In common law jurisdictions, statutory rape is nonforcible sexual activity in which one of the individuals is below the age of consent (the age required to legally consent to the behaviour). [1] [2] Although it usually refers to adults engaging in sexual contact with minors under the age of consent, it is a generic term, and very few jurisdictions use the actual term statutory rape in the language of statutes. [3] In statutory rape, overt force or threat is usually not present. Statutory rape laws presume coercion because a minor or mentally disabled adult is legally incapable of giving consent to the act.
Different jurisdictions use many different statutory terms for the crime, such as sexual assault , rape of a child, corruption of a minor, unlawful sex with a minor, [4] carnal knowledge of a minor, sexual battery, [5] or simply carnal knowledge . The terms child sexual abuse or child molestation may also be used, but statutory rape generally refers to sex between an adult and a minor past the age of puberty, and may therefore be distinguished from child sexual abuse. [1] [6] Sexual relations with a prepubescent child is typically treated as a more serious crime. [1] [6]
In many jurisdictions, the age of consent is interpreted to mean mental or functional age. [7] As a result, victims can be of any chronological age if their mental age makes them unable to consent to a sexual act. [7] [8] [9]
Consensual teenage sex is common in the United States. A 1995 study revealed that 50% of U.S. teenagers have had sexual intercourse by the age of sixteen. It is estimated that there are more than 7 million incidents of statutory rape every year. However, it is clear that most incidents are not prosecuted and do not lead to arrests and convictions. [10] Laws vary [11] in their definitions of statutory rape.
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Statutory rape laws are based on the premise that an individual is legally incapable of consenting to sexual intercourse until that person reaches a certain age. The law mandates that even if he or she willingly engages in sexual intercourse, the sex is not consensual. [12] Critics argue that an age limit cannot be used to determine the ability to consent to sex, since 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. [13]
Another rationale comes from the fact that minors are generally economically, socially, and legally 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. [3]
Another argument presented in defence of statutory rape laws relates to the difficulty in prosecuting rape (against a victim of any age) in the courtroom. Because forced sexual intercourse with a minor is considered 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. [13]
The original purpose of statutory rape laws was to protect young, unwed females from males who might impregnate them and not take responsibility by providing support for the child. [13] In the past, the solution to such problems was often a shotgun wedding, a forced marriage called for by the parents of the girl in question. This rationale aims to preserve the marriageability of the girl and to prevent unwanted teenage pregnancy. [12]
Historically, a man could defend himself against statutory rape charges by proving that his victim was already sexually experienced prior to their encounter (and thus not subject to being corrupted by the defendant). [13] A requirement that the victim be "of previously chaste character" remained in effect in some U.S. states until as late as the 1990s. [14]
Until the late 1970s, sex involving an adult female and an underage male was often ignored by the law, due to the belief that it often constitutes sexual initiation of the younger male. [15] This view still exists in modern times, as there is a gender bias in courts on teacher–student sexual relationships resulting in far lesser punishment of female offenders. [16] In 2005, the Office of Juvenile Justice and Delinquency Prevention estimated that five per cent of statutory rape victims were male, and that 94% of the perpetrators in these cases were female; 73% of the female perpetrators were aged 21 or over, while 76% of the male victims were aged 15 or younger. [17]
A 2006 review of scientific research found that the majority of men who had sex with women as underaged boys hold a positive reaction about the relationship, with a third of them being neutral and less than 5% being negative toward it. However, these men expressed slightly higher levels of psychological distress than men who had not had these experiences. The authors suggested that societal views may disincline men from recognising negative or abusive elements of the relationships. In contrast, women who were involved with adult men when they were underage mostly had negative reactions once they left the relationship, seeing them as sexual deviants who could not find willing same-age partners and who instead exploited young girls. [18]
U.S. courts have held that male victims of statutory rape are liable for child support for any children resulting from the crime, uniformly taking the view that the criminal act of the mother is irrelevant to a child support obligation. [19] [20] [21] In many cases, the boys were not characterised as victims, but as willing participants. Courts often rely on the consent of the victim to the sexual intercourse when imposing child support orders, even though within the context of statutory rape prosecutions minors are deemed legally incapable of giving consent. [19] County of San Luis Obispo v. Nathaniel J. examined the case of a 15-year-old male victim and a 34-year-old female perpetrator where the sexual assault resulted in the birth of a child. When questioned, the male victim stated that the sex was "a mutually agreeable act". The 34-year-old perpetrator was prosecuted and convicted of unlawful sex with a minor. However, the lawsuit in question demanded child support from the male victim for the child who was born. The court found that the boy was "not an innocent victim", and had responsibilities to the child despite the fact that he had been the victim of a sexual assault and had not been of the age of consent. The court ruled that the victim would be responsible for child support once he reached the age of majority. [22] [23]
