Statutory rape is a complicated legal subject, and carries within it different and, at times, contradicting definitions with associated legal loopholes. Moreover, the problem of statutory rape in a legal sense is further compounded by the difficulty in the ways in which different state governments within the United States choose to enforce and define this crime. The following sample essay, one of the custom writing services offered by Ultius, explores the details of this delicate and controversial legal issue.
Statutory Rape Laws
Laws against rape and sexual assault are geared towards mainly protecting women from the men who are unable to control their sex drive and are incapable of making safe choices regarding sex. This unrealistic image of sexuality, especially among teenagers, is conveyed strongly in the statutory rape laws that are set in this country. Statutory rape laws are designed to protect those deemed underage from being abused by those older who are in a position to take advantage of them. Statutory rape can be defined as a person engaging in sexual activities with someone who is under the legal age to consent to those activities.
“That is, if the victim in under that certain age and not married to the perpetrator, he or she is presumed incapable of giving informed and valid consent to sexual activity, therefore, consent is not permitted as a defense to the crime” (Cocca, p. 9).
The legal age of consent varies from state to state. The legal consequences also vary from state to state. Persons found guilty of the crime can be charged from anywhere to 1 year in prison to life in prison depending on the state they committed the crime in. The legal ramifications can also involve registering as a sex offender which can stigmatize an individual for the rest of their life even if they manage to remove the crime from their records. Other consequences can include psychological consequences such as negative views regarding their sexuality. These ramifications are severe and the law cannot be taken lightly. Although these laws are geared toward protecting minors the laws are highly gendered. This is demonstrated by the genders which are mostly seen as victims and the genders which are seen as perpetrators. Feminists and critics of statutory rape laws claim that these laws can be:
- Patronizing to girls, who are seen as victims
- Discriminatory towards boys, who are seen as perpetrators
The statutory rape laws cannot be effective if they are gendered in the manner in which they are patronizing to young teenage girls and discriminatory at times to equally young teenage boys.
Consent is the key
Statutory rape laws assume that a person is not capable of rationally consenting to sex. Even if a person consents, the law presumes that they do not have the capacity to consent. Statutory rape is differentiated from child molestation as there is not perceived coercion or force. Marriage is excluded from the law as an older individual is able to marry someone who is underage as long as they obtain consent from their parents. Andre-Clark discussion of California’s statutory rape laws demonstrates the distinctions made for marriage in the law as statutory rape is described as an
“act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female in under the age of 18 years” (p. 1933).
Statutory rape laws can also serve to protect those who are mentally incapacitated and may be at a developmental age lower than their actual age however this can be difficult to prove. While statutory rape laws are currently in place to protect minors the law did not originate for solely that purpose and the definition of statutory rape has evolved over the course of multiple years.
Origin of statutory rape law
The original statutory rape laws were gendered as the laws designed to protect females only. The original laws also protected those under the age of 12 which would now fall under child molestation charges. In her analysis of the politics of statutory rape, Cocca also discussed how the original statutory rape laws were also divided along racial lines as well.
“While black female bodies were commodified, along with their childbearing capacity, their chastity was not.” (Cocca, p. 11).
Black females were not protected under statutory rape laws as they were seen as products rather than people. The gendered nature of these early laws is also demonstrated in the defenses that would allow men to get away with committing statutory rape. Men could claim that they were not aware of her age or that she enjoyed the sexual activity. According to Cocca these laws were designed to protect not a young woman’s rights or body but her chastity and status of marriage (p. 12). To further this sexual double standard, no such laws existed to protect boys.
Feminism and rape reform
The feminist reform of the 1970’s and 80’s led to gender-neutral terms being introduced into the laws. These changes also coincided with changes that increased the age difference between a perpetrator and victim. These changes were called the Romeo and Juliet laws. As the laws were originally written, two minors who have sexual intercourse with each other or a minor who has recently reached the age of consent, could be prosecuted under the law. The changes in age difference allowed these minors to face less penalties or less chance of prosecution. In the 1990’s these laws were changed in order to penalize males who impregnated females harder than other perpetrators. According to Cocco these changes were brought on by the conservative reform and presence in legislative decisions (p. 24). Although this change could be seen as gendered it was
“a move supported at first by some feminists and liberals who felt that young, abused, impoverished women deserved protection and predatory males deserved punishment” (Cocco, p. 24).
While the supporters of the statutory rape laws objectives were to protect young women from predators, it actually serves to patronize young girls and their sexuality.
