Do Statutory Rape Laws Apply in Same-Sex Situations?

Statutory rape laws usually apply to both opposite- and same-sex sexual relationships involving a person under the age of consent.

Statutory rape laws make it a crime for a person to have sex or sexual contact with a person who is younger than an age set by law (called the age of consent).

Almost all states have enacted gender-neutral language with respect to laws on statutory rape—meaning these laws apply to males and females in same-sex and opposite-sex relationships.

This article discusses statutory rape laws as they pertain to persons involved in same-sex relationships. For more information about statutory rape in general, see Statutory Rape Laws and Charges.

Evolution of Statutory Rape Laws

Early statutory rape laws arose from the concern of protecting the chastity of young girls to ensure their eligibility for marriage. To this end, statutory rape laws historically penalized only males for having sexual relations with younger females.

The focus of statutory rape laws has changed significantly over time. Modern statutory rape laws generally seek to protect young people from victimization by older, more experienced (and possibly predatory) individuals—regardless of the victim or offender’s gender.

As part of this evolution, most states have replaced gender-specific language (“he,” “she,” “male,” “female”) with gender-neutral terms (“person,” “individual”) in statutory rape (and other rape) laws. With these changes, statutory rape laws now protect underage males as well as females. And prosecutors can charge a female with statutory rape of a male, and they can bring statutory rape charges against one or both individuals in a same-sex relationship.

Gender-Neutral or Not?

As states moved to using gender-neutral language in their statutory rape laws, most did so with respect to definitions, punishments, exceptions, and defenses. In other words, states did a complete overhaul and changed all gender-specific terms to gender-neutral terms—that is, except for a few states. In particular, a few states limited certain statutory protections—called “Romeo and Juliet” laws—to only people in opposite-sex relationships.

Romeo and Juliet Laws

Romeo and Juliet laws provide exceptions to, or mitigate (reduce), statutory rape charges in situations where young people close in age consent to a sexual relationship (such as a sexual relationship between consenting teenagers ages 17 and 18). Under Romeo and Juliet laws, these close-in-age relationships either don’t constitute a crime under statutory rape laws or result in reduced charges (such as misdemeanor instead of felony charges).

Protections Limited to Opposite-Sex Relationships

A few states—including Alabama, Kansas, and Texas—had language in their statutes that limited protections of their Romeo and Juliet laws to people in opposite-sex relationships. As a result, individuals in same-sex relationships were penalized more severely in these states. Alabama amended its law and the Kansas law was found unconstitutional, but, as of January 2020, the Texas law remains unchanged.

In Kansas, the state’s supreme court found the limited Romeo and Juliet provision unconstitutional and extended the provision to include same-sex conduct. (State v. Limon, 122 P.3d 22 (Kan. 2005).)

In 2019, the Alabama Legislature struck (deleted) statutory language that limited its Romeo and Juliet protections to relationships involving people of the “opposite sex.” (Ala. Stat. §§ 13A-6-61, -62 (2019); 2019 Ala. Acts 465.)

Texas law continues to limit its Romeo and Juliet defense to consensual sexual conduct between people not more than three years apart in age and of opposite sexes. (Tex. Penal Code § 21.11(b) (2019).)

Challenging Laws as Discriminatory

The Texas law is similar to the law that the Kansas Supreme Court held unconstitutional as discriminatory in State v. Limon, 122 P.3d 22 (Kan. 2005).

Kansas’s statutory rape law reduces potential criminal charges when the person charged is no more than 19 years old and no more than four years older than the underage person. The law restricts this mitigation (reduction) of criminal charges to people in opposite-sex relationships—which meant individuals in same-sex relationships faced more serious penalties for the same conduct. (Kan. Stat. § 21-3522 (2004) (renumbered § 21-5507 (2019)).)

The Kansas Supreme Court found the law as written in 2004 unconstitutional, because it treated homosexual conduct differently from heterosexual conduct. The court struck (deleted) from the law the words “and are members of the opposite sex,” and in that way, extended the Romeo and Juliet protection to same-sex relationships.

Given the fate of the Kansas Romeo and Juliet law, the Texas law could face a similar constitutional challenge. For now, though, it remains in effect.

Contact a Lawyer

The consequences of statutory rape charges or a conviction can affect a person’s life for many years. If you have been charged with statutory rape, or any sex crime, consult with an experienced criminal defense lawyer in your state.

Updated January 27, 2020

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