Statutory rape

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Statutory rape (sometimes called "rape of a child", "corruption of a minor", "carnal knowledge of a minor" and so on) is the crime of sex with a minor under the age of consent (AOC), the age at which individuals are considered competent to give consent to sexual conduct. Statutory rape differs from other types of rape in that overt force or threat need not be present. By law (statute), any such sexual activity is assumed to be coercive since the minor is considered by law to be incapable of giving consent to the acts.

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 13 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, he or she may, lacking the additional years of experience possessed by legal adults, not be able to make mature or rational decisions as to whom he or she engages in sexual contact with and how he or she does so. Thus, even if he or she willingly engages in sexual intercourse with a legal adult, his or her 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 his or her boss because he or she doesn'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, although the protection is retributive rather than preventive.

In addition, minors are less likely than adults to understand sexually transmitted infections, 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.

Another rationale presented in defense of statutory rape laws relates to the difficulty in prosecuting forced rape (against a victim of any age) in the courtroom. The obligation to prove the victim's lack of consent make rape a difficult crime to prove in many circumstances. 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 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.

Gender differences in statutory rape

Female-male statutory rape

In the past, sex involving an adult female and an underage male was often ignored by the law, presumably because it was not perceived 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, Pamela Rogers Turner, Pamela Smart) 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.

Same-sex statutory rape

Relationships between adults and minors are typically prosecuted more strongly when both are the same sex. For example, 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 to not apply to same-sex couples, leading to significantly higher penalties for the same act. 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 v. Texas precedent does not directly address equal protection, but its application in the case of Limon v. Kansas was that it also invalidates age of consent laws that discriminate by sexual orientation (Lawrence v. Texas).

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^{[How to reference and link to summary or text]}, some youth rights activists, some libertarians^{[How to reference and link to summary or text]}, pro-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.

See also

• Age of consent
• Types of rape
• Rape
• Rape statistics

Further reading

• Moral Outrage a group seeking reform of statutory rape laws.
• For a breakdown of ages of consent in various foreign countries and all 50 U.S. states (and some US territories as well as the military, see http://www.avert.org/aofconsent.htm