Statutory rape

In common law jurisdictions, statutory rape is nonforcible sexual activity in which one of the individuals is below the age of consent (the age required to legally consent to the behavior).[1][2] Although it usually refers to adults engaging in sexual contact with minors under the age of consent, it is a generic term, and very few jurisdictions use the actual term statutory rape in the language of statutes.[3]

This article is about the crime. For the song, see Miasma (album).
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Different jurisdictions use many different statutory terms for the crime, such as sexual assault (SA), rape of a child (ROAC), corruption of a minor (COAM), unlawful sex with a minor (USWAM),[4] carnal knowledge of a minor (CKOAM), sexual battery[5] or simply carnal knowledge. The terms child sexual abuse or child molestation may also be used, but statutory rape generally refers to sex between an adult and a minor past the age of puberty, and may therefore be distinguished from child sexual abuse.[1][6] Sexual relations with a prepubescent child is typically treated as a more serious crime.[1][6]

In statutory rape, overt force or threat is usually not present. Statutory rape laws presume coercion, because a minor or mentally handicapped adult is legally incapable of giving consent to the act.

Main article: Age of consent

In many jurisdictions, the age of consent is interpreted to mean mental or functional age.[7] As a result, victims can be of any chronological age if their mental age makes them unable to consent to a sexual act.[7][8][9] Other jurisdictions, such as Kentucky, eliminate the legal concept of "mental age" and treat sexting with a mentally incapacitated person as a specific crime.

Consensual teenage sex is common in the United States. A 1995 study revealed that 50% of U.S. teenagers have had sexual intercourse by the age of sixteen. It is estimated that there are more than 7 million incidents of statutory rape every year. However, it is clear that most incidents are not prosecuted and do not lead to arrests and convictions.[10] Laws vary[11] in their definitions of statutory rape. It is generally intended to punish heinous cases of an adult taking sexual advantage of a minor. Thus, many jurisdictions prohibit allowing a juvenile to be tried as an adult under this law (most jurisdictions have separate provisions for child molestation or forcible rape which can be applied to juveniles and for which a minor can be tried as an adult). Some jurisdictions also specify a minimum difference in age in order for the offense to be applicable. Under such terms, if the adult is, for instance, less than three years older than the minor, no crime has been committed or the penalty is far less severe. These are called "Romeo and Juliet" clauses.

Rationale of statutory rape laws

Statutory rape laws are based on the premise that an individual is legally incapable of consenting to sexual intercourse until that person reaches a certain age. The law mandates that even if he or she willingly engages in sexual intercourse, the sex is not consensual.[12] Critics argue that an age limit cannot be used to determine the ability to consent to sex, since a young teenager might possess enough social sense to make informed and mature decisions about sex, while some adults 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.[13]

Another rationale comes from the fact that minors are generally economically, socially, and legally unequal to adults. By making it illegal for an adult to have sex with a minor, statutory rape laws aim to give the minor some protection against adults in a position of power over the youth.[3]

Another argument presented in defense of statutory rape laws relates to the difficulty in prosecuting rape (against a victim of any age) in the courtroom. Because forced sexual intercourse with a minor is considered a particularly heinous form of rape, these laws relieve the prosecution of the burden to prove lack of consent. This makes conviction more frequent in cases involving minors.[13]

The original purpose of statutory rape laws was to protect young, unwed females from males who might impregnate them and not take responsibility by providing support for the child.[13] In the past, the solution to such problems was often a shotgun wedding, a forced marriage called for by the parents of the girl in question. This rationale aims to preserve the marriageability of the girl and to prevent unwanted teenage pregnancy.[12]

Historically, a man could defend himself against statutory rape charges by proving that his victim was already sexually experienced prior to their encounter (and thus not subject to being corrupted by the defendant).[13] A requirement that the victim be "of previously chaste character" remained in effect in some U.S. states until as late as the 1990s.[14]

Romeo and Juliet laws
See also: Adolescent sexuality

Often, teenage couples engage in sexual conduct as part of an intimate relationship. This may occur before either participant has reached the age of consent, or after one has but the other has not. In the latter case, in most jurisdictions, the person who has reached the age of consent is guilty of statutory rape. In some jurisdictions (such as California and Michigan), if two minors have sex with each other, they are both guilty of engaging in unlawful sex with the other person.[15][16][17] The act itself is prima facie evidence of guilt when one participant is incapable of legally consenting.

