Statutory rape (sometimes called "rape of a child", "corruption of a minor", "carnal knowledge of a minor" and so on) is the crime of sex with a minor under the age of consent (AOC), the age at which individuals are considered competent to give consent to sexual conduct. Statutory rape differs from other types of rape in that overt force or threat need not be present. By law (statute), any such sexual activity is assumed to be coercive since the minor is considered by law to be incapable of giving consent to the acts.

Age of consent

Age of consent is usually the age at which an individual can legally have intercourse with an adult, but in some jurisdictions the AOC establishes the minimum age of sexual conduct with anyone, regardless of age. In jurisdictions with the latter, it would be possible to charge two minors with a violation of the state's AOC.

In many jurisdictions, age of consent is interpreted to mean mental or functional age.[1][2][3][4][5] As a result, victims can be of any chronological age if their mental age is below the age of consent.[6][7][8][9][10]

Some jurisdictions have multiple age determiners for AOC, as well as a second "statutory rape age boundary". For instance, an adult engaging in sexual intercourse in a particular jurisdiction with an individual under the age of 13 may be charged with a full statutory rape charge (a charge fully equivalent in punishment and severity to rape) whereas intercourse with an individual between the ages of 13–16 may be a lesser charge (such as "unlawful sexual conduct with a minor" or "criminal sexual conduct with a minor"). The complexity of the various laws may lead people to assume that any violation of the age of consent is "statutory rape". In some cases, it is some other crime.

Laws vary[11] in their definitions of statutory rape; some states make exceptions when the older person is also young or of a similar age, or if he or she marries the minor before the act of sexual intercourse or before being charged with the offense.

Some critics contest the legal characterization of unlawful, non-forced sexual contact as "rape" or "sexual assault."

Rationale of statutory rape laws

Statutory rape laws are based on the concept that a young person may desire sexual intercourse but may lack the experience possessed by legal adults to make a mature decision as to whether or not to have sexual contact with a particular person. Thus, the law assumes, even if he or she willingly engages in sexual intercourse with a legal adult, his or her sex partner may well have used tactics of manipulation or deceit against which the younger person has not yet developed sufficient discernment or defense.

Some argue that 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 legally, economically and socially 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.

Statutory rape laws are also based on the ideas that minors are less likely than adults to understand sexually transmitted infections, or to have knowledge of and access to reliable methods of contraception, and young women who want to use condoms may find their prospective partner unwilling. Statutory rape laws also assume that minors are less likely to be in a position where they are capable of raising a child and may not have the option of an abortion without parental consent.

Another rationale 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 take their virginity, impregnate them, and not take responsibility by marrying them. In the past, the solution to such problems was often a forced marriage or "shotgun wedding" called for by the parents of the girl in question. The original rationale was to preserve the marriageability of the girl and to prevent unwanted teen pregnancy. In some cultures, a boy who got a girl pregnant might escape marriage by paying her parents a bride price.

In such cases the alleged victim was required to be "of virtue" by the standards of the community, making the background of the alleged victim an issue. It was not considered appropriate, necessary, or possible to defend the virtue or social standing of a girl who was already sexually active, promiscuous, or involved in prostitution.

Gender differences in statutory rape

Female-male statutory rape

In the past, sex involving an adult female and an underage male was often ignored by the law, presumably because it was not perceived a traumatic or negative experience for teenage boys. However, in recent years, social perceptions have shifted, particularly when the adult female is in a position of responsibility, and there have now been a number of high profile cases (Mary Kay Letourneau, Debra Lafave, Pamela Rogers Turner, Pamela Smart) where adult females have been prosecuted for participating in sexual relationships with younger males. Under English and Welsh law such cases would be viewed as indecent assault and some cases have been prosecuted.^[1][2]

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 Kansas, 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. Texas and Romer v. Evans.^[3] The Lawrence v. Texas precedent does not directly address equal protection, but its application in the case of Limon v. Kansas was that it also invalidates age of consent laws that discriminate by sexual orientation (Lawrence v. Texas).^[4][5]

Current issues

While there is broad support for statutory rape laws 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 as it prevented the defendant from entering a defense (e.g., that he had assumed the other party was over the age of consent).^[6] 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 the 2nd of June 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.^[7]

Currently (since May 2007), there is a case widely covered by the media about a 17-year-old German boy who is accused of having had a sexual relationship (but no intercourse) with a 13-year-old British girl while on holiday in Turkey. The case is complicated by the fact that the girl pretended to be 15 years old. Due to the very strict laws in Turkey, the boy is likely to face eight years of imprisonment.

Decriminalization of statutory rape

Main article: Abolition of age of consent laws

The decriminalization of statutory rape, as well as of other laws regarding the age of consent, is defended by some groups and individuals, among which due process of law advocates, some youth rights activists, some libertarians, pro-pedophile activists, and a group of French intellectuals discussing a reform of the French Penal Code in 1977, including philosophers Michel Foucault and Jacques Derrida.

References

See also

• Age of consent
• Types of rape
• Rape
• Pitcairn sexual assault trial of 2004

Further reading

• Moral Outrage a group seeking reform of statutory rape laws.
• For a breakdown of ages of consent in various foreign countries and all 50 U.S. states (and some US territories as well as the military, see http://www.avert.org/aofconsent.htm