The phrase
statutory rape is a term used in some legal jurisdictions to describe sexual activities where one participant is below the age required to legally consent to the behavior. Although it usually refers to adults engaging in sex with
minorsIn law, a minor is a person under a certain age — the age of majority — which legally demarcates childhood from adulthood; the age depends upon jurisdiction and application, but is typically 18...
under the
age of consentWhile the phrase age of consent typically does not appear in legal statutes, when used in relation to sexual activity, the age of consent is the minimum age at which a person is considered to be legally competent to consent to sexual acts. The European Union calls it the legal age for sexual...
, it is a generic term, and very few jurisdictions use the actual term "statutory rape" in the language of statutes. Different jurisdictions use many different statutory terms for the crime, such as "sexual assault," "rape of a child," "corruption of a minor," "carnal knowledge of a minor," "unlawful carnal knowledge", or simply "
carnal knowledgeCarnal knowledge is an archaic or legal euphemism for sexual intercourse. The term derives from the Biblical usage of the verb know/knew, as in the King James and other versions, a euphemism for sexual conduct...
." Statutory rape differs from forcible rape in that overt force or threat need not be present. The laws presume coercion, because a minor or
mentally challengedMental retardation is a generalized disorder appearing before adulthood, characterized by significantly impaired cognitive functioning and deficits in two or more adaptive behaviors...
adult is legally incapable of giving consent to the act.
The term
statutory rape generally refers to sex between an adult and a sexually mature minor past the age of
pubertyPuberty is the process of physical changes by which a child's body matures into an adult body capable of reproduction, as initiated by hormonal signals from the brain to the gonads; the ovaries in a girl, the testes in a boy...
. Sexual relations with a prepubescent child, generically called "
child molestation," is typically treated as a more serious crime.
Age of consent
In many jurisdictions, age of consent is interpreted to mean mental or functional age. As a result, victims can be of any chronological age if their mental age makes them unable to consent to a sexual act. Other jurisdictions, such as Kentucky, eliminate the legal concept of "mental age" and treat
sextingSexting is the act of sending sexually explicit messages or photographs, primarily between mobile phones. The term was first popularized in early 21st century, and is a portmanteau of sex and texting, where the latter is meant in the wide sense of sending a text possibly with...
with a mentally incapacitated person as a specific crime.
Laws vary in their definitions of statutory rape. It is generally intended to punish heinous cases of an adult taking sexual advantage of a minor. Thus, many jurisdictions prohibit allowing a juvenile to be tried as an adult under this law (most jurisdictions have separate provisions for child molestation or forcible rape which can be applied to juveniles and for which a minor can be tried as an adult). Some jurisdictions also specify a minimum difference in age in order for the offense to be applicable. Under such terms, if the adult is, for instance, less than three years older than the minor, no crime has been committed or the penalty is far less severe. These are called "Romeo and Juliet" clauses.
Rationale of statutory rape laws
Statutory rape laws are based on the premise that until a person reaches a certain age, that individual is legally incapable of consenting to sexual intercourse. Thus, the law assumes, even if he or she willingly engages in sexual intercourse, the sex is not consensual.
Critics argue that an age limit cannot be used to determine the ability to consent to sex, since a young teenager might possess enough social sense to make informed and mature decisions about sex, while some adults might never develop the ability to make mature choices about sex, as even many mentally healthy individuals remain naive and easily manipulated throughout their lives.
Another rationale comes from the fact that minors are generally economically, socially, and legally unequal to adults. By making it illegal for an adult to have sex with a minor, statutory rape laws aim to give the minor some protection against adults in a position of power over the youth.
Another argument presented in defense of statutory rape laws relates to the difficulty in prosecuting forced rape (against a victim of any age) in the courtroom. Because forced sexual intercourse with a minor is considered to be a particularly heinous form of rape, these laws relieve the prosecution of the burden to prove lack of consent. This makes conviction more frequent in cases involving minors.
