In Virginia, it is illegal for an adult (someone 18 or older) to have sex with a minor (someone younger than 18), even if the sex is consensual. Those who break the law have committed statutory rape.
Statutory rape laws are premised on the assumption that minors are incapable of giving informed consent to sexual activities. Their incapacity is written into the statute—hence the term, “statutory” rape. The age of consent can vary among states, and some states differentiate between consensual sex between minors who are close in age (for example, two teenagers of the same age), as opposed to sex between a minor and a much older adult.
Though statutory rape does not require that the prosecutor prove an assault, it is still rape. Of course, rape that does involve force or an assault is illegal in Virginia and prosecuted as forcible rape. Assaults of a sexual nature may also be charged under the state’s assault and battery laws and child enticement and abuse laws.
Statutory rape is prosecuted under Virginia’s rape, carnal knowledge, and juvenile delinquency laws. Penalties depend on the ages of the defendant and victim, and the conduct that occurred, as described below.
Rape includes a sexual intercourse between a minor who is younger than 13 and a defendant of any age. This crime is a felony that incurs at least five years (and up to life) in prison, a fine, or both. (Va. Code § 18.2-61 (2018).)
Carnal knowledge of a child between 13 and 15 years old includes sexual intercourse, oral sex, anal sex, or penetration with an object, between a minor who is 13 or 14 years old and a defendant of any age. The offense is a Class 4 felony when the defendant is 18 or older, which incurs at least two (and up to ten) years in prison, a fine of up to $100,000, or both. This offense is a Class 6 felony when the defendant is younger than 18 and at least three years older than the victim. This incurs at least one (and up to five) years in prison; or between one month and one year in jail, a fine of up to $2,500, or both. And the offense is a Class 4 misdemeanor when the defendant is younger than 18 and less than three years older than the victim. Penalties for a Class 4 misdemeanor include a fine of up to $250. (Va. Code §§ 18.2-10, 18.2-11, 18.2-63 (2018).)
Causing or encouraging juvenile delinquency includes sexual intercourse, oral sex, or anal sex between a minor who is 15, 16, or 17, and a defendant who is at least 18 years old. This offense is a Class 1 misdemeanor, which incurs up to one year in jail, a fine of up to $2,500, or both. (Va. Code §§ 18.2-11, 18.2-371 (2018).)
State law requires, in addition to the applicable fines and prison time, that people convicted of certain sexual crimes (including certain instances of statutory rape) must register as sex offenders. (Va. Code § 9.1-902 (2018).)
Defendants charged with statutory rape have the usual defenses available to all criminal defendants, such as “Someone else committed this crime,” or “The alleged conduct did not occur.” But under Virginia law, some other defenses may apply in statutory rape cases.
Virginia has a marital exemption for statutory rape that allows consensual sex between a married minor age 15 or older and that minor’s spouse, even though their ages would prohibit it if they were not married. (Va. Code § 18.2-371 (2018).)
Minors are legally incapable of giving consent to having sex; so for example, if Jen, a 15-year-old willingly has sex with Tony, her 23-year-old boyfriend, Tony can be charged with rape, since Jen is not legally capable of giving consent in the first place.
But if Jen and Tony are married, Tony need not fear criminal charges for having consensual sex with Jen. This is because Virginia has a marital exemption to the state’s statutory rape laws.
However, if Tony were to rape Jen (force her to have sex against her will), he would have no protection under the law even if the two are married. (For more information about rape between spouses, see Marital Rape Laws.)
Many states have enacted “Romeo and Juliet” exceptions, named for William Shakespeare’s young lovers, to protect young people from criminal charges as a result of consensual sexual activity with other teens. In Virginia, there is a Romeo and Juliet exemption for consensual sex between minors who are fewer than three years apart in age. However, this is a limited exception because it serves to reduce the conduct from a felony to a misdemeanor offense. The conduct is still illegal, but someone protected by this exception will face the possibility of smaller fines and reduced jail time. (Va. Code § 18.2-63 (2018).)
Defendants accused of statutory rape often claim that they had no reason to know that their partner was underage. They may argue that the victim herself represented that she was older than she was, and that a reasonable person would have believed her. But as in most states, in Virginia even a reasonable mistake of age is not a defense to statutory rape.
If you are facing a statutory rape charge, consider consulting with an experienced criminal defense attorney who regularly practices in your area. Laws can change at any time, and a lawyer can evaluate the strength of the prosecution’s case against you and help develop any defenses that might apply to your case.
A lawyer can often negotiate with the prosecutor for a lesser charge or a reduction in penalties (such as, for example, probation instead of prison time), and will know how prosecutors and judges typically handle cases like yours.
If you are a victim of sexual assault or rape, contact Rape, Abuse & Incest National Network (RAINN) for online help and local resources.
Updated August 7, 2018