Do statutory rape laws apply in same-sex situations?

Question: I’m an 18-year old guy and my boyfriend, Rob, is 16. We’re students in Austin, Texas. One of my friends said I could be thrown in jail for having sex with Rob because he’s under 17. Is this true? I heard that Texas has a “Romeo and Juliet” law—I know we’re more Romeo and Rob, but aren’t we protected by that law?

Answer: Unfortunately, you may be at risk. While Texas does have a Romeo and Juliet law, it does not apply to same-sex relationships.

This article discusses statutory rape laws as they apply to people of the same gender. For more information about statutory rape in general, see Statutory Rape, where you will find links to articles for every state.

Statutory Rape Law

Statutory rape describes criminal laws that punish adults for having sex with young people. Although such laws arose from a dubious concern for the “chastity” of young girls, the focus of modern statutory rape laws is protecting young people from victimization by older, more experienced (and possibly predatory) adults. However, the laws have specific age limits that can lead to criminalization of consensual relationships between young adults. And, every state has its own statutory rape law (often called something else, such as “sexual intercourse with a minor”) and the age limits and other specifics vary from state to state.

In general, most states make it a felony crime to have sex with a person under a particular age of consent. The concept behind the age limits is that young people under a certain age lack the experience, wisdom, and maturity to give true consent to sex. Under Texas law, the age of consent is 17. So, sex with anyone under the age of 17 is considered statutory rape, even if the younger person consented to sex.

Same sex relationships

Generally speaking, every state’s statutory rape law applies to same-sex situations. The exceptions, unfortunately for you, provide for harsher treatment of adults who have sex with younger people of the same gender.

This is often an especially cruel reality for gay youth, who may turn to an older person for sexual initiation and experimentation, out of fear that approaching their peers may lead to humiliation and possibly even physical danger. And, many heterosexual young people experiment with homosexual encounters during adolescence. Curiosity about sex is a hallmark of adolescence, and experimentation is a natural by-product of that curiosity. State laws that treat same-sex encounters more harshly than heterosexual ones are not common but, where they exist, they may exacerbate the hardship experienced by gay youth rather than protect them from harm.

Many states do have so-called “Romeo and Juliet” laws and some states extend those laws to same-sex relationships. But not all do, and Texas is one state that does not.

Romeo and Juliet Laws

A Romeo and Juliet law is one that provides for a statutory rape defense or reduced charge where a person had a consensual encounter with someone just a few years younger. States with such laws either reduce the charge or allow for acquittal where the person charged is either no older than a stated age (such as 18) or no more than a stated number of years older (such as three years) than the younger person. In your situation, if you were a female, you would fall within Texas’s Romeo and Juliet law, under which you could be acquitted of (or not charged with) statutory rape because you are not more than three years older than your boyfriend. (Tex. Penal Code Ann. § 21.11(b)(1).)

But, Texas limits its Romeo and Juliet law to intercourse between people of the opposite sex, so you cannot take advantage of the defense if you are charged with statutory rape. (Tex. Penal Code Ann. § 21.11(b)(1).)

Texas is not alone in this distinction. Alabama’s definition of statutory rape includes both genital intercourse and “sodomy” (anal sex) between an adult and a person younger than 16. (Ala. Code § § 13A-6-60 (1), 13A-6-64 (a)(1).) A person charged with genital intercourse with an underage person of the opposite sex may be acquitted under the state’s Romeo and Juliet defense. (Ala. Code § 13A-6-62(a)(1).) However, Alabama law does not allow a person charged with sodomy with an underage person to use the Romeo and Juliet defense. (Ala. Code § 13A-6-62(a)(1).)

Constitutional Challenges to Different Treatment of Same-Sex Situations

Until 2005, Kansas’s statutory rape law allowed for the charge and sentence to be reduced to a misdemeanor level when the person charged was no more than 19 years old and no more than four years older than the underage person. (Kan. Stat. Ann. 2004 Supp. 21-3522.) But, Kansas law restricted this mitigation to opposite-sex situations. (Kan. Stat. Ann. 2004 Supp. 21-3522.) Statutory rape is a felony in Kansas and carries a possible sentence of over 10 years in prison. The Romeo and Juliet mitigation reduces the charge to a misdemeanor, which carries a one-year sentence. However, the Kansas Supreme Court struck down the opposite-sex restriction in the Romeo and Juliet law as unconstitutional because it excluded same-sex sexual encounters.

Court Struck Down A 17-Year Sentence For Consensual Same-Sex Encounter

One week after his 18th birthday, Matthew Limon engaged in consensual oral sex with a 14- year-old male. The State of Kansas tried Limon on a felony statutory rape charge and, after a jury convicted him, the judge sentenced him to 17 years in prison. The sentence also required that Limon register as a sex offender upon release. If Limon’s sex partner had been female, Limon would have been charged with a misdemeanor, facing a one-year sentence. After Limon’s repeated appeals, which led to an order for reconsideration from the U.S. Supreme Court, the Kansas Supreme Court struck down the discriminatory part of the state’s Romeo and Juliet law. (State v. Limon,122 P.3d 22 (2005).)

The U.S. Supreme Court sent Limon’s case back to the Kansas Supreme Court with the order that it reconsider its prior decision upholding Limon’s conviction in light of Lawrence v. Texas. In that case, the U.S. Supreme Court struck down Texas’s anti-sodomy law. (Lawrence v. Texas, 539 U.S. 583 (2003).)

The fate of Kansas’s discriminatory Romeo and Juliet law suggests that any similar state law would be likewise subject to constitutional challenge at this point.

Sex Offender Registration

Many states require a person convicted of felony statutory rape to register as a sex offender. Sex offender status limits where the person may live, work, go to school, and even just hang out. Sex offender registries are public record and may be accessed by employers, landlords, neighbors, and any other interested member of the public.

For more information about sex offender registration laws, see State Sex Offender Registration.

Statutory Rape Laws on Same-Sex Encounters Remain in Flux

Although the U.S. Supreme Court has indicated that treating sex with an underage person of the same gender as the person charged with statutory rape violates the Constitution, these laws remain on the books in some states. And, even if a Romeo and Juliet law applies to same-sex encounters in your state, it may only reduce the possible sentence for one convicted of statutory rape. Conviction of any sex crime is a serious matter and, in some instances, can result in being ordered to register as a sex offender. If you have questions about statutory rape or any other sex crime, talk to an experienced criminal defense lawyer in your area.

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