Some jurisdictions have passed so-called "Romeo and Juliet laws", which serve to reduce or eliminate the penalty of the crime in cases where the couple's age difference is minor and the sexual contact would not have been rape if both partners were legally able to give consent.[18] Such laws vary, but can include:

  • Rephrasing the definition of the offense itself to completely exclude situations where the difference in age is less than a specific time period.
  • Providing an affirmative defense to statutory rape based on the small difference in the participants' ages, or on evidence of a pre-existing sexual relationship between the accused and the perceived victim that did not constitute statutory rape (e.g. both parties were underage when the relationship started).
  • Reducing the severity of the offense from a felony to a misdemeanor, which prevents loss of civil rights and reduces available penalties.
  • Reducing the penalty in such cases to a fine, probation or community service.
  • Eliminating the requirement that the convicted participant register as a sex offender, or reducing the duration of such registration from life to one, five or ten years.
  • Allowing a convicted party to petition for expungement after serving any adjudged sentence.

Such laws generally apply to a couple whose ages differ by less than a specified number of years. They are, however, generally unavailable in any case where the older participant has an authoritative position over the younger regardless of relative age, such as a teacher/student, coach/player or guardian/ward relationship, or if any physical force was used or serious physical injury resulted. This is normally accomplished by making acts involving these circumstances separate crimes to which the "Romeo and Juliet" defense does not apply.

An example is Texas Penal Code, Section 22.011(e). It provides an affirmative defense to a charge of sexual assault if all of the following apply;

  • The accused was not more than 3 years older than the perceived victim
  • The perceived victim was older than 14 years of age at the time of the offense (age of consent in Texas is 17 years)
  • The accused was not at the time registered or required to register for life as a sex offender
  • The conduct did not constitute incest
  • Neither the accused nor perceived victim would commit bigamy by marrying the other (in other words, neither was married to a third person)

A similar affirmative defense exists in the Texas Penal Code for the related crime of "continuous sexual abuse of a young child or children". Any defense under either law, however, does not apply to the separate crime of "improper educator/student relationship" (sexual relations between a licensed teacher or school employee and a student of the same school), or for "aggravated sexual assault" (the forcible rape statute of Texas law).

Sex differences in statutory rape

Female on male statutory rape

Until the late 1970s, sex involving an adult female and an underage male was often ignored by the law, due to the belief that it is often sexual initiation for the younger male.[19] This view still exists in modern times, as it is glamorized by the media and there may be a gender bias in courts on teacher-student sexual relationships.[20]

Underaged males in these sexual relationships may view the women as trophies and choose not report them to the authorities; it is often a parent who reports these relationships.[21] A 2006 review of scientific literature found that the majority of men who had sex with women as underaged boys hold a positive reaction, with a third of them being neutral and less than 5% being negative toward it. However, these men expressed slightly higher levels of psychological distress than men who had not had these experiences. The authors posit that societal views may disincline men from recognizing negative or abusive elements of the relationships. In contrast, women who were involved with adult men when they were underaged mainly showed negative reactions once they left the relationship. That is, they had come to view the adult men as perverts who could not find willing partners their own age so they resorted to exploiting young, naive girls.[22]

In at least one case, the U.S. courts have held that male victims of statutory rape may be liable for child support for any children resulting from the crime. In County of San Luis Obispo v. Nathaniel J. the 15-year-old victim Nathaniel J. discussed a future relationship with the perpetrator (a 34-year-old woman) and stated that the sex was "mutually agreeable". Given this testimony, the California Court of Appeal held Nathaniel J. financially responsible for his child. The court stated the boy was "not an innocent victim" of the sexual intercourse.[23][24] In another case of a 21-year-old female who raped an 11-year-old male, the woman was convicted and sentenced to six months with suspended time; the sentence appeared to criminalize the victim, as the judge said, "Having read everything before me, it was quite clear he was a mature 11-year-old and you were an immature 20-year-old so that narrows the arithmetic age gap between you."[25]

There have also been high-profile cases in which the adult female is in a position of responsibility over the boy; these include Mary Kay Letourneau, Debra Lafave, Pamela Rogers Turner and Jennifer Fichter.[26][27]

A Star-Ledger analysis reported that, for various reasons, men average longer jail terms in cases of teacher-student sex. An analysis of 97 cases in New Jersey over a decade showed that 54% of male suspects went to prison vs 44% of female suspects, with an average of 2.4 years for men and 1.6 years for women. However, the paper also reported that 96% of the cases studied ended in plea bargains, obscuring the cause of this tendency.[28]

