Statutory rape
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Statutory rape is the crime of sex with a 'minor' under the age of consent (AOC). 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.
The age at which individuals are considered competent to give consent is the age of consent (AOC). 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.
Many 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 12 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 significantly lesser charge (such as, "unlawful sexual conduct with a minor," or, "criminal sexual conduct with a minor,") depending on the jurisdiction, the age difference between the participants, and other factors. Criminal sanctions for violations of the age of consent which are not statutory rape may range from a minor misdemeanor to a high level felony. For example, if there is a 5 year or more (16-21) difference, it would be considered aggravated criminal sexual abuse, a Class 2 Felony. Some jurisdictions have a third age boundary which is an age of consent that is relevant in situations in which the adult is in a position of authority over the minor (e.g., the minor's teacher, doctor, coach, school principal, mental health provider, et cetera). The massive confusion caused by the various but very different sexual crime laws (which often have legal terms which are not interchangeable or parallel from jurisdiction to jurisdiction) usually leads people to assume that any violation of the age of consent is a "statutory rape" crime.
Laws vary widely 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. Due to a wide variety of opinions on what the proper age of consent should be, and conflicts between child sex protection laws and the natural exploration of teenage sexuality, statutory rape charges can sometimes be controversial and contradictory.
Some critics contest the legal characterization of unlawful, non-forced sexual contact as "rape" or "sexual assault." In addition to being seen as an incorrect use of those terms, critics believe the absence of a distinction diminishes the severity of actual (forceful) rape. Furthermore, they argue that charges and punishments should reflect the presence of force, so as not to suggest that actual rape is no worse than, for example, non-forced sexual contact with an adolescent.
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[edit] Rationale of statutory rape laws
The rationale is typically that although a person may be biologically mature enough to desire sexual intercourse, he or she may, lacking the additional years of experience possessed by legal adults, not be able to make mature or rational decisions as to whom he or she engages in sexual contact with and how he or she does so. Thus, 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.
This is perhaps one of the major points of contention in statutory rape controversies; even a young teenager might possess enough social sense to make informed and mature decisions about sex, and, conversely, some people well above any agreed-upon age of consent 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. Any agreed-upon age of consent, therefore, is more or less arbitrary. In general, any law based on a specific age is going to have an element of arbitrariness as it is rooted in generalities about people based on their age groups. Nonetheless, there are many cases, outside of sexual consent, where such legal fictions are enforced, including age of majority and drinking age.
Another rationale comes from the fact that minors are legally, economically and socially unequal to adults. Typically, they are economically dependent, lack full legal rights, and are in fact wards of their legal guardians. All of this impairs their ability to refuse sexual advances without fear of reprisal. This situation is akin to an employee being afraid to turn down his or her boss because he or she doesn't want to get fired. By making it illegal for an adult to have sex with a minor, the minor is given some protection against this.
In addition, 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. They are also 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. For these reasons, minors are less able to avoid the potentially negative consequences of sexual activity, and the situation may be even worse when compounded by the inequality inherent in any relationship with a legal adult. This provides further rationale for protecting minors by not giving them the legal right to 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. The obligation to prove the victim's lack of consent make rape a difficult crime to prove in many circumstances. 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 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 or necessary to defend the virtue or social standing of a girl who was already sexually active, promiscuous, or involved in prostitution.
[edit] Gender differences in statutory rape
[edit] Female-male statutory rape
In the past, sex involving an adult female and an underage male was often ignored by the law, as many believed that this was not a traumatic or negative experience for teenage boys[citation needed]. 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, Tammy Imre, Pamela Rogers Turner, Pamela Smart) where adult females have been prosecuted for participating in sexual relationships with younger males. These cases mentioned have all involved adult female teachers and young teenage male students.
[edit] Same-sex statutory rape
Same-sex relationships between adults and minors are typically prosecuted more strongly, especially when the couple is not of the opposite sex. For example, in Kansas, if someone 18 or younger has sex with a minor no more than four years younger, a "Romeo and Juliet" law limits the penalty substantially. This law, however, had been written so as not to apply to same-sex couples, leading to significantly higher penalties for the same act. The Kansas law was successfully challenged, however, as being in conflict with the U.S. Supreme Court rulings Lawrence v. Texas and Romer v. Evans [1]. The Lawrence v. Texas precedent does not directly address equal protection, but it's application in the case of Limon v. Kansas that it also invalidates age of consent laws that discriminate by sexual orientation. Lawrence v. Texas [2] [3].
[edit] 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 July, 2005, Matthew Koso of Falls City, Nebraska was charged with statutory rape for premarital sex with a 13-year-old whom he subsequently married. The decision to prosecute Koso—which was undertaken by the state's Attorney General, overruling the decision of the local prosecutor—has been controversial, with public opinion tilting in favor of Koso. See an example of a web page in opposition to the state's actions: Bruning's "Shotgun Divorce"
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 defence (e.g., that he had assumed the other party was over the age of consent). 1 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. [4]
[edit] Decriminalization of statutory rape
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[citation needed], some youth rights activists, some libertarians[citation needed], 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.
[edit] See also
[edit] External links
- Moral Outrage a group seeking reform of statutory rape laws.
- An "Age of Consent" Symposium (1896) by Lillian Harmon