The original purpose of statutory rape laws was to protect young, unwed females from males who might impregnate them and not take responsibility by providing support for the child. In the past, the solution to such problems was often a "shotgun wedding", a forced marriage called for by the parents of the girl in question. This rationale aims to preserve the marriageability of the girl and to prevent unwanted
teenage pregnancyTeenage pregnancy is a pregnancy of a female under the age of 20 when the pregnancy ends. It generally refers to a female who is unmarried and usually refers to an unplanned pregnancy...
.
Historically a man could (and in a some jurisdictions still can) defend himself against statutory rape charges by proving that his victim was already sexually experienced prior to their encounter (and thus not subject to being corrupted by the defendant).
Romeo and Juliet laws
Often, teenage couples engage in sexual conduct as part of an intimate relationship. This may start to occur before either participant has reached the age of consent, or after one has but the other has not. In some jurisdictions (such as California), if two minors have sex with each other, they would
both be guilty of engaging in unlawful sex with the other person (misdemeanor instead of felony). Most jurisdictions, as previously stated, consider the act itself to be
prima faciePrima facie is a Latin expression meaning on its first encounter, first blush, or at first sight. The literal translation would be "at first face", from the feminine form of primus and facies , both in the ablative case. It is used in modern legal English to signify that on first examination, a...
evidence of guilt, as any consent between partners, even if freely given, does not meet the standard of law as it is given by a person the law has defined as being incapable of giving consent.
These aspects have often been considered unjust, leading to the passage of so-called
Romeo and JulietRomeo and Juliet is a tragedy written early in the career of playwright William Shakespeare about two young star-crossed lovers whose deaths ultimately unite their feuding families. It was among Shakespeare's most popular archetypal stories of young, teenage lovers.Romeo and Juliet belongs to a...
laws, which serve to reduce or eliminate the penalty of the crime in cases where the couple's age difference is minor and the sexual contact is only considered rape because of the lack of legally recognized consent. Such laws vary, but can include:
- Rephrasing the definition of the offense itself to completely exclude situations where the difference in age is smaller than a specified amount of time.
- Providing an affirmative defense
A defendant offers an affirmative defense when responding to a plaintiff's claim in common law jurisdictions, or, more familiarly, in criminal law. Essentially, the defendant affirms that the condition is occurring or has occurred but offers a defense that bars, or prevents, the plaintiff's claim. ...
to statutory rape based on the small difference in the participants' ages, or on evidence of a pre-existing sexual relationship between the accused and the perceived victim that did not constitute statutory rape.
- Reducing the severity of the offense from a felony
A felony is a serious crime in the common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors...
to a misdemeanorA misdemeanor is a "lesser" criminal act in many common law legal systems. Misdemeanors are generally punished much less severely than felonies, but theoretically more so than administrative infractions and regulatory offences...
, which prevents loss of civil rights and reduces available penalties.
- Reducing the penalty in such cases to a fine, probation
Probation literally means testing of behaviour or abilities. In a legal sense, an offender on probation is ordered to follow certain conditions set forth by the court, often under the supervision of a probation officer...
, and/or community service
- Eliminating the requirement that the convicted participant register as a sex offender
A sex offender is a person who has committed a sex crime. What constitutes a sex crime differs by culture and by legal jurisdiction. Most jurisdictions compile their laws into sections such as traffic, assault, sexual, etc. The majority of convicted sex offenders have convictions for crimes of a...
, or reducing the duration of such registry from life to one, five or ten years.
- Allowing the judge to impose probation
Probation literally means testing of behaviour or abilities. In a legal sense, an offender on probation is ordered to follow certain conditions set forth by the court, often under the supervision of a probation officer...
instead of a jail sentence. The convicted party can sometimes file for expungementIn the common law legal system, an expungement proceeding is a type of lawsuit in which a first time offender of a prior criminal conviction seeks that the records of that earlier process be sealed, thereby making the records unavailable through the state or Federal repositories. If successful, the...
after the probationary period.
