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Hannity falsely claimed Ginsburg advocated
legalizing prostitution, lowering the consent age to 12
Media Matters
November 1, 2005
Fox News host Sean Hannity repeated the false claim that Supreme Court
Justice Ruth Bader Ginsburg had supported both "legalized prostitution" and
lowering "the age of consent to 12" prior to her 1993 confirmation hearing. A
1974 report co-authored by Ginsburg did address the constitutionality of
prohibitions on prostitution and did refer to legislation that set the age of
consent at 12 years. But Ginsburg did not assert a position on either issue, as
Media Matters for America previously noted in response to a nearly identical
claim made by Wall Street Journal columnist Manuel Miranda.
During an interview with Sen. John McCain (R-AZ) on the October 31 edition
of Fox News' Hannity & Colmes, Hannity brought up what he called the
"Ginsburg rule" -- commonly known as the "Ginsburg precedent." This is the
deceptive argument -- hatched shortly after the nomination of Chief Justice
John G. Roberts Jr. -- that Senate Republicans responded to Ginsburg's 1993
nomination by putting aside their ideological differences and not requiring her
to answer questions that would signal how she would decide future cases,
thereby establishing a precedent for the opposition party's handling of future
Supreme Court nominees. Hannity went on to detail Ginsburg's "very left-wing"
record:
HANNITY: I guess where I am on this, if you look at Ruth Bader
Ginsburg, I mean, she -- the Ginsburg rule, she doesn't have to answer specific
questions, clearly pro-choice going in, thinks there may even be a
constitutional right to polygamy, has a controversial view we should lower the
age of consent to 12, supports legalized prostitution, very
left-wing.
But Hannity's claims regarding Ginsburg's views on prostitution and the age
of consent rely on a distorted reading of her 1974 report titled "The Legal
Status of Women Under Federal Law." On the issue of prostitution, the report
read: "Prostitution as a consensual act between adults is arguably within the
zone of privacy protected by recent constitutional decisions." While Hannity
and Miranda have misconstrued this sentence as an argument in favor of
constitutional protection for prostitution, Ginsburg was merely stating that an
argument could be made that such activity is protected by the Constitution.
Indeed, during her 1993 confirmation hearing, when Sen. Orrin Hatch (R-UT)
noted this passage, Ginsburg highlighted the presence of the term "arguably."
Hatch went on to concede that the sentence could not be construed as a stated
position: "You were making an academic point. I understand. I'm not trying to
indicate that you were justifying prostitution."
The claim that Ginsburg put forth the "controversial view we should lower
the age of consent to 12" is also false. In a section of the 1974 report
objecting to the "traditional sex discriminatory fashion" in which the United
States Code defined rape, Ginsburg cited a 1973 Senate bill as an example of
legislation that better "conform[ed] to the equality principle." One of the
three circumstances that the bill established as constituting rape read as
follows: "the other person is, in fact, less than twelve years old." But
Ginsburg was noting with approval only the measure's gender-neutral language;
she never directly addressed the clause regarding "age of consent." In a
September 16 column taking issue with this particular criticism of Ginsburg,
Slate.com's Timothy Noah wrote: "What, then, is Ruth Bader Ginsburg's true
crime? In discussing how to rewrite the federal law addressing statutory rape,
Ginsburg failed to state an opinion about what the age of consent should
be.
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