Statutory Rape

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“Jail bait” is a derogatory term for an underage boyfriend or girlfriend, but it carries a hint of truth: A person who has sex with a person under a certain age risks doing time, even if the younger person is a willing partner.

This article is a general discussion of statutory rape laws. For more information on statutory rape laws on a state-by-state basis, click the state in the list of states below.

What is Statutory Rape?

Statutory rape generally refers to sex with a person who is under an age specified by statute. At this point, most state laws call it something else (for example, sexual intercourse with a minor).

The crime of statutory rape is controversial from virtually every angle and has been criticized by those charged with it as well as those protected by it. Among its most debated aspects are the fact that the victim’s consent is irrelevant, the offender’s age may be very close to that of the victim (sometimes within months), and the intentions of the alleged “rapist” do not matter. Indeed, the reason the crime is called “statutory rape” is to distinguish it from forced sexual contact against the victim’s will. The “statutory” part is the designation by law of a consensual sexual encounter as rape, which would otherwise be legal but for the age of one of the parties.

Historic view

Since at least the Middle Ages, societies have enacted statutory rape laws to protect young people, based on the idea that a young person or child is unable to give informed consent to sex because they do not have the maturity and judgment to do so. The traditional notion of the danger averted by statutory rape laws is that of the pedophile preying on an innocent and trusting child.

A large part of the controversy surrounding statutory rape arises from its historic application to young females only. It has been called paternalistic by feminists, who argue that it reinforces the debunked double-standard that society should “protect” women from exercising free choice in the expression of their sexuality and to keep them “pure.” It may be hard to believe, but many states once had laws that said a statutory rape defendant would be acquitted if the victim was “unchaste,” or even had a “bad” reputation as sexually promiscuous.

The emphasis on chastity and "protecting" young females from sexual experience also arose from a concern that “defiled” girls were less desirable as spouses. Brides were viewed as property to be offered in return for a dowry, but as damaged goods, their value to their family was diminished.

Statutory rape laws today, however, reflect a gender-neutral, age-based restriction on sex with young people, regardless of the victim’s sexual history.

Modern View

Statutory rape laws vary from state to state but the laws typically make it a crime to have intercourse (sexual contact involving penetration) with a person below a certain age. Modern statutory rape laws share a common framework: Outlawing sex with a person under an “age of consent” that is stated in the law. However, many states have also enacted exceptions to statutory rape under certain circumstances.

“Romeo and Juliet” laws

Many states also include in their statutory rape laws an age range between the parties, such as by outlawing intercourse with a victim under a certain age by a person:

  • of a certain age (such as 18) or older, or
  • a certain number of years older than the victim (such as “at least three years older”).

The reason for the age range specifications, often termed “Romeo and Juliet” provisions, is to treat consensual sexual activity between two parties who are both quite young in a less severe fashion. In some states, the defendant may offer the parties’ relative ages as a complete defense to statutory rape; in others, the relative ages of the two may be a “mitigating” factor that lessens the charge and the associated penalty if convicted.

However, in some states, the relative ages of the parties is not a complete defense but merely lowers the severity of the crime (and the possible penalty) to misdemeanor level.

Sex between young people of the same gender

A few states have “Romeo and Juliet” laws that expressly limit the exception to situations where the two people engaged in sexual activity are of the opposite sex. In Texas and Alabama, a person charged with statutory rape may be acquitted under the states’ Romeo and Juliet exceptions if the defendant is no more than three years older than the victim but only if the two are male and female. If defendant and victim are of the same gender, the Romeo and Juliet exception provides no defense to the statutory rape charge.

And, in California, sodomy (anal intercourse) is treated differently than genital intercourse, and the state’s Romeo and Juliet mitigation does not apply to statutory rape involving sodomy. Under California law, where a defendant who has consensual genital intercourse with a person under age 18 is no more than three years older than the other party, the charge may be lowered to a misdemeanor. But, if the sexual conduct between the parties includes sodomy, the Romeo and Juliet mitigation does not apply. The result is that consensual anal sex between young males who are close in age is treated as statutory rape in California and subjects the defendant to the full penalty.

Defenses to Statutory Rape

There are a few defenses to statutory rape, although the exact defenses available to a person charged with the crime depend upon the laws of the state in which the defendant is charged.

Consent

Although the victim’s consent itself is not necessarily a defense to statutory rape, it may be if the state in which the defendant has a Romeo and Juliet exception or mitigation. The victim’s consent is an essential element that a defendant must show in order to take advantage of the Romeo and Juliet laws.

In states without Romeo and Juliet laws, the victim’s consent to statutory rape is no defense, because the point of statutory rape is that a person under a certain age cannot give a valid consent to sexual activity.

Reasonable mistake of victim’s age

A few states allow a defendant to offer evidence that he or she honestly and reasonably believed the victim to be over the age of consent as a defense to a charge of statutory rape. Most states reject this defense and treat the defendant’s mistake or ignorance about the victim’s age as irrelevant to guilt under statutory rape laws, even where the victim has intentionally misrepresented his or her age.

How Statutory Rape is Punished

In general, a person convicted of statutory rape will be charged with a felony and face a prison sentence of a year or more, as well as a fine, although the particular sentence depends on the state in which the defendant is convicted.

Where a state has a Romeo and Juliet mitigation that lowers the crime to a misdemeanor when the defendant and victim are close in age, the sentence will be less severe (no more than a year in jail maximum).

Sex Offender Registration

A person convicted of statutory rape in certain states will be required to register as a sex offender. Such registration imposes strict limitations on where a sex offender may live, work, or go to school, and also requires the offender to check in with authorities on a regular basis. A registered sex offender’s name is placed on a national database, which is accessible to the public. In many respects, registering as a sex offender is the most onerous of any of the possible punishments, because it labels defendants for the rest of their lives.

State-by-State Statutory Rape Information

Get state-specific information regarding statutory rape.

 

Additional Information

Get more information on statutory rape.

See A Lawyer

A conviction of statutory rape can lead to repercussions that affect the offender’s life for many years. If you have been charged with statutory rape, or any sex crime, you should talk to an experienced criminal defense lawyer in your state.

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