Such laws generally apply to a couple whose ages differ by less than a specified number of years. They are, however, generally unavailable in any case where the older participant has an authoritative position over the younger regardless of relative age, such as a teacher/student, coach/player or guardian/ward relationship, or if any physical force was used or serious physical injury resulted. This is normally accomplished by making acts involving these circumstances separate crimes to which the "Romeo and Juliet" defense does not apply.
An example is
TexasTexas is the second largest U.S. state by both area and population, and the largest state by area in the contiguous United States.The name, based on the Caddo word "Tejas" meaning "friends" or "allies", was applied by the Spanish to the Caddo themselves and to the region of their settlement in...
Penal Code, Section 22.011(e). It provides an
affirmative defenseA defendant offers an affirmative defense when responding to a plaintiff's claim in common law jurisdictions, or, more familiarly, in criminal law. Essentially, the defendant affirms that the condition is occurring or has occurred but offers a defense that bars, or prevents, the plaintiff's claim. ...
to a charge of
sexual assaultSexual assault is an assault of a sexual nature on another person, or any sexual act committed without consent. Although sexual assaults most frequently are by a man on a woman, it may involve any combination of two or more men, women and children....
if all of the following apply:
- the accused was not more than 3 years older than the perceived victim
- the perceived victim was older than 14 years of age at the time of the offense
- the accused was not at the time registered or required to register for life as a sex offender
A sex offender is a person who has committed a sex crime. What constitutes a sex crime differs by culture and by legal jurisdiction. Most jurisdictions compile their laws into sections such as traffic, assault, sexual, etc. The majority of convicted sex offenders have convictions for crimes of a...
- the conduct did not constitute incest
Incest is sexual intercourse between close relatives that is usually illegal in the jurisdiction where it takes place and/or is conventionally considered a taboo. The term may apply to sexual activities between: individuals of close "blood relationship"; members of the same household; step...
- neither the accused nor perceived victim would commit bigamy
In cultures that practice marital monogamy, bigamy is the act of entering into a marriage with one person while still legally married to another. Bigamy is a crime in most western countries, and when it occurs in this context often neither the first nor second spouse is aware of the other...
by marrying the other (in other words, neither was married to a third person)
A similar affirmative defense exists in the Texas Penal Code for the related crime of "continuous sexual abuse of a young child or children". Any defense under either law, however, does not apply to the separate crime of "improper educator/student relationship", or for "aggravated sexual assault" which is the forcible rape statute of Texas law.
Female and male statutory rape
In the past, sex involving an adult female and an underage male was often ignored by the law, and was often interpreted as a sexual initiation for the younger male. However, in recent years in some countries social perceptions have shifted, in part because mental health experts have noted that such sexual encounters can often be characterized as abusive, resulting in serious, long-term problems for the boys involved. Additionally, controversial were cases when the adult female is in a position of responsibility over the boy, and there have now been a number of high profile cases (
Mary Kay LetourneauMary Kay Fualaau , formerly known as Mary Kay Letourneau, is an American schoolteacher who was imprisoned from 1997 to 2004 for having sexual intercourse with her 13-year-old student, Vili Fualaau. She gave birth to two of Fualaau's children while incarcerated...
,
Debra LafaveDebra Jean Beasley, better known under her former married name of Debra Lafave, is a former teacher at Angelo L. Greco Middle School in Temple Terrace, Florida. She pleaded guilty in 2005 to...
,
Pamela Rogers TurnerPamela Joan Rogers , a former elementary school physical education teacher and coach in McMinnville, Tennessee, had a sexual relationship with a 13-year-old boy who was one of her students in Centertown Elementary School....
), in which adult females have been prosecuted for participating in sexual relationships with male minors. Under English and Scottish common law, such cases would be viewed as indecent assault and some cases have been prosecuted.
In at least one case the U.S. courts have held that male victims of rape are liable for child support for any children resulting from the crime. In
County of San Luis Obisbo v. Nathaniel J. the victim discussed a future relationship with the perpetrator and stated that the sex was "mutually agreeable." Given this testimony, the California Court of Appeal held Nathaniel J. financially responsible.