Same-sex statutory rape

In some jurisdictions, relationships between adults and minors are penalized more when both are the same sex. For example, in Kansas, if someone 18 or older has sex with a minor no more than four years younger, a Romeo and Juliet law limits the penalty substantially. As written, however, this law did not apply to same-sex couples, leaving them subject to higher penalties than opposite-sex couples for the same offense. This resulted in higher statutory rape convictions, larger fines, and sex offender registration for teens involved in same-sex statutory rape.[29]

The Kansas law was successfully challenged as being in conflict with the U.S. Supreme Court rulings Lawrence v. Texas and Romer v. Evans.[30] The Lawrence precedent did not directly address equal protection, but its application in the case of State v. Limon (2005) invalidated age of consent laws that discriminate based on sexual orientation in Kansas.[31][32]

Specific laws depending on countries

Denmark

The law reads in Danish:[33]

§ 222. Den, som har samleje med et barn under 15 år, straffes med fængsel indtil 8 år, medmindre forholdet er omfattet af § 216, stk. 2. Ved fastsættelse af straffen skal det indgå som en skærpende omstændighed, at gerningsmanden har skaffet sig samlejet ved udnyttelse af sin fysiske eller psykiske overlegenhed.

Stk. 2. Har gerningsmanden skaffet sig samlejet ved tvang eller fremsættelse af trusler, kan straffen stige til fængsel indtil 12 år.

Which translates roughly to:

§ 222. One who has sexual intercourse with a child under the age of 15, shall be punished by imprisonment for up to 8 years, unless the situation is covered by § 216 paragraph 2. In determining the penalty, it shall be an aggravating circumstance if the perpetrator has gained intercourse by exploiting their physical or mental superiority.

Paragraph. 2. If the offender has gained intercourse by coercion or threats, the penalty may be increased to imprisonment for up to 12 years.

The content of § 216 paragraph 2 specifies the penalty can be increased to 12 years, if the child is under the age of 12.

The Netherlands
  • Article 244
    A person who, with a person younger than twelve years, performs indecent acts comprising or including sexual penetration of the body, will be punished with imprisonment up to twelve years or a fine up to that of the fifth category.
  • Article 245
    A person who, out of wedlock, with a person who has reached the age of twelve but has not reached sixteen years, performs indecent acts comprising or including sexual penetration of the body is liable to a term of imprisonment up to eight years or a fine up to that of the fifth category.

Note on marriage;

  • Article 245, dealing with sex with persons between 12 and 16 years, only applies outside of marriage, however a marriage with someone under 16 requires authorization from the Minister of Justice, which can only be obtained if there are "compelling reasons" for such a marriage.[34]

Notes on the Dutch law;

  • Sexual penetration is not only sexual intercourse. The object doesn't even necessarily have to be a penis or another body part. Giving cunnilingus, receiving fellatio and active French kissing can be considered rape as well.
  • A fine is seldom given to a case of severe crimes, such as statutory rape. In nearly all cases the committer is condemned to prison.
  • Fines are divided into categories. The higher number the category is, the higher is the fine. The maximum fine of the fifth category is €83,000.
  • "Consent" of the minor and the use or absence of violence is not a criterion. If the other is minor, it is statutory rape. The maximum punishment depends on whether the victim is younger than 12 years (then it is up to 12 years' imprisonment) or older than 12 years (the imprisonment will be up to 8 years).

United Kingdom

For England and Wales, the legal framework of the Sexual Offences Act 2003 differentiates between sexual contact with children under 13, and sexual contact with those at least 13 but under 16.[35]

Sexual penetration of a child under 13 is termed Rape of a child under 13, an offence created by section 5 of the Act, which reads:

(1) Rape of a child under 13

A person commits an offence if—

(a) he intentionally penetrates the vagina, anus or mouth of another person with his penis, and
(b) the other person is under 13.

