Statutory rape

The term "statutory rape" is used when national and/or regional governments, citing an interest in protecting minors, consider people under a certain age to be unable to give informed consent, and therefore consider sexual contact with them to be a felony regardless of their stated consent.

The age at which individuals are considered competent to give consent is the age of consent (AOC). Age of consent is usually the age at which an individual can legally have intercourse with an adult, but in some jurisdictions the AOC establishes the minimum age of sexual conduct with anyone, regardless of age. In jurisdictions with the latter, it would be possible to charge two minors with a violation of the state's AOC.

Many jurisdictions have multiple age determiners for AOC, as well as a second "statutory rape age boundary". For instance, an adult engaging in sexual intercourse in a particular jurisdiction with an individual under the age of 12 may be charged with a full statutory rape charge (a charge fully equivalent in punishment and severity to rape) whereas intercourse with an individual between the ages of 13–16 may be a significantly lesser charge (such as, "unlawful sexual conduct with a minor," or, "criminal sexual conduct with a minor,") depending on the jurisdiction, the age difference between the participants, and other factors. Criminal sanctions for violations of the age of consent which are not statutory rape may range from a minor misdemeanor to a high level felony. Some jurisdictions have a third age boundary which is an age of consent that is relevant in situations in which the adult is in a position of authority over the minor (e.g., the minor's teacher, doctor, coach, school principal, mental health provider, et cetera). The massive confusion caused by the various but very different sexual crime laws (which often have legal terms which are not interchangeable or parallel from jurisdiction to jurisdiction) usually leads people to assume that any violation of the age of consent is a "statutory rape" crime.

Laws vary widely in their definitions of statutory rape; some states make exceptions when the older person is also young or of a similar age, or if he or she marries the minor before the act of sexual intercourse or before being charged with the offense. Due to a wide variety of opinions on what the proper age of consent should be, and conflicts between child sex protection laws and the natural exploration of teenage sexuality, statutory rape charges can sometimes be controversial and contradictory.

Some critics contest the legal characterization of unlawful, non-forced sexual contact as "rape" or "sexual assault." In addition to being seen as an incorrect use of those terms, critics believe the absence of a distinction diminishes the severity of actual (forceful) rape. Furthermore, they argue that charges and punishments should reflect the presence of force, so as not to suggest that actual rape is no worse than, for example, non-forced sexual contact with an adolescent.

Rationale of statutory rape laws

The rationale is typically that although a person may be biologically mature enough to desire sexual intercourse, they may, lacking the additional years of experience possessed by legal adults, not be able to make mature or rational decisions as to whom they engage in sexual contact with and how they do so. Thus, even if they willingly engage in sexual intercourse with a legal adult, their sex partner may well have used tactics of manipulation or deceit against which the younger person has not yet developed sufficient discernment or defense.

This is perhaps one of the major points of contention in statutory rape controversies; even a young teenager might possess enough social sense to make informed and mature decisions about sex, and, conversely, some people well above any agreed-upon age of consent might never develop the ability to make mature choices about sex, as even many mentally healthy individuals remain naive and easily manipulated throughout their lives. Any agreed-upon age of consent, therefore, is more or less arbitrary. In general, any law based on a specific age is going to have an element of arbitrariness as it is rooted in generalities about people based on their age groups. Nonetheless, there are many cases, outside of sexual consent, where such legal fictions are enforced, including age of majority and drinking age.

Another rationale comes from the fact that minors are legally, economically and socially unequal to adults. Typically, they are economically dependent, lack full legal rights, and are in fact wards of their legal guardians. All of this impairs their ability to refuse sexual advances without fear of reprisal. This situation is akin to an employee being afraid to turn down their boss because they don't want to get fired. By making it illegal for an adult to have sex with a minor, the minor is given some protection against this.

In addition, minors are less likely than adults to understand about STDs, or to have knowledge of and access to reliable methods of contraception, and young women who want to use condoms may find their prospective partner unwilling. They are also less likely to be in a position where they are capable of raising a child and may not have the option of an abortion without parental consent. For these reasons, minors are less able to avoid the potentially negative consequences of sexual activity, and the situation may be even worse when compounded by the inequality inherent in any relationship with a legal adult. This provides further rationale for protecting minors by not giving them the legal right to consent.

The original purpose of statutory rape laws was to protect young, unwed females from males who might take their virginity, impregnate them, and not take responsibility by marrying them. In the past the solution to such problems was often a forced marriage or "shotgun wedding" called for by the parents of the girl in question. The original rationale was to preserve the marriageability of the girl and to prevent unwanted teen pregnancy.

In such cases the alleged victim was required to be "of virtue" by the standards of the community, making the background of the alleged victim an issue. It was not considered appropriate or necessary to defend the virtue or social standing of a girl who was already sexually active, promiscuous, or involved in prostitution.

Extenuating circumstances

The issue of statutory rape may be further complicated by minors who, for whatever reason (early physical development, calculating use of adult clothing and makeup, fake ID, et cetera) appear to be of consenting age and/or lie about their age in order to pursue sexual relationships with older persons. While it may seem reasonable enough to expect an adult to get to know someone enough to know their true age before engaging in sexual activities, the reality is that in a world where anonymous sexual encounters and other indiscretions are commonplace, someone above the age of consent might find themselves in violation of statutory rape laws without having knowingly engaged in sex with a minor. Often, these cases boil down to the adult's word against the minor's, and which of the two a judge or jury chooses to believe. It is therefore inevitable that, in at least a handful of cases, adults have been "set up" by minors. To complicate the matter even more, the "adults" in such cases may be only a year or two above the age of consent, and local laws may or may not have provisions for cases in which the "adult" and "minor" are nearly the same age.

