Statutory rape

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The phrase statutory rape is a general term used to describe non-forcible sexual relations that take place when an individual (regardless of age or gender) has sexual relations with an individual not old enough to legally consent to the behavior.^[1] Although it usually refers to adults engaging in sex with minors under the age of consent,^[1] the age at which individuals are considered competent to give consent to sexual conduct, it is a generic term, and very few jurisdictions use the actual term "statutory rape" in the language of statutes.^[2] Different jurisdictions use many different statutory terms for the crime, such as "sexual assault," "rape of a child," "corruption of a minor," "carnal knowledge of a minor," or simply "carnal knowledge." Statutory rape differs from forcible rape in that overt force or threat need not be present. The laws presume coercion, because a minor or mentally retarded adult is legally incapable of giving consent to the act.

Statutory Rape Is Illegal Sexual Activity Between Two People When It Would Otherwise Be Legal If Not For Their Age: In accordance with the FBI definition, statutory rape is characterized as non-forcible sexual intercourse with a person who is younger than the statutory age of consent.^[3]

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 molestation," is uniformly treated as a more serious crime.

Contents 1 Age of consent 2 Rationale of statutory rape laws 3 Gender differences in statutory rape 3.1 Female-male statutory rape 3.2 Same-sex statutory rape 4 Romeo and Juliet laws 5 Current issues 6 Age of consent reform 7 See also 8 References 9 Further reading

[edit] Age of consent

Main article: Age of consent

Age of consent is the age at which an individual can legally consent to intercourse without qualification. There are qualified circumstances in which sexual relations with a person under the age of consent are not a crime (or constitutes a less serious crime). The most common such qualifications are that both parties to the act are minors, or that the person to be charged is legally married to the minor or close in age to the minor.

In many jurisdictions, age of consent is interpreted to mean mental or functional age.^[4][5][6]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][10]} Other jurisdictions, such as Connecticut, eliminate the legal concept of "mental age" and treat sex with a mentally incapacitated person as a specific crime.

The parameters of sexual crimes against persons under the age of consent are sufficiently diverse to make generalizations difficult. A complete and detailed list of such laws in North America is contained in Ages of consent in North America.

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 maximum difference in age, where 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" laws (see below).

Virtually all jurisdictions recognize that sex between married individuals is not a crime, and thus any state that recognizes and/or allows a marriage involving a person below the age of consent necessarily makes an exception for same. However, recognition of a marriage is subject to the laws of the jurisdiction, and in the U.S. a marriage is not necessarily guaranteed to be recognized under the Full Faith and Credit Clause of the U.S. Constitution, as marriageable ages and the ages at which marriage is permitted with parental and/or judicial consent vary from state-to-state. Generally, minors are allowed to marry below the age of consent if consent is given in their place by a parent or legal guardian. Usually in these cases the consent of the guardian is viewed as substituted for that of the minor (whose own consent would not be recognized) which summarily disproves any allegation of statutory rape.

[edit] Rationale of statutory rape laws

Statutory rape laws are based on the concept that a young person may desire sexual intercourse but may lack the experience possessed by legal adults to make a mature decision as to whether or not to have sexual contact with a particular person. Thus, the law assumes, 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.^[12]

Critics argue that 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 legally, economically and socially 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.^[2]

Statutory rape laws are also based on the ideas that 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.^{[citation needed]} Statutory rape laws also assume that minors are, in the event of an unintended pregnancy, 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.^{[citation needed]}

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. 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.^[13]

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.^[13] 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.^[12] In some cultures, a boy who got a girl pregnant might avoid marriage by paying her parents a bride price.^{[citation needed]}

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, necessary, or possible to defend the virtue or social standing of a girl who was already sexually active, promiscuous, or involved in prostitution. One sign of this is the fact that in some states a man can 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]

[edit] Gender differences in statutory rape

[edit] Female-male statutory rape

In the past, sex involving an adult female and an underage male was often ignored by the law. 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) in which adult females have been prosecuted for participating in sexual relationships with younger males. Under English and Welsh law such cases would be viewed as indecent assault and some cases have been prosecuted.^[14][15]

[edit] Same-sex statutory rape

In some jurisdictions, relationships between adults and minors may be prosecuted more strongly 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 does not apply to same-sex couples, leading to higher penalties. The Kansas law was successfully challenged, as being in conflict with the U.S. Supreme Court rulings Lawrence v. Texas and Romer v. Evans.^[16] 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).^[17][18]

[edit] Romeo and Juliet laws

Often, teenage couples engage in "consensual" 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 such cases, the older of the two participants is technically guilty of statutory rape. 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 minor. The accused in these cases normally has no defense.

This has 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:

• 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 actor and 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, and/or community service
• Eliminating the requirement that the convicted participant register as a sex offender, or reducing the duration of such registry from life to 1, 5 or 10 years.
• Allowing the judge to impose probation instead of a jail sentence. The convicted party can sometimes file for expungement after the probationary period.

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 actor was less than 3 years older than the victim at the time of the offense,
• the victim was older than 14 years of age at the time of the offense,
• the actor was not at the time registered or required to register for life as a sex offender,
• the conduct did not constitute incest, and
• neither actor nor 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", or for "aggravated sexual assault" which is the forcible rape statute of Texas law.

[edit] 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 May 2006, the Irish Supreme Court found the existing statutory rape laws to have been unconstitutional as they prevented the defendant from entering a defense (e.g., that he had assumed the other party was over the age of consent).^[19] 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 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.^[20]

In the aftermath of the December 2007 disclosure by 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,^[21] there is talk of the prosecution of Aldridge for statutory rape, which could be done under current Louisiana state law.^[22][23]

In 2008, all of the children of a community of the Fundamentalist Latter Day Saints were removed because it was believed that they were all at risk of child abuse because they were being groomed, boys and girls, to accept marriage at a very young age. Although it appeared that the community was in violation of prohibitions against polygamy, it was the issue of child abuse which resulted in the dramatic raid and moving the minors to foster care. The Supreme Court of Texas has since ruled that the State of Texas improperly removed the children.

[edit] Age of consent reform

Main article: Age of consent reform

Efforts to reform age of consent laws have been pursued by different organizations through a variety of means, including:

• Legislation for close-in-age exemptions to age of consent laws.
• Advocacy to change the way age of consent laws are examined in court.^{[citation needed]}
• Advocacy to raise ages of consent, or increase penalties for violation of these laws, or both.
• Advocacy to lower ages of consent, or decrease penalties for violation of these laws, or both.
• Advocacy to abolish age of consent laws.^{[citation needed]} Some abolitionists^[who?] advocate lowering of ages as a temporary practical expedient.

[edit] See also

• Age of consent
• Types of rape
• Rape
• Rape by sex
• Pitcairn sexual assault trial of 2004
• Pferdekamper's Paradox

[edit] References

[edit] Further reading

• 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

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