The Explanatory Notes read: "Whether or not the child consented to this act is irrelevant".[36] The term 'rape' therefore is used only with regard to children under 13; consensual sexual penetration of a child above 13 but under 16 is defined as 'Sexual activity with a child', and punished less severely (section 9, which requires the perpetrator to be 18 or over). A minor can also be guilty for sexual contact with another minor (section 13), but the Explanatory Notes state that decisions whether to prosecute in cases where both parties are minors are to be taken on a case-by-case basis.[37] The Crown Prosecution guidelines state "[I]t is not in the public interest to prosecute children who are of the same or similar age and understanding that engage in sexual activity, where the activity is truly consensual for both parties and there are no aggravating features, such as coercion or corruption."[38]

Northern Ireland follows a similar legal framework, under the Sexual Offences (Northern Ireland) Order 2008.[39] This Act overhauled the sexual offenses laws in Northern Ireland, and fixed the age of consent at 16 in line with the rest of the UK; prior to this Act it was 17.

In Scotland, the Sexual Offences (Scotland) Act 2009 also fixes an age of consent of 16, and is also two tiered, treating children under 13 differently than children 13–16. Section 18, Rape of a young child, applies to children under 13.[40] Before the enactment of this Act, Scotland had very few statutory sexual offences, with most of its sexual legislation being defined at common law, which was increasingly seen as a problem in particular for the issue of consent.[41] The creation of a two tier age limit was deemed very important during the drafting of the Act.[42]

Current issues

While there is broad support for the concept of statutory rape as criminal in the United States, there is substantial debate on how vigorously such cases should be pursued and under what circumstances.

In May 2006, the Irish Supreme Court found the existing statutory rape laws to have been unconstitutional, since they prevented the defendant from entering a defense (e.g., that he had reasonably believed that the other party was over the age of consent).[43] This 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 June 2, 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.[44]

In the aftermath of the December 2007 disclosure by then-16-year-old actress Jamie Lynn Spears, the sister of pop star Britney Spears, that the father of her baby is 18-year-old Casey Aldridge,[45] there was talk of the prosecution of Aldridge for statutory rape, which could be done under current Louisiana state law.[46][47] Prosecution in the case was never pursued.

