When do you know?

You know I've been pondering this question myself. In my paranormal romance novel I've got a character, who looks nineteen but is really several centuries old. While I know for most pubs nineteen is fine, usually the minimum age requirement, I still feel strange about have sex scenes with her in the book. But in your position I'd just make sure the readers know how old she truly is. Just because she looks young doesn't mean she is mentally. That's just my opinion.

The visual ages may be a bit odd, but if the relationship is a mother'daughter one, clearly defined as such, then this would squick me out. Sorry. May/December is fine, people who are a thousand years old but look fourteen is fine, but as soon as you start talking about parental feelings turning sexual my bells go off and I'm done reading.

That may just be me, though, so take it as you will.

Lady said:

her stopped age was eleven

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If you're describing a child's body erotically, I think you'll get in trouble no matter how old you say the mind within it is.

The only reference I have for this sort of thing is Octavia E. Butler's last book Fledgling which is scifi but bear with me here.

Her main char was a vampire who looked around 10-12 but you got the impression that she was probably 15-16 and she had sex with like grown men. You don't find out until later that she's like 60. It was a little skivvy at first but the story was so good you kinda over looked it. Then ofcourse once you find out about how old she REALLY is it was pretty much alright.

I don't know if that helps but it was the only thing I could think of.

It may not break guidelines to have a character be adult but look a child, but it will limit the appeal. Sex with sentient animals is also allowed but I have only seen one erotic romance that includes it. Not that I think looking 19 is a problem, that is over age of consent--adult.

Age of consent actually varies from country to country, and from state to state in the US. I think a lot of people would be surprised to see what ages are actually leagal in many places.

Worldwide: http://www.avert.org/aofconsent.htm

US (possibly more detailed): http://www.coolnurse.com/consent.htm
http://www.actwin.com/eatonohio/gay/consent.htm

Most publishers don't seem to take this into account. I see a lot of submission guidelines that say "No pedophilia". I think what they really mean is no sex under the age of 18, though. In truth, pedophilia is specifically and legally defined as sex with a pre-pubescent child. Many people use the term inaccurately to describe underage sex, and many people don't actually know what the legal limits are, even in their own state.

I wish publishers were more specific about exactly waht they mean in their submission guidelines, but I suspect many of them are as clueless as the majority of people are.

If you read some of these guidelines they're pretty silly, for example the age of consent in Massachusetts is 16, although it's illegal if the person is a virgin, according to one web site (I haven't read the actual statute).

The law in my own state (Wisconsin) reads like this:

948.01 Definitions. In this chapter, the following words and phrases have the designated meanings unless the context of a specific section manifestly requires a different construction:
(1) “Child” means a person who has not attained the age of 18 years, except that for purposes of prosecuting a person who is alleged to have violated a state or federal criminal law, “child” does not include a person who has attained the age of 17 years.

Now, doesn't that make it sound like if you have sex with a 17 year old that they aren't actually considered a child after all? I suppose you could charge them with a misdemeanor. Note that federal statutes cover using phones and mail for purposes of soliciting sex, especially across state lines, but they only apply if the act is criminal in the state in which it takes place.

Ages of consent used to be lower, because people used to marry much younger in order to have children as young as possible, to help work the farms. Society has changed though, and the right to marry has been taken away from those people who have been disenfranchised by the constitutional amendment that set the voting age at 18. By federal law all that was required to vote was a 6th grade education, although most states restricted it further.

There are organization dedicated to lowering the voting age to 16, here is one of their web sites: http://www.youthrights.org/votingage.php I find a lot of their arguments convincing.

I think publisher are aware of the line to stay behind to avoid any chance of prosecution, plus a small margin of error, whether it is literally correct or not...

Well, I can't speak for other countries, but I think it's pretty well established that in the US you can't be prosecuted for writing fiction. Taking pictures of underage kids is a totally different matter. However, even in these cases they are restricted to prosecuting for the child being underage, "obscenity" cases have been thrown out by the supreme court.

There is plenty of underage, and even incestuous fiction out there, and some of the sites that post stuff for free get a LOT of traffic. I think this is an indication that the reasons publishers refuse these topics is their own personal squicks, not legal or market forces.

I read elsewhere on this forum that it's appropriate to have a sex scene when it advances the story or teaches more about the character. (I think that's what was said, anyway.)

I think this really has to do with three things. Where you want to try and have it published and their guidelines. Your own personal feelings about this and how you present it.

I can understand the sex from the young-looking character's perspective, and that doesn't bother me, but if I were in the other person's head? That part squicks me out, b/c that person is being aroused by the appearance (there's some physical/external attraction required generally) of someone who has the physical characteristics of a child (a "pre-teen," as you described it).

JD

I disagree. There have defintiely been widely publicised US cases of prosecuting prose works relating to under age characters in sexual situations. A few years ago there was what I believe was a successful prosecution based on some short stories (ETA: links provided below). The internet flies largely under the radar is too large and hairy to police on issue of sexual content, copyright infringement etc but there are still occassionally cases brought (see second link below). A profit-making industry is different and legal actions would be infinitely more likely.

http://www.firstamendmentcenter.org/\news.aspx?id=11728

http://www.pittsburghlive.com/x/pittsburghtrib/search/s_476139.html

To me, if you write stories that make sex with children look like a fun thing to do, you deserve to rot in a dungeon.

That's how old school I get.

Franklin County Prosecutor Ron O'Brien said he hadn't decided whether to appeal to the Ohio Supreme Court or put Dalton on trial again. He said he believes Ohio's child pornography law is constitutional and he dismissed the notion that Dalton's journal was fiction.
The stories, which prosecutors say were never acted on, were about three children — ages 10 and 11 — being caged in a basement, molested and tortured.

