Raping a child is one of the worst things a person can do, deserving of severe criminal penalties. Initiative 108, promoted by Protect Kids Colorado, is the wrong way to address that horrific crime. Per the Secretary of State, petitions for the measure are due February 16.

A basic principle of justice, as conservatives should recognize, is that the punishment should fit the crime. People who commit comparably bad crimes should receive comparably severe penalties. When government fails to adequately punish crimes, it lets criminals off the hook, promotes crime, and puts all of us at greater risk. Yet government also tramples justice when it overpunishes people for their crimes.

Levels of guilt

Even when it comes to killing another person without justification, for example, state law properly recognizes levels of guilt. First-degree murder (“after deliberation”), a class-1 felony, carries the sentence of life in prison. Second-degree murder, a class-2 felony (with exceptions), normally brings a penalty of 8 to 24 years in prison. A person who kills someone through recklessness (manslaughter) or criminal negligence gets a less-severe penalty. Manslaughter, a class-4 felony, carries a penalty from 2 to 6 years in prison. No reasonable person thinks unintentionally killing someone should carry the same penalty as killing someone with deliberation.

Currently, Colorado defines a “sexual assault on a child” (18-3-405) as a class-3 felony (4 to 12 years in prison) or a class-4 felony (2 to 6 years in prison), depending on details. In certain circumstances the maximum prison sentence may be doubled to 24 years (see 18-1.3-406). Generally people convicted of such crimes also must register as a sex offender. A different section (18-3-504) says, “Human trafficking of a minor for sexual servitude is a class 2 felony.” Arguably the penalties should be stiffened. But that’s not the proposal that Protect Kids Colorado put on the table.

Here is a simple example showing that Initiative 108 is ill-conceived and badly written. Let us take a girl age 17 years, eleven months, and a man age 18 years, one month. So the guy is two months older than the gal. Under current Colorado law, if these two teens have consensual sex, that is not a crime, as is perfectly reasonable.

Colorado has what is sometimes called a “Romeo and Juliet” provision allowing sex between people close in age when one or both parties is a minor. Here is the language of 18-3-405: “Any actor who knowingly subjects another not his or her spouse to any sexual contact commits sexual assault on a child if the victim is less than fifteen years of age and the actor is at least four years older than the victim.”

Likewise, the more-general “sexual assault” provision (18-3-402) defines the crime contingent on the following age-related conditions: “At the time of the commission of the act, the victim is less than fifteen years of age and the actor is at least four years older than the victim and is not the spouse of the victim; or at the time of the commission of the act, the victim is at least fifteen years of age but less than seventeen years of age and the actor is at least ten years older than the victim and is not the spouse of the victim.”

Enter Initiative 108. Now let’s say the girl says to her boyfriend, “I’ll have sex with you if you give me the hottest new video game.” Now, if the guy gives her this gift and then has sex with her, under 108 he is subject to life in prison without the possibility of parole.

The two acts are almost identical. In both cases, the girl has consented to sex. At most, you could argue that the guy does something morally wrong by agreeing to give his girlfriend something of value in exchange for sex, and maybe the girl does something wrong by suggesting the trade. So maybe you think the second act properly falls under the criminal prostitution laws.

But to say that the first act (consensual sex, no exchange of value) should not be a crime at all, but the second act (consensual sex in exchange for a gift) should carry a lifetime prison sentence, is completely insane.

Generally, conservatives wish to avoid passing statutes with insane implications. Hence, conservatives should reject 108 and go back to the drawing board if they wish to increase criminal penalties for sexual abuse of children.

The language of 108

Initiative 108 seeks to amend Colorado’s existing statute on “human trafficking for sexual servitude,” 18-3-504 (mentioned above), which includes a section specific to minors. Currently, the statute focuses on those who traffic others for sexual abuse.

Initiative 108 adds to the category of human trafficking any person who “knowingly trades anything of monetary value to buy or sell sexual activity with a minor.” And it subjects all perpetrators of human trafficking of a minor, including the 18-year-old who gives his 17-year-old girlfriend a video game for sex, to a class-1 felony with “life in prison without parole or release.”

Now, maybe you would argue that prosecutors are not idiots, and they would be unlikely to prosecute the 18-year-old in our case under the human trafficking laws. To this I have three replies.

First, although prosecutors are not idiots, they typically are very busy, and they are by the nature of their office political animals. So prosecutors do not always seek the most just outcomes.

Second, conservatives do not typically accept in other contexts the cold comfort that prosecutors might not bring to bear the full weight of a badly written law. For example, when it comes to gun legislation, usually I hear conservatives warn about the potential abuses of the laws by prosecutors driven by political bias and blinded to justice.

Third, conservatives are supposed to embrace Constitutionalism, including the Bill of Rights, including the right to a jury trial. When prosecutors threaten to radically overpunish a defendant to strong-arm a plea deal, as Initiative 108 allows in some cases, that seriously undermines the right to a jury trial.

We also can hope that a jury would negate the worst applications of badly written law. But, generally, if we have to rely on jury nullification, something has gone badly wrong in the drafting of statutes.

One approach Protect Kids Colorado might have taken (and might promote in the future) is to add language to the sexual-assault statutes imposing more-severe penalties for those seeking to buy sex with children. To achieve justice, such language would have to take into account severity of offense. The 18-year-old giving his 17-year-old girlfriend a video game in exchange for sex is not remotely as bad as someone paying to rape six-year-olds, and the law should not treat those two cases the same, as Initiative 108 does.

After all, conservatives are supposed to care about achieving just law, not just making emotional political statements, right?

Ari Armstrong writes regularly for Complete Colorado and is the author of books about Ayn Rand, Harry Potter, and classical liberalism. He can be reached at ari at ariarmstrong dot com.