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Statutory Rape and the Underage Person's Past Sexual Conduct:

A commenter writes:

The general topic of urban law legends always interested me. I traced the belief that if three of your friends testify to sex with a statutory rape complainant, she is declared a prostitute and the charge is dismissed, back to the common law allowing cross-examination of sex victims' sex lives.

That's not quite a legend, it turns out. Some states did indeed provide the underage person's past sexual history as a defense to at least certain kinds of statutory-rape-related charges, and at least one still does. Texas Penal Code §.; 22.011, for instance, used to provide, until 1993, that it was a defense to statutory rape that "the child was at the time of the offense 14 years of age or older and had prior to the time of the offense engaged promiscuously in conduct described in that subsection." The same rule seems to have existed in Mississippi at least until at least the mid-1980s, and in Florida and Tennessee until the 1990s. Likewise, Mass. Stat. ch. 272 § 4 to this day prohibits "induc[ing] any person under 18 years of age of chaste life to have unlawful sexual intercourse."

Likewise, the Model Penal Code (§ 213.6), proposed in the early 1960s, provided for a promiscuity defense, and cited some past statutes (in South Carolina, Tennesse, and Virginia) as authority, while noting that the then-modern trend had been to reject such a defense. "[P]roof of prior sexual promiscuity," the Code's drafters reasoned, "rebuts the presumption of naivete and inexperience that supports the imposition of criminal liability." Pennsylvania had enacted this provision in 1972, but has since repealed it (as best I can tell, in 1976).

I'm not sure that the underage person's past sexual history is a complete defense today anywhere in the U.S. -- Massachusetts, for instance, generally prohibits sex with under-16-year-olds, without a "chaste life" qualifier. So don't you folks start getting any ideas here. Still, the promiscuity exception to statutory rape did exist in at least some jurisdictions, until not so long ago.

Public_Defender (mail):
Many people don't realize how much these laws have changed in the very recent past. Another fact that many people don't know is that traditionally, marriage was a defense to rape. To be more accurate, lack of a marital relationship was an element of the offense.

Accordingly, a man could not be prosecuted for rape if he forced his wife to have sex. Providing sex on demand was part of a wife's marital duties. That was "traditional marriage" until a couple decades ago. So if you oppose "modern changes" to "traditional marriage," you should support allowing a man to rape his wife.
12.18.2007 6:45am
Matty G:

Accordingly, a man could not be prosecuted for rape if he forced his wife to have sex. Providing sex on demand was part of a wife's marital duties. That was "traditional marriage" until a couple decades ago. So if you oppose "modern changes" to "traditional marriage," you should support allowing a man to rape his wife.


Oh, please. Didn't we just have a post from Eugene about conclusions that don't follow from the argument.

So I guess if you oppose "modern changes" to "drinking laws," you should be in favor of teenagers killing themselves in car crashes.
12.18.2007 8:29am
BU2L:
I oppose "modern changes" to "drinking laws," and am in favor of changing the drinking age back to 18. ;)
12.18.2007 8:33am
Anonymouseducator (mail) (www):
Do the people the underage person had sex with have to be underage themselves, or could prior instances of statutory rape serve as a defense for subsequent statutory rapists?
12.18.2007 8:35am
cathyf:
Suppose, in fact, that the 12-yr-old is a prostitute. While, yes, I would like to prosecute the john, I think it's more important to prosecute her pimp.
12.18.2007 8:58am
Daniel Chapman (mail):
Wow, PD.. you usually don't troll like that.
12.18.2007 9:27am
Zacharias (mail):
So do I have a defense to statutory rape if I have consensual sex with an underage person who is either legally married to someone else, separated or divorced?
12.18.2007 9:33am
Aultimer:

So if you oppose "modern changes" to "traditional marriage," you should support allowing a man to rape his wife.

