqualified sexual autonomy of children, which I consider a fourteen year old to be. Though I support a general loosening of our teenage sex regime, that’s a bridge further than I can go. And on top of that, I think that the power dynamics of teachers and students are, while not comparable to prisoner and guard, cause for potential criminal action in itself. But I don’t think it should live in the same tent as someone who holds a woman down and forces himself on her.

To open this book, and explore this issue, we would need a greater review of how we view teenage sexuality. The two things that shut down the debate are our cultural discomfort with the possibility of two people having sex, and a strong desire never to make excuses for anything that can be called rape. I am not holding by breath for reform.