Statutory rape

This article is about the crime. For the Black Dahlia Murder song released on the album Miasma, see Miasma (album).

In some common law jurisdictions, statutory rape is sexual activity in which at least one person is below the age required to legally consent to the behavior. Although it usually refers to adults engaging in sex 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.

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), carnal knowledge of a minor (CKOAM), unlawful carnal knowledge (UCK), sexual battery or simply carnal knowledge.

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

The term statutory rape generally refers to sex between an adult and a sexually mature minor past the age of puberty. Sexual relations with a prepubescent child, generically called child sexual abuse or molestation, is typically treated as a more serious crime.

Age of consent

Main article: Age of consent

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

Laws vary 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 until a person reaches a certain age, that individual is legally incapable of consenting to sexual intercourse. Thus, the law assumes, even if he or she willingly engages in sexual intercourse, the sex is not consensual. 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.

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.

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 to be 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.

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. 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.

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). A requirement that the victim be "of previously chaste character" remained in effect in some U.S. states until as late as the 1990s.

Romeo and Juliet laws

See also: Adolescent sexuality

Often, teenage couples engage in sexual conduct as part of an intimate relationship. This may start to occur before either participant has reached the age of consent, or after one has but the other has not. In most jurisdictions, the person who has reached the age of consent would be guilty of the statutory rape provision. In some jurisdictions (such as California), if two minors have sex with each other, they are both guilty of engaging in unlawful sex with the other person. Most jurisdictions, as previously stated, consider the act itself to be prima facie evidence of guilt, as any consent between partners, even if freely given, does not meet the standard of law, as it is given by a person the law has defined as being incapable of giving consent. Thus the accused individual often has no defense.

These aspects have often been considered unjust, leading to the passage of 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 is only considered rape because of the lack of legally recognized consent. 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.
• 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
• 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).

Gender differences in statutory rape

Female and male statutory rape

In the past, sex involving an adult female and an underage male was often ignored by the law, and was often interpreted as a sexual initiation for the younger male. A Star-Ledger analysis reveals significant disparities when abuses perpetrated by females are evaluated by penal courts: men are on average sent to jail in more cases and receive longer sentences (on average, a man gets a 50% longer prison sentence). These disparities reflect a biased approach by courts. The majority of underaged adolescent males involved in these sexual encounters view them as positive, with about a third having a neutral view, and only a minority of 5% being negative.

Additionally, controversial were cases when the adult female is in a position of responsibility over the boy, and there have now been a number of high-profile cases (Mary Kay Letourneau, Debra Lafave, Pamela Rogers Turner) in which adult females have been prosecuted for participating in sexual relationships with male minors. Under English and Scottish common law, such cases would be viewed as indecent assault and some have been prosecuted.

In at least one case the U.S. courts have held that male victims of 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.

Same-sex statutory rape

In some jurisdictions, relationships between adults and minors may be 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.

The Kansas law was successfully challenged as being in conflict with the U.S. Supreme Court rulings Lawrence v. Texas and Romer v. Evans. 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.

Specific laws depending on countries

Denmark

The law reads:

§ 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.

Translates roughly to:

§ 222. Whoever 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 his physical or mental superiority.

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

The Netherlands

Artikel 244
Hij die met iemand beneden de leeftijd van twaalf jaren handelingen pleegt die bestaan uit of mede bestaan uit het seksueel binnendringen van het lichaam, wordt gestraft met gevangenisstraf van ten hoogste twaalf jaren of geldboete van de vijfde categorie.

Artikel 245
Hij die met iemand, die de leeftijd van twaalf jaren maar nog niet die van zestien jaren heeft bereikt, buiten echt, ontuchtige handelingen pleegt die bestaan uit of mede bestaan uit het seksueel binnendringen van het lichaam, wordt gestraft met gevangenisstraf van ten hoogste acht jaren of geldboete van de vijfde categorie.

Translates to:

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.

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 as 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 € 78,000.
• "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).

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). 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.

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, there was talk of the prosecution of Aldridge for statutory rape, which could be done under current Louisiana state law. Prosecution in the case was never pursued.

See also

• Pitcairn sexual assault trial of 2004
• Rape by gender
• Types of rape
• Jailbait
• Luis Gabriel Aguilera

External links

• Breakdown of ages of consent in various countries and all 50 U.S. states