Before I decide, what does traditional marriage say about allowing wives to rape husbands?
12.18.2007 9:39am
Prufrock765 (mail):
Zacharias:
At least in Indiana, the answer to your question is: "yes"
12.18.2007 9:55am
Anonymouseducator (mail) (www):
How's the job market in Indiana?
12.18.2007 10:21am
Zacharias (mail):
If a 14-year old can sexually liberate himself or herself by getting married and divorced, it seems like a violation of equal protection to deny that right to unmarried teens of the same age. Just another example of state preference for the religion/superstition represented by marriage.
12.18.2007 10:27am
Milhouse (www):
As far as I know, providing sex on demand is still part of a wife's marital duties. Failing to do so without a good reason is probably grounds for divorce. The only change is that the law no longer tolerates husbands who use violence to enforce this contractual provision. I mean, if it's your business partner's day to mind the shop and he decides to close the shop and go to the races, you can sue him or you can break up the partnership but you can't punch him in the face and force him to work.
12.18.2007 10:27am
Prufrock765 (mail):
I didnt bother to look it up but my memory is that it's not easy in any state for someone to get married prior to his 16th birthday. I have never met anyone who was, or had been, married that young.
Also, Milhouse, very few states require specific contextual grounds for divorce.
12.18.2007 10:39am
jim:

Accordingly, a man could not be prosecuted for rape if he forced his wife to have sex. Providing sex on demand was part of a wife's marital duties. That was "traditional marriage" until a couple decades ago.



As a practical matter the moral definition of rape necessarily diverges from the legal definition of rape. If you and your significant other have a few drinks and then have sex, legally that can be rape, whereas we would almost always agree that morally this isn't rape. The legal definition is flawed in a way that is unlikely to matter, because if your partner doesn't think it's rape, your partner probably won't drag you before a court.

We as a society know that sometimes this logic will fail and create an injustice, but we accept the rule in order to make sure that a higher number of real rapes are successfully prosecuted, a goal that requires the legal definition of rape to be a broad one. We don't aim at perfect justice, we aim at a workable calculus balancing twin evils of over-prosecution and under-prosecution.

When you are dealing with a married couple, it is easy to make a case that the calculus should be balanced differently. Don't we assume that a married couple often just has sex with only the consent implicit in their relationship?

Now, probably that argument is wrong, and you don't need a different set of presumptions for married couples. But I would need some convincing before I would accept that the point behind the law, relatively recently, was to condone or promote spousal rape. It seems more likely that it was an attempt to carve a simple legal rule out of a complex moral landscape and reflected legislative deference to much older social systems.
12.18.2007 10:58am
Houston Lawyer:
There are also social conventions regarding statutory rape. South of the border, marriages tend to happen at an age that is lower than the age of consent here. There have been numerous documented cases of Mexican men prosecuted for statutory rape here with the girl/woman that they soon thereafter married.

I know a few women who got married at 16 or younger. All three of the girls who grew up next door to me did so, and the third wasn't even pregnant at the time.
12.18.2007 11:10am
Serendipity:
I would really like to see a thread on statutory rape laws and similar statutes and how they overlap with mandatory sex offender registration and the subsequent absurdity of some of the sentences. This teacher for instance had consensual sex with a young woman (18) who was a student at the high school where he worked. He will get a year in prison, five years probation, and have to register as a sex offender afterwards. A bit much if you ask me, though I suppose not, as long as we are protecting our "children," some might say.
12.18.2007 11:15am
Serendipity:
For some reason, the link to the story I was talking about did not load:
http://www.ledger-enquirer.com/news/story/189083.html
12.18.2007 11:18am
Bored2L:
So maybe I am just not paying attention, but how does a defendant prove the alleged victim was unchaste? It would seem that just giving someone's opinion of her would not be enough. My question is how do you get someone else to testify that they did something with her? Wouldn't that expose that witness to liability?

Or is this just a sign that finals have completely cooked my brain?
12.18.2007 12:01pm
J.G. Ballard (mail):
Zacharias, Anonymouseducator, and Prufrock765:

Zacharias asked, "So do I have a defense to statutory rape if I have consensual sex with an underage person who is either legally married to someone else, separated or divorced?"

And Prufrock765 responded, "At least in Indiana, the answer to your question is: 'yes'"

First, there is no "statutory rape" in Indiana. There is, however, Sexual Misconduct with a Minor. Which is generally defnied as sexual intercourse or deviate sexual conduct with a child who is 14 or 15 years old. Anything younger than that is Child Molesting, anything older is the age of consent, unless you are in a particular relationship with the child, which can become Child Seduction.

And, yes, the Sexual Misconduct with a Minor statute does provide that "It is a defense that the child is or has ever been married. However, this subsection does not apply to an offense described in subsection (a)(2) or (b)(2)." I.C. 35-42-4-9(d).