See also

References
  1. Carmen M. Cusack (2015). Laws Relating to Sex, Pregnancy, and Infancy: Issues in Criminal Justice. Springer. p. 10. ISBN 978-1137505194. Retrieved November 13, 2017. Voluntary sexual intercourse with a post-pubescent minor who is younger than the legal age of consent is described as statutory rape. [...] In most states, age of consent is delimited between 16 years old and 18 years old. [...] In almost every jurisdiction, prepubescent children may not engage in any sexual contact. [...] Engaging in sexual contact with a prepubescent child is a serious criminal offense and a felony.
  2. "Statutory Rape Known to Law Enforcement" (PDF). U.S. Department of Justice - Office of Juvenile Justice and Delinquency Prevention. Retrieved 2008-03-24.
  3. "State Legislators' Handbook for Statutory Rape Issues" (PDF). U.S Department of Justice - Office for Victims of Crime. Archived from the original (PDF) on 2008-03-13. Retrieved 2008-03-24.
  4. Cieply, Michael (11 October 2009). "In Polanski Case, '70s Culture Collides With Today". The New York Times.
  5. "794.011 Sexual battery". Official Internet Site of The Florida Legislature. The Florida Legislature. Retrieved 19 May 2013.
  6. Fradella, Henry F.; Sumner, Jennifer M. (2016). Sex, Sexuality, Law, and (In)justice. Routledge. p. 375. ISBN 978-1317528906. Retrieved November 13, 2017. Child molestation: A form of sexual assault committed against a child below a certain age. That age is usually set between 12 and 14 since such ages correspond to the onset of puberty, thereby differentiating the offense from statutory rapes (against post-pubescent adolescents) and various degrees of sexual assaults/sexual batteries against victims over the age of consent for sex.
  7. "G.R. No. 126545". Retrieved 22 August 2015.
  8. "Browse Caselaw". Archived from the original on 2007-10-12.
  9. "G.R. No. 126921". Retrieved 22 August 2015.
  10. "No Child Left Behind Bars: The Need To Combat Cruel and Unusual Punishment of State Statutory Rape Laws | Brooklyn Law School Practicum". practicum.brooklaw.edu. Archived from the original on 2015-10-29. Retrieved 2016-05-03.
  11. "Statutory Rape Laws by State". Retrieved 22 August 2015.
  12. "Can Statutory Rape Laws Be Effective in Preventing Adolescent Pregnancy?". Guttmacher Institute. 2005-06-15. Retrieved 2008-03-24.
  13. "The pros and cons of statutory rape laws". Cable News Network. 2004-02-13. Retrieved 2008-03-24.
  14. C. Cocca, "Jailbait: The politics of statutory rape laws in the United States." SUNY Press (2004). Archived 2015-09-18 at WebCite
  15. "California Code". Findlaw. Retrieved 22 August 2015.
  16. Manson, Pamela (2006-12-06). "Girl, 13, charged as sex offender and victim". Denver Post.
  17. "In re Hildebrant, 216 Mich. App. 384 (1996)". Google Scholar. Retrieved 1 June 2017.
  18. "What Is a Romeo and Juliet Law". ExpertLaw. ExpertLaw.com. 21 Feb 2016. Retrieved 1 June 2017.
  19. Gartner, Richard B. 1999. Betrayed as Boys: Psychodynamic Treatment of Sexually Abused Men. NY:Guildford Press
  20. "Hot For Teacher: Gender Bias in Sentencing of Teachers that have Sex with Their Students - Campbell Law Observer". Campbell Law Observer. 2012-10-02. Retrieved 22 August 2015.
  21. "Many still don't see women as sex predators". Houston Chronicle. 2006-12-17. Retrieved 22 August 2015.
  22. "Impacts and reactions to Statutory Rape" (PDF).
  23. "County of San Luis Obispo v. Nathaniel J. (1996)".
  24. Jones, Ruth (2001–2002). "Inequality from Gender-Neutral Laws: Why Must Male Victims of Statutory Rape Pay Child Support for Children Resulting from Their Victimization". Georgia Law Review. 36.
  25. Webb, Sam (5 October 2015). "Babysitter who had sex with boy spared jail after dad says his son is 'sex mad'".
  26. "Jail term for underage sex woman". BBC News. 2006-12-04. Retrieved 2009-03-08.
  27. "Teacher jailed for seducing boy". BBC News. 2005-08-15. Retrieved 2009-03-17.
  28. "In teacher-student sex cases, men average longer jail terms, newspaper analysis reveals". NJ.com. Retrieved 22 August 2015.
  29. Higdon, Michael J. (2008-02-23). "Queer Teens and Legislative Bullies: The Cruel and Invidious Discrimination Behind Heterosexist Statutory Rape Laws". SSRN Electronic Journal. doi:10.2139/ssrn.1097097. ISSN 1556-5068.
  30. 85898 - State v. Limon - Luckert - Kansas Supreme Court Archived 2006-09-30 at the Wayback Machine
  31. FindLaw's Writ - Grossman: The Kansas Supreme Court Rights a Wrong, Ruling that the State Cannot Penalize a Teenager for Being Gay.
  32. "A table of worldwide ages of consent, including US states". avert.org. 2015-06-23. Retrieved 2010-07-12.
  33. "Straffeloven - Bekendtgørelse af straffeloven - retsinformation.dk". Retrieved 22 August 2015.
  34. See Article 1:31 Minimum age (...) "The Minister of Justice may, for compelling reasons, grant dispensation from the requirement mentioned in paragraph 1".
  35. "Sexual Offences Act 2003". Retrieved 22 August 2015.
  36. Sexual Offences Act 2003 - Explanatory Notes
  37. Office, Home. "Explanatory Notes to Sexual Offences Act 2003". www.legislation.gov.uk.
  38. "Sexual Offence Legislation: Rape and Sexual Offences: Legal Guidance: Crown Prosecution Service". Archived from the original on 25 August 2015. Retrieved 22 August 2015.
  39. "The Sexual Offences (Northern Ireland) Order 2008". www.legislation.gov.uk.
  40. "Sexual Offences (Scotland) Act 2009". Retrieved 22 August 2015.
  41. see the Report on Rape and Other Sexual Offences, by the Scottish Law Commission, page 2
  42. see the Report on Rape and Other Sexual Offences, by the Scottish Law Commission, pages 63 - 66
  43. "Statutory rape law ruled unconstitutional". RTÉ News. 2006-05-23.
  44. "McDowell confident ruling will foil offenders". RTÉ News. 2006-06-02.
  45. "World Exclusive: Jamie Lynn Spears — I'm Pregnant". OKMagazine. Archived from the original on 2007-12-20. Retrieved 2007-12-22.
  46. Jonathan Turley (2007-12-21). "Spears Pregnancy May Result in Television Special Rather than Criminal Charges". Retrieved 2007-12-22.
  47. "Was Jamie Lynn a victim of statutory rape?". Today.com. 2007-12-22. Retrieved 2007-12-22.
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