The claim: RBG said the age of consent must be lowered to 12 years old
Even before the death of Supreme Court Justice Ruth Bader Ginsburg, false claims surrounding the esteemed jurist spread on social media.
A July 24 Facebook post claims Ginsburg said, “The age of consent for sexual acts must be lowered to age 12 years old.” The image cites "Ruth 'Traitor' Ginsburg, 1977."
Some comments on the post noted the claim was false, while others perceived it to be true. One user wrote, "It isn't false. It is on congressional record. She didn't say it OUT LOUD but it is what she supports."
New posts with similar allegations have emerged following the Sept. 18 death of Ginsburg, 87, from complications of metastatic pancreatic cancer.
"YES, RBG ADVOCATED FOR LOWERING THE AGE OF CONSENT TO 12," reads a Sept. 18 Instagram post with the caption: "I anticipate pushback. This has been debated for almost 50 years."
The users behind both posts have not responded to USA TODAY's requests for comment.
Claim stems from 1993 hearings
During a hearing in July 1993 on Ginsburg's nomination to the Supreme Court, Susan Hirschmann, executive director of Eagle Forum, interpreted Ginsburg's recommendations from a report co-authored by Ginsburg as "the age of consent for sexual acts must be lowered to 12 years old."
Similarly, in August 1993, Thomas L. Jipping referenced the same report when arguing against her nomination.
Jipping argued that Ginsburg's recommendations were "drafting women, and sending them into combat. Legalizing prostitution, which she believes is protected by the Constitution," and "lowering the age of consent for sexual acts to 12 years," according to The Congressional Record.
The report Hirschmann and Jipping both cited was "Sex Bias in the U.S. Code," published by the U.S. Commission on Civil Rights in 1977, the year social media users reference in their posts.
However, the report was advocating for gender-neutral language in federal statutes and was held up as an example of such neutral language in proposed legislation at the time.
Report didn't ask to change age of consent
A passage that is commonly cited as a reference to the age of consent claim is from a Senate bill that is included in Ginsburg's report.
"It is a crime for a person to have carnal knowledge of a female not his wife who has not reached 16 years of age," the report says, noting that the legal definition of rape meant the offender was a male and the victim was a female.
"These provisions 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 victims of rape," the report argued. "In the case of statutory rape, the immaturity and vulnerability of young people of both sexes could be protected through appropriately drawn, sex-neutral proscriptions."
The report goes on to recommend removing the phrasing of "carnal knowledge of any female, not his wife who has not attained the age of sixteen years" and suggested replacing it with "a Federal, sex-neutral definition of the offense patterned after S. 1400 section 1633."
The wording of S. 1400, a Senate bill introduced in 1973 that never became a law, said a person would be found guilty of an offense if that person compelled someone to take part in sex by the use of force or threats, drugging or intoxicating a victim or if "the other person is, in fact, less than 12 years old."
Ginsburg's argument in "Sex Bias in the U.S. Code" focused on removing language and assumptions that a sexual assault victim would always be a woman, not on changing the age of consent.
Ginsburg also co-authored a 1974 report with Brenda Feigen Fasteau, "The Legal Status of Women under Federal Law" that examined how federal law frequently employed gendered language. She again quoted directly from S. 1400. The report was used as the basis for the 1977 report “Sex Bias in the U.S. Code."
Conservative UCLA law professor Eugene Volokh told the Washington Post that Ginsburg was likely "the victim of a drafting error."
Slate also reported on the claim in 2005 – after Sen. Lindsey Graham, R-S.C., made the same assertion about Ginsburg's position – and noted Ginsburg was writing about gender, not age, in her reports.
Our rating: False
We rate this claim as FALSE, based on our research. Ginsburg's reports from the 1970s were advocating for more gender-neutral language in.federal law, not to lower the age of consent.
Our fact-check sources:
PolitiFact, Aug. 11, No, Ruth Bader Ginsburg didn’t say she wanted to lower the age of consent
Reuters, Aug. 7, Fact check: False Ruth Bader Ginsburg quote on age of consent
United States Commission on Civil Rights, 1977, Sex Bias in the U.S. Code
Ruth Bader Ginsburg & Linda Feigen Fasteau, Sept. 1974, The Legal Status of Women under Federal Law
Washington Post, Nov. 15, 2005, The Ginsburg Fallacy
Slate, Sept. 16, 2005, Lindsey Graham's Smear
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This article originally appeared on USA TODAY: Fact check: Ruth Bader Ginsburg didn't advocate to lower the age of consent