Subsections (a)(2) and (b)(2) elevate the level of the crime when it is "committed by using or threatening the use of deadly force, while armed with a deadly weapon, or if the commission of the offense is facilitated by furnishing the victim, without the victim's knowledge, with a drug . . . or a controlled substance . . . or knowing that the victim was furnished with the drug or controlled substance without the victim's knowledge."

There are other defenses that aren't necessarily related to this topic, however.
12.18.2007 12:19pm
Laura S.:

We as a society know that sometimes this logic will fail and create an injustice, but we accept the rule in order to make sure that a higher number of real rapes are successfully prosecuted, a goal that requires the legal definition of rape to be a broad one. We don't aim at perfect justice, we aim at a workable calculus balancing twin evils of over-prosecution and under-prosecution.


Jim, your remarks are quite accurate. What's happened in the past 25 years is that we've continually weakened the prosecutors burden in proving a rape charge. There are two elements to any rape conviction:

1) There was penetration
2) The penetration was not consensual

Its on point #2 that we've abandoned most of the restrictions. We've reached a point now where establishing #2 has come down to the woman's word + any evidence of physical trauma or weakening of the consent. Many of the defenses against point #2 have been explicitly exorcised from the law. e.g., a prior relationship with the woman used to constitute grounds for reasonable doubt--it does not now.

I think this is where we really get into trouble: insisting that the legal remedy be a felony conviction meeting the 'beyond a reasonable doubt' standard. That this should be hard to rape cases is obvious--especially given the rise of casual sexual intercourse. The solutions is not to create statutory rules (rape shield) that weaken the standard.

The right way to remedy the difficulties in acquiring rape convictions should have been greater emphasis on misdemeanor prosecutions.
12.18.2007 12:21pm
Thoughtful (mail):
It would seem, even in certain states in the 1970s, SOMEone was able to be prosecuted. SOMEone had to turn an initially chaste girl into an unchaste one. So perhaps Bored2L is on to something. It's sort of a prisoner's dilemma. X defends himself by claiming the girl is unchaste and as evidence offers up her prior activity with Y. Y feels safe in supporting X's claim because he, too, met the girl when she was unchaste, with supporting evidence provided by Z. But Z is unwilling to testify, because he could be prosecuted since she was either chaste when he met her or he doesn't know any Z' who can support her unchaste state when Z met her. But without Z's testimony, Y is at risk, so won't testify for X. [OK, technically not a prisoner's dilemma situation; a game-theoretic situation.]
12.18.2007 12:27pm
Roy Mustang (mail):
Yes, I knew she was under 18. But, Your Honor, I read it was ok on 'The Volokh Conspiracy.'
12.18.2007 12:49pm
Guest101:

Anything younger than that is Child Molesting, anything older is the age of consent, unless you are in a particular relationship with the child, which can become Child Seduction.

Does "particular relationship" mean a familial relationship? Surely it doesn't mean a long-term romantic relationship, which would seem to create the perverse result that a one-night stand with a 16 year old is fine in Indiana, but a long-term dating relationship is not?

I'm not sure to what extent Eugene intends this post to be critical of the chastity defense (the post seems fairly neutral), but I'd hesitate to compare it to the marital defense to rape at common law. Statutory rape is the only strict liability felony of which I'm aware, and if we're going to justify such measures on the ground that underage persons need protection from adult predators, we'd better make very sure that the purported victim is really in need of such protection.
12.18.2007 1:08pm
hattio1:
Statutory rape is not a strict liability offense everywhere. In many places there is a reasonable mistake of age defense, and in AK, there is a reported case that says an extensive prior sexual history, known by the defendent, can come in to help prove the reasonable mistake of age. The theory is that in order to have this much experience, its reasonable to assume that she is of a certain age.
12.18.2007 2:18pm
CEB:
I can kind of see the reasoning behind this, i.e., to establish that the sex was truly consensual in the moral sense and not the result of coercion, but it's pretty appalling when you look at it closer. A defense to a crime is that the alleged victim was the victim of the same crime earlier in her life. (sticking with victim and crime in the legal sense) And I highly doubt that they would (or even could) go after the original perpetrator who wouldn't have this defense and allowed others to have it.
12.18.2007 2:26pm
Alec:
Why are you guys jumping over PD? Everything he said is accurate, and people who support "traditional marriage" usually refer to how longstanding it is, etc. But marital rape did not exist until very recently. And sorry, Jim, but the laws were not operating under the assumptions you are. In addition to not covering marital rape, there were stringent perpetrator force and victim resistance requirements to prove rape. The law was not concerned as much with female victimization as it was with preventing sex outside of the marital bed. And traditionally, women were property. PD's comment is accurate and exposes advocates of "traditional marriage" for what they are: opponents of something as opposed to proponents of "traditional marriage," a nonexistent and morally distasteful concept.

