There’s no question that forcible rape—sexual intercourse that isn’t consensual— is unacceptable and should be illegal.
Statutory rape, however, is a murkier area.
Statutory rape laws make sexual intercourse involving willing partners illegal by virtue of the age of at least one of the participants. The theory is that young men and women below a certain age aren’t capable of knowingly consenting to sex with a full appreciation of the impact of the act and its possible consequences.
The age of consent—that is, the age at which an individual may legally agree to engage in sexual intercourse—varies by state, but ranges from 16 to 18. In some states, individuals under the age of consent may not legally consent to sex under any circumstances at all.
However, in other states, an individual under the age of consent may still legally consent to sex depending on the age difference between the partners, such as if the difference is less than two to four years. (Such provisions are sometimes referred to as “Romeo and Juliet” laws.)
For example, in a state with an age of consent of 16, a 15-year-old girl may be able to legally consent to sex with her 17-year-old boyfriend.
Setting aside the question of whether existing statutory rape laws make sense, especially in our current climate, the application of these laws is often unfair and disproportionately penalizes one party.
I was reading a recent article in the New York Times about Zachery Anderson, a 19-year-old who met a girl online who said she was 17. They eventually met in person and had consensual sex.
The girl’s mother, concerned about her whereabouts, contacted the police, who were present when she returned home. When she disclosed what she’d been doing, Anderson found himself under arrest because she was actually only 14.
The focus of the Times article is on how Anderson’s guilty plea to fourth-degree criminal sexual conduct may result in his inclusion in Indiana’s sexual offender registry and the unfair consequences of his designation as a sexual offender.
However, what struck me was that the girl faced no consequences at all. (Her parents may have punished her in some manner, but she certainly faced no legal consequences.)
After all, she lied about her age. And one can reasonably presume that she did so in order to attract older boys.
To the girl’s credit, she and her mother have publicly supported Anderson and testified on his behalf, asking for leniency. Nonetheless, it doesn’t seem right to me that her lie may ruin Anderson’s life and yet she gets off scot-free.
Some would argue that individuals are responsible for confirming the age of their sexual partners, particularly if it’s possible that the partner may be under the applicable age of consent.
But I know I would have a hard time telling a 14-year-old from a 17-year-old these days, given how young people of both sexes dress, talk and act. Do we honestly expect individuals to ask prospective partners for ID, such as a driver’s license or birth certificate? And are young men and women equipped to spot fake ID?
Mistake of age is, in fact, a defense to statutory rape in some states, such as California and Illinois. In other words, if the defendant reasonably believed that the victim was at or above the age of consent, he or she may escape liability for this crime.
But in other states, statutory rape is a strict liability crime, meaning the defendant doesn’t need to know that the victim is underage to be guilty. That is, “I thought she was 17” or “She told me she was 18” isn’t a defense in such states.
I believe that mistake of age should be a defense to statutory rape across the country. I also believe that there should be consequences for lying about one’s age to a sexual partner.
All individuals need to be held accountable for their own behavior and its consequences in all contexts.
Regarding the Anderson case, I have a hard time seeing this girl as a victim. After all, she knowingly and intentionally lied about her age. It’s almost as if she entrapped this young man into committing this crime. And now he’s forced to suffer the consequences of their mutual and consensual act but she bears no responsibility at all. How is that fair?
I also can’t help but wonder about the role of gender in this case. Would the police, prosecutors or courts have responded the same way if the 19-year-old had been a young woman who had sex with a 14-year-old boy claiming to be 17?
Unfortunately, women are usually the victims of rape, statutory or otherwise. (Note that women have been prosecuted for statutory rape, most notably in teacher-student relationships.)
However, women also need to take responsibility for their own actions, including their role in sexual encounters.
As one online commenter to the Times article put it:
“My problem with this is the paternalistic attitude of everyone involved. No one hear (sic) seems capable of entertaining the idea that this girl, and others in similar situations, have sexual desire themselves, and the agency to fulfill that desire. The insistence on treating her as a victim, even though she chose her own sexual partner, told a lie to ensure that she’d get what she wanted (sex), is bizarre…Apparently the real threat here is the idea that 14-year-old girls desire sex and have the wherewithal to get it. Assigning disproportionate blame to her partner ensures the narrative that he is a predator and she a hapless victim, even as she stands there saying, But this was my choice!…Many girls like, want, and seek out sex (yes, even with strangers); that it makes the patriarchy uncomfortable shouldn’t matter.”
It seems to me that there are parallels between a statutory rape case such as this one and prostitution. After all, prostitution is another example of a consensual sexual act that’s illegal. Under criminal law, both the prostitute who offers to perform sexual acts for money and the customer who agrees to pay for those sexual acts are guilty of crimes.
So if you’re going to give Anderson a criminal record for engaging in consensual sex and brand him as a sexual offender for life, the girl should also be compelled to face legal consequences for her intentional misrepresentation of her age, which directly lead to the sexual act at issue.
Robin L. Barton, a legal journalist based in Brooklyn, NY, is a former assistant district attorney in the Manhattan District Attorney’s Office and a regular blogger for The Crime Report. She welcomes comments from readers.