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The term "statutory rape" is used in some legal jurisdictions to refer to sexual activities in which one person is below the age required to legally consent to the behavior.[1] Although it usually refers to adults engaging in sex with minors under the age of consent,[1] 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", "unlawful carnal knowledge", 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 challenged 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 molestation", is typically treated as a more serious crime.
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In many jurisdictions, the age of consent is interpreted to mean mental or functional age.[3][4] As a result, victims can be of any chronological age if their mental age makes them unable to consent to a sexual act.[3][4][5][6] 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[7] 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.
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.[8] 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.[9]
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.[2]
Another argument 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.[9]
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.[9] 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.[8]
Historically a man could (and in a some jurisdictions still 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).[9]
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 some jurisdictions (such as California), if two minors have sex with each other, they would both be guilty of engaging in unlawful sex with the other person (misdemeanor instead of felony).[10][11] 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.
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:
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:
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.
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.[12] However, in recent years, some countries' social perceptions have shifted, partly because mental health experts have noted that such sexual encounters can often be characterized as abusive, resulting in serious, long-term problems for the boys involved. 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.[13][14]
In at least one case the U.S. courts have held that male victims of rape are liable for child support for any children resulting from the crime. In County of San Luis Obisbo v. Nathaniel J. the victim discussed a future relationship with the perpetrator and stated that the sex was "mutually agreeable." Given this testimony, the California Court of Appeal held Nathaniel J. financially responsible.[15]
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 did not directly address equal protection, but its application in the case of State v. Limon was that it also invalidated age of consent laws that discriminate based on sexual orientation in Kansas (Lawrence v. Texas).[17][18]
Rough traslation:
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).[20] 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.[21]
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,[22] there is talk of the prosecution of Aldridge for statutory rape, which could be done under current Louisiana state law.[23][24]
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.
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