Could an Older Woman Be Charged Statutory Rape?

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).

All states have enacted gender-neutral language with respect to laws on statutory rape—meaning both males and females can be charged with statutory rape. But does gender-neutral necessarily mean equality?

This article discusses statutory rape laws as they apply to statutory rape committed by females. For more information about statutory rape in general, see Statutory Rape Laws and Charges.

Statutory Rape Laws: An Evolution

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, 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.

Does Gender-Neutral Mean Equality?

In criminal cases, the prosecutor makes the decision of whether or not to press charges and who to charge with a crime. While the change to gender-neutral language in statutory rape laws provided new protections to male victims, the laws generally leave it up to the prosecutors on who to charge.

In cases where both parties violate a statutory rape law (for instance, two teenagers under the age of consent), prosecutors can charge either party—male or female. Arguably, it could come down to which victim stands to suffer the most harm (only females can become pregnant) or which teenager's parent calls the police first. This discretion given to prosecutors represents a topic of debate on whether gender-neutral actually means equality in the area of statutory rape laws—a "strict liability" crime that has significant and long-lasting repercussions.

Strict Liability Crime

Statutory rape is considered a "strict liability" crime—one that doesn't require proof that defendant knew the victim's underage status or intended to commit a crime. To prove statutory rape in a strict liability state, the prosecutor only needs to prove the defendant had sex with an underage person. It doesn't matter if the sexual partner consented to sexual intercourse or claimed to be, or looked, the age of consent. Unlike most crimes, the prosecution doesn't need to prove any blameworthiness on the part of the defendant.

Penalties and Sex Offender Registration

Penalties for statutory rape can range from a misdemeanor to serious felony charges that can result in years spent in prison. Many states require a person convicted of felony statutory rape to register as a sex offender.

The severity of statutory rape penalties, in some states, depends on the age of the victim, the difference in age between the individuals, or both. Generally, the most severe penalties apply when a victim is younger than a certain age, such as 12 or 13. (Mistake of age is not typically a defense.) Some states reduce the penalties or provide an exception to charges altogether when both parties are under the age of consent and close in age—called "Romeo and Juliet" laws.

Bottom Line: Talk to a Lawyer

The consequences of statutory rape charges or a conviction can affect a person's life for many years. While certain exceptions or defenses might apply in your state, they can be difficult to establish and require skilled legal counsel. If you have been charged with statutory rape, or any sex crime, consult with an experienced criminal defense lawyer in your state.