In some jurisdictions, relationships between adults and minors are penalised more when both are the same sex. For example, in the US state of 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 did not apply to same-sex couples, leaving them subject to higher penalties than opposite-sex couples for the same offence. This resulted in higher statutory rape convictions, larger fines, and sex offender registration for teens involved in same-sex statutory rape. [24] The Kansas law was successfully challenged as being in conflict with the U.S. Supreme Court rulings Lawrence v. Texas and Romer v. Evans . [25] The Lawrence precedent did not directly address equal protection, but its application in the case of State v. Limon (2005) invalidated age of consent laws that discriminate based on sexual orientation in Kansas. [26] [27]
The law reads in Danish: [28]
§ 222. Den, som har samleje med et barn under 15 år, straffes med fængsel indtil 8 år, medmindre forholdet er omfattet af § 216, stk. 2. Ved fastsættelse af straffen skal det indgå som en skærpende omstændighed, at gerningsmanden har skaffet sig samlejet ved udnyttelse af sin fysiske eller psykiske overlegenhed.
Stk. 2. Har gerningsmanden skaffet sig samlejet ved tvang eller fremsættelse af trusler, kan straffen stige til fængsel indtil 12 år.
Which translates roughly to:[ citation needed ]
§ 222. One who has sexual intercourse with a child under the age of 15, shall be punished by imprisonment for up to 8 years, unless the situation is covered by § 216 paragraph 2. In determining the penalty, it shall be an aggravating circumstance if the perpetrator has gained intercourse by exploiting their physical or mental superiority.
Paragraph. 2. If the offender has gained intercourse by coercion or threats, the penalty may be increased to imprisonment for up to 12 years.
The content of § 216 paragraph 2 specifies the penalty can be increased to 12 years, if the child is under the age of 12.
In Italy the age of consent is 14. A Romeo and Juliet rule applies for an age difference of one year. However, if the older person has a position of authority over the younger, such as a relative, teacher, parish priest, or doctor, the age of consent is 16.[ citation needed ]
Note on marriage;
Notes on the Dutch law;
For England and Wales, the legal framework of the Sexual Offences Act 2003 differentiates between sexual contact with children under 13, and sexual contact with those at least 13 but under 16. [30]
Sexual penetration of a child under 13 is termed rape of a child under 13, an offence created by section 5 of the act, which reads:
(1) Rape of a child under 13
A person commits an offence if—
- (a) he intentionally penetrates the vagina, anus or mouth of another person with his penis, and
- (b) the other person is under 13.
The explanatory notes read: "Whether or not the child consented to this act is irrelevant". [31] The term rape is used with regard to children under 13; consensual sexual penetration of a child above 13 but under 16 is defined as sexual activity with a child, and punished less severely (section 9, which requires the perpetrator to be 18 or over). A minor can also be guilty of sexual contact with another minor (section 13), but the explanatory notes state that decisions whether to prosecute in cases where both parties are minors are to be taken on a case-by-case basis. [32] The Crown prosecution guidelines state "[I]t is not in the public interest to prosecute children who are of the same or similar age and understanding that engage in sexual activity, where the activity is truly consensual for both parties and there are no aggravating features, such as coercion or corruption." [33]
Northern Ireland follows a similar legal framework, under the Sexual Offences (Northern Ireland) Order 2008. [34] This act overhauled the sexual offences laws in Northern Ireland, and fixed the age of consent at 16 in line with the rest of the UK; prior to this act it was 17.
In Scotland, the Sexual Offences (Scotland) Act 2009 also fixes an age of consent of 16, and is also two-tiered, treating children under 13 differently than children 13–16. Section 18, rape of a young child, applies to children under 13. [35] Before the enactment of this act, Scotland had very few statutory sexual offences, with most of its sexual legislation being defined at common law, which was increasingly seen as a problem in particular for the issue of consent. [36] The creation of a two-tier age limit was deemed very important during the drafting of the act. [37]
Often, teenage couples engage in sexual conduct as part of an intimate relationship. This may occur before either participant has reached the age of consent, or after one has but the other has not. In the latter case, in most jurisdictions, the person who has reached the age of consent is guilty of statutory rape. In some jurisdictions, if two minors have sex with each other, they are both guilty of engaging in unlawful sex with the other person. [38] [39] [40] The act itself is prima facie evidence of guilt when one participant is incapable of legally consenting.