As to the issue of statutory rape, I agree that it is not a strict liability offense in all jurisdictions (including federal). I highly recommend Moral Panic: Changing Concepts of the Child Molester in Modern America, by Philip Jenkins. I read it a couple months ago when I was trying to figure out what to write for an independent study and went with sentencing instead, but it is a fascinating account of our society's shifting attitudes on adult sexual relationships with adolescents and children. And, of course, our changing legal responses.
12.18.2007 2:46pm
autolykos:
"If you and your significant other have a few drinks and then have sex, legally that can be rape, whereas we would almost always agree that morally this isn't rape."

I don't think this is a true statement unless by "have a few drinks" you mean "have so many drinks that they're completely plastered and unable to maintain consciousness."

My college used to (maybe it still does) tell incoming males that, if a woman had had even a sip of alcohol, she lost the ability to consent. This obviously isn't the case, not only because the rule is intentionally overly broad, but because the rule is so blatantly unconstitutional that state actor would ever both to try and enforce it.
12.18.2007 3:04pm
Aultimer:

It would seem, even in certain states in the 1970s, SOMEone was able to be prosecuted. SOMEone had to turn an initially chaste girl into an unchaste one. So perhaps Bored2L is on to something. It's sort of a prisoner's dilemma. X defends himself by claiming the girl is unchaste and as evidence offers up her prior activity with Y.

I think the idea is that Y (and victim) would be 15 years old (X being 18+, or maybe 16+). In my state, Y hasn't committed a crime.
12.18.2007 3:08pm
jim:

And traditionally, women were property.

It was clearly articulated in antebellum american law that white women were citizens with certain civil, but not political, rights. The courts had plenty of opportunity to contemplate people as property, and they were quite clear about where women stood.

Yes, once upon a time woman were property, polygamy was fine, the levirate was practiced, woman consented to their husbands, and if you didn't scream for help loud enough for your neighbors to hear it wasn't rape.

But unless I am misreading PD, he's not talking about that, he's talking about mid-20th century practice. And as I said "I would need some convincing before I would accept that the point behind the law, relatively recently, was to condone or promote spousal rape."
12.18.2007 3:15pm
jim:

I don't think this is a true statement unless by "have a few drinks" you mean "have so many drinks that they're completely plastered and unable to maintain consciousness."


I concede that my information on this probably does arise from college pronouncements. And the top hits on google when I try to verify it are all in the .edu domain. If anyone knows for sure what the rule is, let me know. Obviously, though, at some point alcohol does call into question the concept of meaningful consent, and then you get back to the same questions.
12.18.2007 3:23pm
CEB:

And traditionally, women were property.

That is the ultimate legal urban legend--I would greatly appreciate it if Prof. Volokh would take it on
12.18.2007 3:27pm
Alec:
If the rape law required the state to prove lack of a marital relationship, what makes you think it wasn't condoned? Are you arguing that it either didn't exist or our society was unaware of its existence? If not, why wasn't it criminalized? Or are you saying that we do not condone things by failing to criminalize them, particularly when they involve forcing others to do something against their will? No one was ever arguing that the purpose of the rape laws was to PROMOTE marital rape. That is a clever but dishonest rewording of the debate. The point that PD was trying to make was that there was an entirely different theory of marriage in place at the time. Legislatures did not bother to criminalize it not because they were unaware of the possibility of forced sex in marriage but because the woman had no interest that needed to be considered; she implicitly consented to the sexual demands of her husband by being in the marriage. They were concerned about women being raped by men who were not their husbands. This is reflected in the force and resistance requirements; if a woman did not resist, yell out, etc., she was a fornicator and could be tried under a different statute, although I doubt that many prosecutors would be tempted to do so at the time you mentioned. But even then the point was not really about protecting her interests; a woman who fit the "resistance" profile the courts developed had proven her chastity. You do not get to evade the underlying theory of "traditional marriage" and just say you support one man, one woman because it is "traditional marriage." There's a lot more underlying "traditional marriage" that is barbaric by modern standards.