In some cases, the minor presses charges in retaliation when the relationship does not go as they hoped or the adult tries to end it. It is also not uncommon for charges to be pressed by the parents of the minor when they find out about the relationship, both to penalize the adult sexual partner and to protect their child from further contact. In such cases, the parties to what some might consider a victimless crime are substantially harmed. There is also further potential for harm to the minor due to how they are treated by the police and court system.

In the past, sex involving an adult female and an underage male were often ignored by the law, as many believed that this was not a traumatic or negative experience for teenage boys. However, in recent years, social perceptions have shifted, particularly when the adult female is in a position of responsibility, and there have now been a number of high profile cases (Mary Kay Letourneau, Debra Lafave, Tammy Imre, Kevin Burke, Pamela Rogers Turner) where adult females have been prosecuted for participating in sexual relationships with younger males. These cases mentioned have all involved adult female teachers and young teenage male students.

Homosexual relationships between adults and minors are typically prosecuted more strongly, especially when the couple is male. In Kansas, if someone 18 or younger has sex with a minor no more than four years younger, a "Romeo and Juliet" law limits the penalty substantially. This law, however, is written so as not to apply to same-sex couples, leading to significantly higher penalties for the same act. Also, in some areas, such as Montana, the age of consent is higher for homosexual activity. In this way, statutory rape laws may be biased against homosexuals. ^*

Statutory rape laws as social conditioning

As noted above, it is not wholly inconceivable that even a young teenager, if only an exceptionally mature one, be able to make mature and responsible decisions regarding sex. Parents who perceive their children as possessing sexual maturity at a young age generally expect that these children understand the consequences of sexual intercourse with an older person; namely the grave legal trouble said older persons face as a result of statutory rape laws. Adolescents who feel they are mature enough to engage in sexual activities, especially with older persons, are therefore expected to prove their maturity through abstinence. In this way, statutory rape laws are intended to serve a dual purpose — protecting minors that lack the maturity to make wise choices regarding sex while at the same time encouraging minors to show greater responsibility by exercising restraint and control over their sexual urges. The intended result, at least in theory, is that this restraint and abstinence will result in adolescents who possess more sexual maturity by the time they reach the age of consent.

In actual practice, advocation of abstinence alone has proven unsuccessful in most cases, and statutory rape laws do not discourage sex so much as indicating to minors that it is only acceptable for them to have sexual contact with other minors. Statutory rape laws have not shown a decrease in teen pregnancy rates.

Opposing views

This view is however by no means universal, as there are many people who feel that such sexual repression actually equates to sexual immaturity. Such individuals argue that sexual maturity is the result of the elimination of sexual inhibitions, and provide the strongest voices against the very concept of statutory rape. Obversely, those who regard sexual inhibitions as sexual immaturity and the lack of them as sexual maturity are often accused themselves of being sexually immature for not having developed proper restraint.

Predictably, these larger issues of sexual morality and debate between the sexually conservative and sexually liberal are inexorably linked to the issue of statutory rape, with the most conservative proclaiming that any sex at all outside of certain pre-determined situations such as marriage be treated as immoral and/or criminal, and the most liberal desiring that the mere enjoyment of physical stimulation on any sexual or emotional level be the sole criterion of consent. While most people would not support either of these extremes, vocal minorities on either side of the spectrum have led to stereotyping, pigeon-holing, and straw man fighting engaged in by those leaning nearer the other, causing the issue of statutory rape to grow even more emotionally charged over time. This has made discussion of the issue itself, like most issues dealing with questions of sexual morality and/or responsibility, something of a taboo. None the less, different vocal groups are raising the issue.

Current issues

While there is broad support for statutory rape laws in the United States, there is substantial debate on how vigorously such cases should be pursued and under what circumstances. In July, 2005, Matthew Koso of Falls City, Nebraska was charged with statutory rape for premarital sex with a 13-year-old whom he subsequently married. The decision to prosecute Koso—which was undertaken by the state's Attorney General, overruling the decision of the local prosecutor—has been controversial, with public opinion tilting in favor of Koso. See an example of a web page in opposition to the state's actions: Bruning's "Shotgun Divorce"

In May 2006, the Irish Supreme Court found the existing statutory rape laws to have been unconstitutional as it prevented the defendant from entering a defence (e.g., that he had assumed the other party was over the age of consent). 1This has led to the release of persons held under the statutory rape law and has led to public demands that the law be changed by emergency legislation being enacted. On the 2nd of June 2006 the Irish Supreme Court upheld an appeal by the state against the release of one such person, Mr. A. Mr A was rearrested shortly afterwards to continue serving his sentence. ^*

Decriminalization of statutory rape

The decriminalization of statutory rape, as well as of other laws regarding the age of consent, is defended by some groups and individuals, among which due process of law advocates, some youth rights activists, some libertarians, pedophile activists, and a group of French intellectuals discussing a reform of the French Penal Code in 1977, including philosophers Michel Foucault and Jacques Derrida.

Notable statutory rape convictions

External links

Moral Outrage a group seeking reform of statutory rape laws.

Sex crimes | Child sexual abuse | Rape

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