Patronizing statutory rape legislation leads to the de-sexualization of women
The historical development of statutory rape laws as being highly gendered and patronizing to women have continued to the present day. The legislators behind the laws are focused on protecting women rather than ensuring equality.
“And they have ignored the possibility that rape laws as they are presently conceived, rather than protecting women, might actually work to their disadvantage by hindering prosecution of rapists and by exacerbating the inequality between men and women” (Legrand 919).
The ambiguities of rape law can make it difficult to obtain effective prosecution against rapists, diminishing the girl’s participation in the prosecution of her rapist. This can also diminish the girls right to choose and make decisions regarding her sexuality. In the unequal view of women as victims only, it undermines the ability of women to be able to desire sex and to enjoy being sexual beings which is a common misconception. Statutory rape law can be patronizing to girls as it denies their sexuality. Teenage girls are seen as incapable of having the mental capacity to be able to consent to sexual intercourse. Statutory rape laws ignore the rights of these girls to have a power over their sexuality rather the law defines the girls as rape victims. Supporters of statutory rape laws argue that the oversexualization of women in the media is one of the key problems, instilling younger girls with false confidence in their sexuality:
while girls may dress and act like sexy women, they are still girls. And the fact that some girls might consent to sex which is inherently exploitive, such as that documented in the Spur Posse accounts, is not evidence of their competence to consent, nor of their “womanliness,” but rather, of their immaturity and vulnerability to exploitation (Oberman, p. 18).
This view does not protect girls, rather it disparages them, as it does not take into account that teenage girls may be emotionally or mentally prepared for sex before the age of 18.
Impact on teenage boys
Statutory rape laws have not been kind to men either. While the laws have originally created to protect women, research has demonstrated that teenage boys can also become victims of statutory rape.
“Only recently has there been official recognition that teen boys can be just as traumatized as teenage girls by early sexual experiences” (Tennen p. 1).
As the victims of these early sexual experiences can have negative consequences for these boys, female perpetrators should be prosecuted just as much as male perpetrators. The recent trend found of relationships between female teachers and male students has brought the issue to public light. While gender neutral laws were put into place in the 1970’s the enforcement and prosecution of these laws has not been on the same level as prosecution for female victims. This could be attributed to the societal reinforcement of gender roles in the idea that men enjoy sex and teenage boys are lucky rather than victimized to be sleeping with older women. Boys are also less likely to report statutory rape even if they come to think that they have been abused. As Legrand argued
“this comment argues that rape laws are largely based on traditional attitudes about social roles and sexual mores” (p. 919).
This coincides with the argument that statutory rape laws are discriminatory towards boys as they assume that the boys are the perpetrators rather than victims as they should enjoy sex. These laws can also be discriminatory in that men are charged with statutory rape more so than women. Under this assumption women may get away with the crime of statutory rape more so than men.
Heightened discrimination toward homosexuals
While statutory rape laws can be discriminatory towards boys, they can be equally if not more discriminatory towards homosexual boys. In the origination of statutory rape laws there has been considerable evidence that the laws were utilized to discriminate and imprison homosexuals under the statutory rape statutes. While the gender equal language was instituted by feminists so that there was equality between the genders, critics argues that the law was not as beneficial for homosexuals.
“Along the same lines. the gender neutral language would enable the prosecution of homosexual couples already suffering from other forms of legalized discrimination based on their sexuality” (Cocca, p. 20).
Boys who were found engaging in sexual activities with each other could be arrested not under just laws against sodomy, in certain states, they could also be prosecuted if they were underage under the statutory rape law. Prejudiced officials would have an excuse to jail homosexual boys for these supposed crimes. While feminists believed they were freeing women and providing protection for males, the law became a weapon that could be wielded against homosexual boys.
Statutory rape law as an affront to the LGBT community
The persecution of homosexual boys under the statutory rape laws can be seen as another form of discrimination of not only boys but of members of the LGBT community. As Higdon argues this persecution can have legal consequences which will stay with these boys for the rest of their lives.
“As a result, these teens are faced with felony convictions, large fines and mandatory sex offender registration, penalties that would not attach had the victim been the opposite gender” (Higdon, p. 195).
Along with the legal consequences these boys have to deal with the psychological ramifications. Faced with not only having to be homosexual in a society which judges them they will also have to face the fact that a sexual act lead to legal problems. The proponents of the statutory rape laws did not intend for the ramifications of the law to be that it would be used as a tool of persecution of homosexuals however this is what the law has turned into over the years in which it has been evolved by feminists and various critics intended to make changes.