Frankly, it also shows in our age of consent laws. We were not always concerned with protecting children; progressive reforms are responsible for changes in the age of consent laws as well as child labor, etc. And the age of consent, at least marrying age, is insanely low in some states (Utah comes to mind, with 60 year-old polygamists having "consensual" sex with their 14 year old brides). I get it when you have staggered age of consent laws to protect the Romeos and Juliets of this world from prosecution, but the situation in some states is insane.
12.18.2007 3:34pm
Andrew Mertz (mail):
Without a "nearly unconscious" standard, when two drunk people have sex, who raped whom?
12.18.2007 3:59pm
Laura S.:
Alec,

I think you have the marriage exception all wrong. The point of the marriage exception is that a marital relationship clearly is a means to reach reasonable doubt as to whether consent was absent.

It doesn't require any notion of women being property. It does deny a particular legal remedy "rape conviction" to rapist husbands. Just like when a woman hits a man; it isn't 'assault' is goes into the officer's log book as responding to a 'domestic dispute'.

Indeed, the marriage rape-exception directly implicates societies 'marriage interest' as well. Its like a safe harbor provision: if you have sex with your wife then acquire legal immunities not generally available--ones which discourage sex outside of marriage because of the risk of false prosecution for rape.
12.18.2007 4:03pm
Joe Bingham (mail):
Who is this Laura S., how did she get to be so reasonable, and why haven't I noticed her before?

Props.
12.18.2007 4:21pm
Joe Bingham (mail):
Alec says: Why are you guys jumping over PD? Everything he said is accurate

PD said: So if you oppose 'modern changes' to 'traditional marriage,' you should support allowing a man to rape his wife.

I just wanted to clarify just how ludicrous Alec's statement is.
12.18.2007 4:25pm
A.:

Andrew Mertz:
Without a "nearly unconscious" standard, when two drunk people have sex, who raped whom?


Somebody's got to thrust, to put it bluntly. If neither party wants it, it won't happen. If both parties want it, it's not rape. If one party wants it and the other doesn't/can't, then it is. If both are too drunk to consent but neither is too drunk to thrust, and both want it but one reconsiders the next morning, then we have a very-rare bogeyman most often used to disregard and disparage real rape victims.
12.18.2007 4:35pm
hattio1:
A.,
Just out of curiousity how do you know that it's rare?
12.18.2007 5:39pm
Seamus (mail):

Without a "nearly unconscious" standard, when two drunk people have sex, who raped whom?



That's easy: the man is always guilty. If a woman gets drunk, she is no longer capable of giving valid consent. You might think that, by the same token, if a man gets drunk, he is no longer capable of the mens rea for statutory rape, but you'd be wrong.
12.18.2007 5:50pm
A.:
hattio1,
Entirely through hearsay--my girlfriend researches sexual assault in her work, and sometimes passes along this or that tidbit she's read in journal articles. If this is really a point of interest I can certainly ask her for some citations.

However, I fail to understand (my original word choice notwithstanding) why it matters if such events are rare or very rare; my point is that assertions to this effect are used to blame the victims and to ignore their allegations, and the incidence of the false claims, not of the true ones, is the relevant question. If you doubt that the false claims are common then I've got a bridge to sell you, not to mention quite a few fraternities.
12.18.2007 5:55pm
Elliot Reed (mail):
I think you have the marriage exception all wrong. The point of the marriage exception is that a marital relationship clearly is a means to reach reasonable doubt as to whether consent was absent.
Assuming a marital relationship is a means by which a factfinder could find such a reasonable doubt, this justifies a per se bar how? We aren't in the business of letting people off the hook for crimes as soon as the defendant comes up with some evidence to support their case.
12.18.2007 6:03pm
Elliot Reed (mail):
A.:: did you mean to say "if you doubt that false claims are rare"? You were claiming they're rare upthread . . .

Also, I have to wonder how on earth one goes about investigating the incidence of false claims of this type. How could a researcher possibly determine which claims were false and which were true in a remotely rigorous manner?
12.18.2007 6:12pm
eric (mail):
Elliot,

I think the only way to investigate it is to focus on demonstrably false claims, like the Duke Rape case.

