Most people think of statutory rape as a sexual activity involving an adult and a child below the "age of consent." Minors below the age of consent cannot agree to have sex with an adult (unless they are legally married). So, any form of sexual activity involving an adult and a minor may violate the law. This is true even when the child seems to consent to the act.
Today, statutory rape may also relate to the offender's position or relationship to the victim. Many states ban sexual conduct between persons when a power imbalance in the relationship implies coercion. This will include situations that involve a parent and child or a teacher and student.
While such crimes are often called statutory rape, many states do not use that term but instead classify the crime as sexual assault, rape, sexual battery, corruption of a minor, or carnal knowledge of a child. These laws tend to vary from state to state.
This article gives a brief overview of statutory rape. It discusses key components of such laws, including criminal penalties and legal defenses.
No Requirement of Force
Usually, people think of "rape" as a forcible sexual encounter. In some states, rape only represents a person forcing sexual intercourse on a woman or child. Although states may use a variety of statutes, they all ban forced sexual conduct (whether vaginal, oral, or anal sex). But, with statutory rape, using force or threats is not an element of the offense.
Statutory rape typically involves an underage participant or vulnerable person who appears to willfully engage in sexual relations with an older person or person who has some control over them.
Yet, in cases with an underage person, the state presumes no consent based on the child's age. As a result, the state need not prove the offender knew the child's age or any force or coercion.
In cases where the offender is in a position of authority over the victim, many statutes only require that the state prove the sexual conduct and the parties' relationship. If the incident includes actual force or coercion, many states prosecute the offender on more severe charges, such as child molestation or aggravated rape.
Most statutory rape laws focus on the age at which a person can legally consent to have sex. That age varies from state to state. In many states, including North Carolina and Michigan, the legal age of consent is 16 years of age. But in some states, the age of consent is 17 or 18.
In the eyes of the law, minors below this age are too immature to make a decision that could have consequences such as a pregnancy or a sexually transmitted disease. Society protects them from sexual exploitation by making it a criminal offense to have sex with them. Note that the "age of consent" is a different legal concept from the "age of majority," which refers to becoming an adult for general purposes, such as being able to enter into contracts or vote.
In California, the age of sexual consent is 18. Thus, anyone under 18 cannot consent to sexual conduct. California Penal Code section 261.5 prohibits unlawful sexual intercourse with a minor. The law defines the crime as an act of sexual intercourse with a minor who is not the spouse of the offender.
- The crime is a misdemeanor offense if the victim is less than three years younger than the offender.
- If there is more than a three-year age difference between the victim and the offender, the state can file misdemeanor or felony charges.
- If the victim is under 16 and the offender is 21 or over, the state can file a misdemeanor or felony charge, and the prison sentence could be up to four years.
California law also provides for the possibility of civil penalties for unlawful sexual intercourse with a minor. An adult who violates the law when the minor is less than two years younger can still face civil fines of up to $2,000.
The fines increase based on the age gap:
- If there is at least a two-year age difference, the fine can be up to $5,000.
- If there is at least a three-year age difference, the fine grows to $10,000.
- When the adult is 21 or older, and the victim is under 16, the fine can become up to $25,000.
To address potential statutory rape situations where two people are close in age, several states enacted what are sometimes called "Romeo and Juliet" laws. These laws create different rules where the offender is slightly older than the minor. They may permit an exemption so a minor who is under the age of consent may have a consensual sexual relationship with a person who is close to their age. The theory behind such laws is that the relationship of young persons who are close in age is not necessarily abusive or predatory.
For example, in New Jersey, having sex with an underage person is sexual assault only if the adult is at least four years older. Thus, a 22-year-old who has intercourse with a 15-year-old commits a felony, but an 18-year-old who does the same thing does nothing unlawful.
In some states, such as Georgia, closeness in age does not give a complete exemption. Instead, it lowers the offense level to a misdemeanor.
Other states set up a close-in-age affirmative defense. In Texas, the legal age of consent is 17 years of age. Texas Penal Code section 22.011 provides statutory rape provisions that fall under the crime of sexual assault.
The Texas statute states that sexual contact or sexual penetration between a person and a child (under 17) violates the law. It provides an affirmative defense if:
- The victim and offender are married
- The offender was not more than three years older than the victim, and the victim was at least 14 years old at the time
Outside those parameters, the offense is a second-degree felony. Upon conviction, the offender can face two to 20 years in prison, a fine of up to $10,000, or both.
Confusion about these age exemptions can trouble teens, adults, and law enforcement officers who must enforce the laws. In some jurisdictions, like Ohio, victim advocates have created instructive tools to explain the differences in the law.
Today, a state's statutory rape framework will also have specific statutory rape crimes that focus on crimes perpetrated against young children. They carry severe criminal penalties.
For example, in Ohio and other states, an adult who engages in sexual conduct with a child under 13 years of age can face charges of rape. It does not matter whether the offender knew the child's age. For such an offense, a court can impose a sentence of 25 years to life imprisonment.
In recent years, more states have passed laws targeting sex crimes by people in authority over a child or young adult. These statutory rape laws come from the idea that having authority or power over someone represents a form of coercion.
