Statutory rape

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The term statutory rape is used when the law presumes a minor to be a victim of rape regardless of their sexual consent. Sometimes, the law does not describe illegal under-age sex as rape, but nevertheless - this term has been adopted by moderate liberals to describe cases where parties involved were close in age yet one (being above the age of consent) was persecuted by the law. This use of the term is somewhat subjective, as sexual contact between far more age-disparate parties (which is seen by many people as actual rape) may also be "statutory rape". Very few jurisdictions use the actual term "statutory rape" in the language of statutes (State Legislators’ Handbook for Statutory Rape Issues).[1] 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 knowledge." 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 retarded adult is legally incapable of giving consent to the act.
"Statutory Rape Is Illegal Sexual Activity Between Two People When It Would Otherwise Be Legal If Not For Their Age: In accordance with the FBI definition, statutory rape is characterized as non-forcible sexual intercourse with a person who is younger than the statutory age of consent. Dating without sexual contact can in no way be considered a form of statutory rape".[2]

In this sense, the term statutory rape generally refers to sex between an adult and a sexually mature minor past the age of puberty. Sexual relations with a prepubescent child, generically called "child molestation," is typically treated as a more serious crime.

Origin and History

The crime of statutory rape was introduced into English law as a felony by the Statutes of Westminster [3 Edw, c.13, 1275] and later made a capital offence [13 Edw, c.34, 1285]. It was defined as

  • a man (or boy)
  • having (vaginal) intercourse with
  • a girl
  • less than 12 years of age
  • not his wife.

It carried over to United States law and together with sodomy it constitutes the core of the sexual offences in the Anglo-Saxon tradition. Most clauses of the definition have, however, undergone important changes in recent years. Only the marital exception ("not his wife") remains yet unchanged.

Age limit

The age limit (commonly called age of consent) remained at ten or twelve years until the 1880s (Cocca, p. 23f., has a table). Following its raising in England by the the Criminal Law Amendment Act [48 & 49 Vict., c.69, 1885], a coalition of progressives, feminists, and religious conservatives was formed and successfully lobbied for a higher limit. It is remarkable that this coalition would remain essentially stable for more than a century, in spite of fundamental differences.

The offence now was more akin to seduction and from it the defence of promiscuity entered the law of statutory rape, its protection was now restricted to (evidently) white girls of ‘previously chaste character’. Another change that came about was the introduction of "age-span" provisions, first in New York, then, much later in many, but not all, other states. These provisions sought to decriminalise same-age sexual behaviour, albeit half-heartedly as often minor offences remained in effect that covered exactly these cases.

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. 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) in which adult females have been prosecuted for participating in sexual relationships with younger males. Under English and Scottish common law, such cases would be viewed as indecent assault and some cases have been prosecuted.[3][4]

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.[5] 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).[6][7]

Broadening the definition

Part of the "rape reform" under way in the 1970s was to include other kinds of sexual activity besides vaginal intercourse in the definition in order to protect very young children. Some self-describing feminists also encouraged use of gender-neutral language, which is now employed in every U.S. state. Taken together these changes make statutory rape a very broad offence.

Criticism

It should be said that "statutory rape" type laws are very controversial and some consider them being unconstitutional. They point out that although the presumption of innocence is used in practically all other criminal cases, including murder of children, it is not used with respect to statutory rape, for which offences are measured only on the basis of age of the victim. That is, in murder cases the accused has the opportunity to provide evidence that he didn't kill the victim, but in statutory rape cases violence is assumed per se, through a conclusive presumption, solely on the basis of the age of the victim and regardless of any evidence to the contrary.

Therefore, even though all defendants in statutory rape cases have the right to an attorney, to speak in court, to a fair defense, to present mitigating circumstances, to a fair trial and the right to appeal, all these rights only serve as a way to determine the degree of the penalty to be applied, and the accused is already considered guilty before the trial begins, even when consent is proven beyond any reasonable doubt and when parental consent is documented.

For example, 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). 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.

See also

References

  • Carolyn E. Cocca: Jailbait : The Politics of Statutory Rape Laws in the United States. — Albany, NY: State University of New York Press, 2004. — xiii, 228 pp., 23 cm
  1. http://www.ojp.usdoj.gov/ovc/publications/infores/statutoryrape/handbook/statrape.pdf
  2. What Is Statutory Rape Sexlaws_org
  3. Jail term for underage sex woman
  4. BBC NEWS | England | Staffordshire | Teacher jailed for seducing boy
  5. 85898 - State v. Limon - Luckert - Kansas Supreme Court
  6. FindLaw's Writ - Grossman: The Kansas Supreme Court Rights a Wrong, Ruling that the State Cannot Penalize a Teenager for Being Gay
  7. A table of worldwide ages of consent, including US states