That old quoted 2% figure has to be pure bullshit. The number is just too damn low to be credible.
12.18.2007 6:51pm
Toby:
THey certainly are not rare on a college campus. THe biggest cause of monring after rape is not waking up to see someone ugly, but waking up because someones gorlfriend/fiancee came in screeching. I have direct knowledge of both the just met in bed claiming rape by evening and of the fiancee claming rape for activities the prior weekend.

Good campus policing tends to caml the situation. Politicized campus policing does not. Being a Cad is not, by itself, a criminal offense, but it sure can give rise to rape charges...
12.18.2007 6:58pm
gasman (mail):
Restating, I think, what Seamus noted about men's abilities.

That's easy: the man is always guilty. If a woman gets drunk, she is no longer capable of giving valid consent. You might think that, by the same token, if a man gets drunk, he is no longer capable of the mens rea for statutory rape, but you'd be wrong.


While providing assitance with an organ harvest on a healthy (brain)dead organ donor I observed the patient to have a normal erection when the nurse was attempting to place a foley catheter in the urethra to the bladder. No brain function whatsoever; no cerebral blood flow, flat line EEG, no cranial nerve reflexes. But the penis was connected to the spinal cord, and the spinal cord was connected to the penis...
12.18.2007 7:00pm
hattio1:
A., and Eric,
Elliot nails it. The "studies" have to be essentially guesswork. You have those claiming that its easy to get a rape conviction and that false allegations often result in conviction. You have others claiming rapes occur without reporting often, and that real victims are accused of fabricating. Furthermore, that real victims can be accused of fabricating, and the rapist get an acquittal. How do you determine who's right? You can't just go on conviction rates, I think both sides would agree. Basically, there is no way to determine what the percentages are, whether or not its rare etc.
And Eric, the problem with focusing on verifiable cases of fabrication a la the Duke LaCrosse case is that verifiable cases are rare. But if you believe that no one has ever been convicted based on a false claim, I'll sell you the same bridge A is offering.
12.18.2007 8:33pm
SenatorX (mail):
Ok humor me please.

"While providing assitance with an organ harvest on a healthy (brain)dead organ donor..."

What is going on here? What organs? Don't you have to wait until they are dead to harvest some organs? Do you kill them? I saw that movie Turista and...is that you?!
12.18.2007 10:07pm
theobromophile (www):

What is going on here? What organs? Don't you have to wait until they are dead to harvest some organs? Do you kill them? I saw that movie Turista and...is that you?!

Babe, if you wait until they are entirely dead (no blood flow, cell death), then the organs are dead, too. You can't just drop them in water and watch them come to life, like sea monkeys.

Very few people die under the circumstances which allow for organ harvesting. You need brain death (although I would not be surprised if the brain stem were still active, hence the functional nerve endings) but some "life" in the body - it is kept alive by mechanical means while the doctors wait to find matches and wait for the physicians who treat the recipients to take the organs.

Ghastly, really.
12.19.2007 12:33am
theobromophile (www):
As an aside, statutory rape in California involves intercourse with anyone under the age of 18. (The crime is a misdemeanour if the perpetrator is not more than three years older than the minor; otherwise, it is a felony.) California does recognise the defence of reasonable belief that the victim was of age. Even more oddly, people under the age of 18 may be married (with parental permission and the permission of the court); from what I understand of the laws of the state, it is not statutory rape if it's your spouse.

Yes, for all of y'all wondering, if both are under the age of 18, both commit statutory rape.
12.19.2007 12:46am
SenatorX (mail):
Violating thebromophile, but understandable I guess. The sooner we are growing organs made from the recipients cells the better IMO.
12.19.2007 10:38am
Eugene Volokh (www):
Theobromophile: I should note that in California, reasonable mistake of age is a defense to the charge of statutory rape. See People v. Hernandez, 61 Cal. 2d 529 (1964).
12.19.2007 1:32pm
A.:
One methodology behind the rape studies is to ask the perpetrators. Very, very few will deny that intercourse occured. Then ask them about the details, and get diologues like
"So, what happened?"
"She was really into it at the party!"
"And when you got back to your room?"
"She just kinda lay there and didn't move."

Lots and lots of these guys just don't get what rape is, and don't understand that if the girl you were kissing at the party falls asleep before you start having sex, the sex is rape. But then, neither do lots of the people who blame the victims the next day.
12.19.2007 1:50pm
David Chesler (mail) (www):
Under modern theory, statutory rape is a crime not because the girl's father is going to have a harder time marrying off a non-virgin, but because by virtue of her age she can't give meaningful consent.