Short-sightedness of statutory laws
In the same manner, proponents of the statutory rape laws did not intend for the laws to be used to persecute homosexuals, the laws were also not designed to patronize girls or discriminate towards boys. Moralists attest that these laws were put in place to protect against unintended consequences such as teen pregnancy. This demonstrates that the same amount of foresight that goes into creating laws has not gone into statutory rape laws. This could be attributed to the fact that there is a lack of research into the effectiveness of rape laws.
“As a result, the laws do not effectively deter rape: police enforcements of complaints is inadequate, and judicial treatment of defendants is over solicitous” (Legrand, 919)
The lack of effective research leads to ineffective rape laws. This is crucial as rape laws do not only cover statutory rape but also rape in instances of severe sexual assault. Without effective laws or effective research, perpetrators of rape cannot adequately be brought to justice. Similarly, without effective laws, the effective prosecution of rapists cannot be completed. If this occurs, high rates of rape and statutory rape will continue to occur as there will not be preventive measure taken. If laws are not effective, the purpose of them needs to be analyzed and a discussion needs to be held as to whether there is a point to statutory rape laws at all.
Difficulties in drafting effective stautory rape legislation
The debate regarding rape laws is a debate which is held about laws in general. This debate can be seen as unique to Americans as our constitution dictates certain inalienable rights.
“The right to privacy and the right to protection exist in fundamental conflict- a conflict that illustrates the contradiction between freedom of action and security that recurs throughout our legal system” (Olsen, p. 387).
Due to this contradiction, it can be difficult to have a reasonable conversation surrounding laws and the effectiveness of these laws. The conversation regarding statutory rape laws needs to be revolve around if there is a purpose to having statutory rape laws. If the laws are needed, there also needs to be a discussion of the changes that can be made to make the laws more effective regarding gender, race and sexual orientation.
Statutory law’s polarizing effect on youth
Many times, those convicted of statutory rape are very young themselves. However, to young people, declaring that they cannot engage in sexual activity is as polarizing a topic as that of school uniforms. Rather than be more persecutory the laws need to be cognizant of the fact that young teenagers are being taught at an early age that their sexuality was not only wrong but illegal. Instead of charging these young teenagers for crimes, other avenues need to be sought for addressing the concerns posed by supported of statutory rape laws. Counseling can be provided to those who are deemed as statutory rape victims. Perpetrators would also benefit from counseling rather than imprisonment or being labeled as a sex offender.
On a broader scope, the views on sexuality need to be addressed on a societal scale. Boys are praised for being sexual while girls are punished. Boys are taught that it is okay to be sexually promiscuous while girls are taught to be chaste and protecting of their virtue. These stereotypes continue well into adulthood and laws that define their sexuality as adults. By changing these views and beliefs on sexuality, the high incidences of sexual assault and sex crimes can be drastically reduced. This is an important discussion as there is an epidemic of sexual assault in our society.
“In hundreds of ways, large and small, a woman’s life is shaped by the persistent threat of rape: women hesitate to venture out at night without male escorts, to live alone, to hitchhike, to stay late at the office to work alone, to take certain jobs” (LeGrand, 919).
Changing a societies views on sexuality could lead to:
- Lower rates of teen pregnancy
- Lower rates of STD’s among young people
- Increased comfort of parents engaging in discussions with their children regarding sex
- Fewer incidences of sexual assault
- Increased self image among teenage girls regarding their sexuality
- Increased respect for women from boys and men in general
Addressing rape laws is not important just for those affected, but for societal views on society as a whole.
Andre-Clark, A. S. Whither Statutory Rape Laws: Of Michael M., The Fourteenth Amendment, and Protecting Women from Sexual Aggression. S. Cal. L. Rev., 65, 1933. (1991).
Cocca, C. “Jailbait: The politics of statutory rape laws in the United States”. SUNY Press. (2004).
Higdon, M. J. “Queer Teens and Legislative Bullies: The Cruel and Invidious Discrimination Behind Heterosexist Statutory Rape Laws”. UC Davis L. Rev., 42, 195. (2008).
LeGrand, C. E. “Rape and rape laws: Sexism in society and law”. Cal. L. Rev., 61, 919. (1973)
Oberman, M. “Turning girls into women: Re-evaluating modern statutory rape law”. Journal of Criminal Law and Criminology, 15-79.(1994).
Olsen, F. “Statutory rape: A feminist critique of Rights Analysis”. Tex. L. Rev., 63, 387. (1984).
Tennen, K. “Wake Up, Maggie: Gender-Neutral Statutory Rape Laws, Third-Party Infant-Blood Extraction, and the Conclusive Presumption of Legitimacy”. J. Juv. L., 18, 1. (1997).