Although these crimes most often involve minor victims, the age of the victim may not be an element of the crime. The relationship component of these crimes can include:
- Scout troop leader/scout
- Clergy person/faith community member
- Prison guard/administrator and prisoner
- Police officer/arrestee
Depending on state law, sex crimes based on the offender having a position of authority may have no defenses related to the age of the victim. For example, in Pennsylvania, the age of sexual consent is 16 years of age. Yet, under Pennsylvania's crime of institutional sexual assault, a teacher who has sexual relations with a 16-year-old student at their school can still face statutory rape charges. That's because the institutional sexual assault crime prohibits teachers from having a sexual relationship with any student at the school. Age is not an element of the offense.
In Texas, the sexual assault statute singles out cases where the law presumes that a sexual assault is "without consent of the other person." This includes situations where the offender is the "clergyman" of the victim and causes the victim to submit to sex by exploiting their role of spiritual advisor and the victim's emotional dependence on them.
As with most statutory rape laws, you should seek legal advice to confirm what relationships fall into these prohibitions in your state.
Criminal Penalties for Statutory Rape
The usual punishment for someone convicted of statutory rape is imprisonment, sometimes along with a hefty fine. The younger the victim, the more prison time authorized by state law.
Conviction for a statutory rape offense will also require an offender to register with the sex offender registry. Offenders may have to register for 10 years or more, sometimes for life.
Several factors affect the severity of the sentence in a particular case. One is the age of the victim and the perpetrator.
Other factors that can impact a sentence include:
- The age difference between the two people
- Whether the actor and victim are members of the same household
- Whether the actor is a teacher or other employee at the victim's school
- The actor's past sex offenses, if any
Statutory rape laws apply without discrimination to the sex of the victim and the offender. Sex crime statistics tell us that men commit the majority of sex crimes. Yet, some studies demonstrate that men receive more severe punishment than women offenders.
Registered sex offenders may face other legal hurdles once released from prison. Several states have civil commitment statutes. In these states, the district attorney may file a motion to have the sex offender placed in civil confinement until an expert can certify they are safe to return to the community. In other states, like Michigan, the state may subject the released sex offender to lifetime electronic monitoring.
Legal Defenses Against a Statutory Rape Charge
As most statutory rape laws appear as "strict liability" offenses, this limits the amount of legal defenses available to someone accused.
Often, the only evidence the state must show for intent amounts to the intent to engage in sexual conduct with another. Yet, a skilled criminal defense attorney may discuss the legal defenses below with their client.
Mistake of Age
Some states provide a "mistake of age" defense to a statutory rape charge. This is sometimes called a "mistake of fact." The defendant may present evidence that they honestly and reasonably believed that the other person was above the age of consent. In other states, this defense may not exist.
California case law established the "mistake of age" defense as far back as 1964 in the case of People v. Hernandez. The case involved a defendant seeking a new trial as the lower court refused his request to present evidence that he had an honest and reasonable belief that his female partner was 18 years old (the age of consent). The court concluded in Hernandez that "in the absence of a legislative direction otherwise, a charge of statutory rape is defensible wherein a criminal intent is lacking."
The law sets forth a more qualified "mistake of age" defense in Pennsylvania at 18 Pa. C.S.A. section 3102. It states:
- Whenever the criminality of conduct depends on the child being below the age of 14 years, it is no defense that the defendant did not know the age of the child or reasonably believed the age of the child to be 14 years or older.
- When criminality depends on the child being below a critical age, older than 14 years, it is a defense for the defendant to prove by a preponderance of the evidence that he or she reasonably believed the child to be above the critical age.
Defense of Marriage
Many states specifically exempt parties from statutory rape laws when the parties are married during the offense. The age at which a person can enter marriage varies from state to state. If a person who is otherwise under the age of consent can show that their partner is their legal spouse, this may provide a valid defense. Presenting this information to law enforcement as soon as possible may lead to dismissal of the charges before trial. The key to such a defense will be the validity of the marriage. Does the evidence show each party was old enough to marry when they did marry?
No Sexual Relations
In this defense, the defendant claims that no sex happened. If the state cannot prove that the defendant and the victim had sexual relations, dismissal or an acquittal becomes likely.
To prove this claim, the defendant may count on the victim to recant her statements to the police before the arrest. Without a credible recantation, the defendant may testify or call witnesses to cast doubt on the victim's version of events.
States impose a duty on certain classes of professionals to report any suspicion of child abuse, which can include statutory rape. Generally, the professionals designated as mandatory reporters have access to children (such as teachers or medical professionals) or in service positions (such as public employees and clergy). Mandatory reporting requirements are outlined in state laws, so the people designated as mandatory reporters and the circumstances in which they must report suspected child abuse will vary from state to state.
Get Legal Help With A Statutory Rape Case
If you or someone you know is a victim of statutory rape, you can seek legal advice or speak to a victim advocate to get help. If you are not sure who to call, contact the national sexual assault hotline sponsored by RAINN at 1-800-656-4673.
If you or someone you know is facing accusations of statutory rape or any other crime, handling the matter on your own can be risky. Be sure to speak with an experienced attorney who knows criminal law in your state. Consider contacting a criminal defense lawyer near you today.