Same-sex statutory rape
In some jurisdictions, relationships between adults and minors may be prosecuted more strongly when both are the same sex. For example, in
KansasKansas is a US state located in the Midwestern United States. It is named after the Kansas River which flows through it, which in turn was named after the Kansa Native American tribe, which inhabited the area. The tribe's name is often said to mean "people of the wind" or "people of the south...
, if someone 18 or older has sex with a minor no more than four years younger, a Romeo and Juliet law limits the penalty substantially. As written, however, this law does not apply to same-sex couples, leading to higher penalties. The Kansas law was successfully challenged, as being in conflict with the U.S. Supreme Court rulings
Lawrence v. TexasLawrence v. Texas, 539 U.S. 558 , is a landmark United States Supreme Court case. In the 6-3 ruling, the Court struck down the sodomy law in Texas and, by proxy, invalidated sodomy laws in the thirteen other states where they remained in existence, thereby making same-sex sexual activity legal in...
and
Romer v. EvansRomer v. Evans, 517 U.S. 620 , is a landmark United States Supreme Court case dealing with civil rights and state laws. It was the first Supreme Court case to deal with LGBT rights since Bowers v...
. The
Lawrence v. TexasLawrence v. Texas, 539 U.S. 558 , is a landmark United States Supreme Court case. In the 6-3 ruling, the Court struck down the sodomy law in Texas and, by proxy, invalidated sodomy laws in the thirteen other states where they remained in existence, thereby making same-sex sexual activity legal in...
precedent did not directly address equal protection, but its application in the case of State v. Limon was that it also invalidated
age of consentWhile the phrase age of consent typically does not appear in legal statutes, when used in relation to sexual activity, the age of consent is the minimum age at which a person is considered to be legally competent to consent to sexual acts. The European Union calls it the legal age for sexual...
laws that discriminate based on sexual orientation in Kansas (
Lawrence v. TexasLawrence v. Texas, 539 U.S. 558 , is a landmark United States Supreme Court case. In the 6-3 ruling, the Court struck down the sodomy law in Texas and, by proxy, invalidated sodomy laws in the thirteen other states where they remained in existence, thereby making same-sex sexual activity legal in...
).
Current issues
While there is broad support for the concept of statutory rape as criminal in the United States, there is substantial debate on how vigorously such cases should be pursued and under what circumstances.
In May 2006, the Irish Supreme Court found the existing statutory rape laws to have been unconstitutional since they prevented the defendant from entering a defense (e.g., that he had reasonably believed that the other party was over the age of consent). This has led to the release of persons held under the statutory rape law and has led to public demands that the law be changed by emergency legislation being enacted. On June 2, 2006 the Irish Supreme Court upheld an appeal by the state against the release of one such person, "Mr. A". Mr. A was rearrested shortly afterwards to continue serving his sentence.
In the aftermath of the December 2007 disclosure by then-16-year-old actress
Jamie Lynn SpearsJamie Lynn Marie Spears is an American actress and singer. The younger sister of pop star Britney Spears, she rose to prominence for her appearances on Nickelodeon shows All That and for playing Zoey Brooks on Zoey 101....
, the sister of pop star
Britney SpearsBritney Jean Spears is an American recording artist and entertainer. Born in McComb, Mississippi, and raised in Kentwood, Louisiana, Spears began performing as a child, landing acting roles in stage productions and television shows. She signed with Jive Records in 1997 and released her debut album...
, that the father of her baby is 18-year-old Casey Aldridge, there is talk of the prosecution of Aldridge for statutory rape, which could be done under current Louisiana state law.
In 2008, all of the children of a community of the Fundamentalist Latter Day Saints were removed because it was believed that they were all at risk of child abuse because they were being groomed, boys and girls, to accept marriage at a very young age. Although it appeared that the community was in violation of prohibitions against
polygamyPolygamy is a marriage which includes more than two partners...
, it was the issue of child abuse which resulted in the dramatic raid and moving the minors to foster care. The Supreme Court of Texas has since ruled that the State of Texas improperly removed the children.
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