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Well, this type of thing certainly squicks me out too, I think it's in terrible taste and highly irresponsible to write about such things in a tittilating fashion. I'm even of the opinion that it is obscene, because I consider most all real violence presented for enjoyment to be obscene. I also consider it obscene to use children who don't know enough to be considered consenting.

However, the guy wasn't convicted in court, he plea bargained, which was later thrown out. Also:

The U.S. Supreme Court has said that child pornography can be prohibited. However, the Court in April 2002 in Ashcroft v. Free Speech Coalition struck down most of the 1996 Child Pornography Prevention Act, a law designed to ban virtual child pornography.

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The court has basically said you can't be prosecuted for thinking or talking about it, as no crime has been commited against a real person.

The U.S. Supreme Court first addressed obscenity in 1957, and the court said obscene materials were not protected speech. The case involved the conviction of New York publisher Samuel Roth on federal charges of transmitting obscene matters through the U.S. mail. He was sentenced to three years in prison, which he served in Lewisburg, Union County. He was convicted in state courts in Pennsylvania and New York for selling James Joyce's "Ulysses" as well as "Blank and Madonna" by Boccaccio and "Anecdota Americana."

In the Roth case, the Supreme Court defined obscenity as anything the average person using community standards would find appeals to "prurient interests" and is "utterly without redeeming social importance."

But that definition proved inadequate.

In 1964, Supreme Court Justice Potter Stewart found it difficult to define obscenity, but said, "I know it when I see it."

"And later Stewart concluded he really didn't know it when he sees it," said Robert Corn-Revere, a First Amendment lawyer in Washington who used to serve as chief counsel to the Federal Communications Commission.

Courts now use the "Miller Test" to determine whether material is obscene. A benchmark 1973 Supreme Court ruling issued in the case of Miller v. California set new standards and attempted to clarify what is and isn't legally obscene.

For Fletcher to be convicted, a jury would have to find:


- the average person, applying contemporary community standards, would find the work as a whole appeals to prurient interest;

- the descriptions of sexual conduct are patently offensive;

- the work as a whole lacks serious literary, artistic, political or scientific value.

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Note that all the 3 points provided by the courts to determine obscenity are value judgments, and are relative to the mores of society.

Please realize that I'm not advocating writing the kind of crap that these people are being prosecuted for. What I'm saying is that the "standards" they are using aren't very standard, and are a poor basis for law, and won't stand the test ot time. Because of this generally these prosecutions fail, they eventually get overturned at some level. Of course, if the courts defined obscenity as presenting violence for the sake of enjoyment a lot of the movie and publishing industry would collapse, goodbye action flicks and thrillers.

Of course, simply being charged and prosecuted is a severe punishment, it uproots your life and it's a huge financial burden to have to defend yourself in court. They should allow people to recover defense costs from the state for failed prosecutions.

Another thing I would like to point out is that these people are being prosecuted for writing about the kidnap, torture, and molestation of children for the sake of titilation. There is a huge difference between that and writing about two teenagers in love with each other.

MargueriteMing said:

Of course, simply being charged and prosecuted is a severe punishment, it uproots your life and it's a huge financial burden to have to defend yourself in court. They should allow people to recover defense costs from the state for failed prosecutions.

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That's the problem, and that's what publishers are trying to protect themselves against when they specify no characters under eighteen. Even if the case is thrown out at the end of the legal process, that's a lot of hassle, expense and bad publicity in the meantime. Enough to destroy a small press, and make a lot of trouble for even a big one. And anything erotic with characters under eighteen is an easy target for someone *looking* for an easy target as a way to make a name for themselves.

It's small comfort to be ruled legal after your business has been destroyed.

There's been plenty of stuff published with underage people in it, though. Look at Lolita, or Belinda or the Sleeping Beauty series by Anne Rice. I think many of the sexually active characters in Mercedes Lackey's herald mage series are under 18. The cases that get prosecuted are really extreme stuff, I don't think the authorities are worried about writing about teenage love, I've never heard of anything like that being prosecuted. Heck, I've seen plenty of sexually active teenagers on prime time television, for god's sake.

Yeah, I doubt very much that publishers specify against under-18 sex because they're afraid they're going to be prosecuted. For one thing, there's no crime in writing about, as Marguerite pointed out. There are lots and lots and lots and lots of books with underaged sex, ranging from abuse to romance. Hell, I've read old Harlequins where the heroine is under 18 (ok, so 17, but still.)

The reason that most erotic and romance publishers include that in their guidelines is mainly because a line has to be drawn somewhere. They're not obligated to publish anything they don't wish to (which has nothing to do with free speech or age of consent laws). They don't wish to publish stories with children as sexual partners. But what's a child? 13? 14? 16? Given that the definition changes from state to state, and country to country, it's easier to just make a blanket "no one under 18" policy and call it good. In other words, it comes down to personal preference. Especially in this genre, because they want to sell books that arouse readers and prompts them to buy new books. Most readers want to be in the position of the characters, somehow (of course, this belief is why so many e-pubs resisted m/m for so long, and clearly, it's not always the case).

But it has nothing to do with being prosecuted. I shudder to think of living in that sort of world.

It isn't just kid+sex act--it is genre erotica presenting that as titillating to the user under the law as it is currently being interpretted (i.e. obscenity not protected by first ammendment). There really isn't much modern prose pornography (which is what erotica is) with minors. Literature can get around it under the 1st ammendment, porn can't. That is why erotica publishers all have this exclusion and many literary presses do not.