Many jurisdictions have passed so-called "Romeo and Juliet laws" [41] which serve to reduce or eliminate the penalty of the crime in cases where the couple's age difference is minor and the sexual contact would not have been rape if both partners were legally able to give consent. Such laws vary, but can include:
Such laws generally apply to a couple whose ages differ by less than a specified number of years. They are, however, generally unavailable in any case where the older participant has an authoritative position over the younger regardless of relative age, such as a teacher/student, coach/player or guardian/ward relationship, or if any physical force was used or serious physical injury resulted. This is normally accomplished by making acts involving these circumstances separate crimes to which the "Romeo and Juliet" defence does not apply.
An example is Texas Penal Code, Section 22.011(e). It provides an affirmative defence to a charge of sexual assault if all of the following apply;
A similar affirmative defence exists in the Texas Penal Code for the related crime of "continuous sexual abuse of a young child or children". Any defence under either law, however, does not apply to the separate crime of "improper educator/student relationship" (sexual relations between a licensed teacher or school employee and a student of the same school), or for "aggravated sexual assault" (the forcible rape statute of Texas law).
Some countries other than the United States also have Romeo and Juliet laws. Ireland's 2006 law has been contested because it treats girls differently from boys. [42] [43] In Canada, the age of consent is normally 16, [44] but there are two close-in-age exemptions: sex with minors aged 14–15 is permitted if the partner is less than five years older, and sex with minors aged 12–13 is permitted if the partner is less than two years older. [45] Other countries state that the sexual conduct with the minor is not to be punished if the partners are of a similar age and development: for instance, the age of consent in Finland is 16, but the law states that the act will not be punished if "there is no great difference in the ages or the mental and physical maturity of the persons involved". [46] Another approach takes the form of a stipulation that sexual intercourse between a minor and an adult is legal under the condition that the latter does not exceed a certain age. In Slovenia, the age of consent is 15, but the activity is only deemed criminal if there is "a marked discrepancy between the maturity of the perpetrator and that of the victim". [47]
While there is broad support for the concept of statutory rape as criminal in the United States, there is substantial debate on how vigorously such cases should be pursued and under what circumstances. [ citation needed ]
In May 2006, the Irish Supreme Court found the existing statutory rape laws to have been unconstitutional, since they prevented the defendant from entering a defence (e.g., that he had reasonably believed that the other party was over the age of consent). [48] 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 2 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. [49]
In the aftermath of the December 2007 disclosure by then-16-year-old US actress Jamie Lynn Spears, the sister of pop star Britney Spears, that the father of her baby was 18-year-old Casey Aldridge, [50] there was talk of the prosecution of Aldridge for statutory rape, which could be done under current Louisiana state law. [51] [52] Prosecution in the case was never pursued.
The age of consent is the age at which a person is considered to be legally competent to consent to sexual acts. Consequently, an adult who engages in sexual activity with a person younger than the age of consent is unable to legally claim that the sexual activity was consensual, and such sexual activity may be considered child sexual abuse or statutory rape. The person below the minimum age is considered the victim, and their sex partner the offender, although some jurisdictions provide exceptions through "Romeo and Juliet laws" if one or both participants are underage and are close in age.
Sexual assault is an act in which one intentionally sexually touches another person without that person's consent, or coerces or physically forces a person to engage in a sexual act against their will. It is a form of sexual violence that includes child sexual abuse, groping, rape, drug facilitated sexual assault, and the torture of the person in a sexual manner.
The Sexual Offences Act 2003 is an Act of the Parliament of the United Kingdom.
Carnal knowledge is an archaic or legal euphemism for sexual intercourse. In modern statutes, the term "sexual penetration" is widely used, though with various definitions.
The precise definitions of and punishments for aggravated sexual assault and aggravated rape vary by country and by legislature within a country.
The legal age of consent for sexual activity varies by jurisdiction across Asia. The specific activity engaged in or the gender of participants can also be relevant factors. Below is a discussion of the various laws dealing with this subject. The highlighted age refers to an age at or above which an individual can engage in unfettered sexual relations with another who is also at or above that age. Other variables, such as homosexual relations or close in age exceptions, may exist, and are noted when relevant.
The ages of consent for sexual activity vary from age 15 to 18 across Australia, New Zealand and other parts of Oceania. The specific activity and the gender of its participants is also addressed by the law. The minimum age is the age at or above which an individual can engage in unfettered sexual relations with another person of minimum age. Close in age exceptions may exist and are noted where applicable. In Vanuatu the homosexual age of consent is set higher at 18, while the heterosexual age of consent is 15. Same sex sexual activity is illegal at any age for males in Papua New Guinea, Kiribati, Samoa, Niue, Tonga and Tuvalu; it is outlawed for both men and women in the Solomon Islands. In all other places the age of consent is independent of sexual orientation or gender.
The age of consent varies by jurisdiction across Europe. The ages of consent – hereby meaning the age from which one is deemed able to consent to having sex with anyone else of consenting age or above – are between 14 and 18. The vast majority of countries set their ages in the range of 14 to 16; only four countries, Cyprus (17), Ireland (17), Turkey (18), and the Vatican City (18), set an age of consent higher than 16.
In North America, the legal age of consent relating to sexual activity varies by jurisdiction.
The age of consent in Africa for sexual activity varies by jurisdiction across the continent, codified in laws which may also stipulate the specific activities that are permitted or the gender of participants for different ages. Other variables may exist, such as close-in-age exemptions.
Rape is a type of sexual assault initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, under threat or manipulation, by impersonation, or with a person who is incapable of giving valid consent.
Age of consent reform is an effort to change age of consent laws. Proposed reforms typically include raising, lowering, or abolishing the age of consent, applying close-in-age exemptions, changing penalties, or changing how cases are examined in court. A related issue is whether or not to enforce ages of consent on homosexual relationships that are different from those enforced on heterosexual relationships. Organized efforts have ranged from academic discussions to political petitions.
State v. Limon, 280 Kan. 275, 122 P.3d 22 (2005), is a Kansas Supreme Court case in which a state law allowing for lesser punishment for statutory rape convictions if the partners were of different sexes than if they were of the same sex was found unconstitutional under both the federal and Kansas state constitutions. It was among the first cases to cite the United States Supreme Court decision Lawrence v. Texas as precedent, months after the Virginia Supreme Court did similarly in Martin v. Ziherl.
Laws regarding incest vary considerably between jurisdictions, and depend on the type of sexual activity and the nature of the family relationship of the parties involved, as well as the age and sex of the parties. Besides legal prohibitions, at least some forms of incest are also socially taboo or frowned upon in most cultures around the world.
Laws against child sexual abuse vary by country based on the local definition of who a child is and what constitutes child sexual abuse. Most countries in the world employ some form of age of consent, with sexual contact with an underage person being criminally penalized. As the age of consent to sexual behaviour varies from country to country, so too do definitions of child sexual abuse. An adult's sexual intercourse with a minor below the legal age of consent may sometimes be referred to as statutory rape, based on the principle that any apparent consent by a minor could not be considered legal consent.
In the United States, each state and territory sets the age of consent either by statute or the common law applies, and there are several federal statutes related to protecting minors from sexual predators. Depending on the jurisdiction, the legal age of consent is between 16 and 18. In some places, civil and criminal laws within the same state conflict with each other.
There are a number of sexual offences under the law of England and Wales, the law of Scotland, and the law of Northern Ireland.
Child sexual abuse laws in the United States have been enacted as part of the nation's child protection policies.
Rape is a statutory offence in England and Wales. The offence is created by section 1 of the Sexual Offences Act 2003:
(1) A person (A) commits an offence if—
(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
(3) Sections 75 and 76 apply to an offence under this section.(4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.
Rape laws vary across the United States jurisdictions. However, rape is federally defined for statistical purposes as:
Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.
Voluntary sexual intercourse with a post-pubescent minor who is younger than the legal age of consent is described as statutory rape. ... In most states, age of consent is delimited between 16 years old and 18 years old. ... In almost every jurisdiction, prepubescent children may not engage in any sexual contact. ... Engaging in sexual contact with a prepubescent child is a serious criminal offense and a felony.
Child molestation: A form of sexual assault committed against a child below a certain age. That age is usually set between 12 and 14 since such ages correspond to the onset of puberty, thereby differentiating the offense from statutory rapes (against post-pubescent adolescents) and various degrees of sexual assaults/sexual batteries against victims over the age of consent for sex.