Under modern law, marriage is no longer a "license to rape" -- a wife may refuse to have sex with her husband, and if he forces himself on her it is criminal rape.

In some states, under at least some circumstances, people can get married at an age such that having sex with them would be statutory rape in at least some places. I think this might be the case in the same state for some of them. (That is, the age of consent in state X is 16, but 15-year-olds can marry.)

Why isn't having sex with one's child bride, who is too young to consent to the sex, statutory rape?

Related question: Warren Jeffs (the polygamist leader) was convicted this fall of being an accomplice to rape for coercing Elissa Wall to marry Allen Steed, and to have marital sex with him. (I can't tell if the marriage was a legally recognized civil union. Some sources say it was monogamous, others say he was already married.) Some sources say Allen used force; other sources say Warren convinced Elissa to compy. The former is troubling puzzling primarily because Allen doesn't appear to have been prosecuted Allen wasn't prosecuted until after he testified, or the day after Jeffs was convicted; the latter, that there was no force, is even more troubling because there was no rape. Under that theory, "Mama, I love him but I'm afraid of having sex even after we're married", "Honey, you have to have sex with him after you get married or the marriage will fail" is rape-as-an-accomplice by the mother of the fearful bride-to-be. This article discusses various nuances, particularly whether the husband is abuser or victim.

------------------

As for chastity, Thoughtful wrote
It would seem, even in certain states in the 1970s, SOMEone was able to be prosecuted. SOMEone had to turn an initially chaste girl into an unchaste one. So perhaps Bored2L is on to something. It's sort of a prisoner's dilemma. X defends himself by claiming the girl is unchaste and as evidence offers up her prior activity with Y. Y feels safe in supporting X's claim because he, too, met the girl when she was unchaste, with supporting evidence provided by Z. But Z is unwilling to testify, because he could be prosecuted since she was either chaste when he met her or he doesn't know any Z' who can support her unchaste state when Z met her. But without Z's testimony, Y is at risk, so won't testify for X. [OK, technically not a prisoner's dilemma situation; a game-theoretic situation.]

Can Z' argue that she wasn't chaste because she also slept with X, Y, and Z? Of course the argument could be made that she wouldn't have slept with X, Y, and Z if she were still a virgin. (I assume chastity = virginity. Might there be other evidence that someone was not a virgin at a particular time?) We might say it's not right to consider the "victim's" future since it hadn't happened when Z' committed the act; OTOH the calendar age might be determined by the alleged victim's current age, and the time elapsed between when the act occurred and now (that is, if she is 20 now, she was > 16 last year when it happened) and mathematically that is taking into account her future.
12.19.2007 2:13pm
David Chesler (mail) (www):
Lots and lots of these guys just don't get what rape is, and don't understand that if the girl you were kissing at the party falls asleep before you start having sex, the sex is rape.

Not always. If the man has a prior relationship with the woman, and she has expressed curiousity about sex while sleeping, and (go all the way) has indicated to the man that should the occasion arise he may have sex with her, morally and practically that is not rape.

Of course some will say that sex with someone who had a few drinks because she knows that she likes sex better when she's tipsy, who had those drinks with the explicit intention of having sex soon after, is rape. ("I'm not wearing any underwear" is often a come-on, not a statement about hygeine, and "I get horny when I'm drunk/buzzed like this" is also a come-on.)

What about domestic abuse? Apparently modern theory, and mandatory arrest policies, hold that the spouse can't consent to being hit, so the other spouse's touch must have been unwanted, and thus the other spouse has committed criminal battery. (For the moment, forget about in-the-bedroom spanking, this is about bruises after an argument where the bruised party nevertheless does not want the bruiser arrested.) If the bruised spouse's consent means nothing for the battery, why does it matter for the marital relations, which by definition must have been rape in every single instance? (I've never hit my partner, but angry sex and make-up sex are facets of relationships.)
12.19.2007 2:24pm
theobromophile (www):
EV - thank you for providing the cite. I think I mentioned Ca.'s "reasonable belief" (lines 4 &5).

David Chesler - about your last paragraph. I think it's quite reasonable to say that a person cannot consent to being assaulted (much as one cannot consent to being a slave), but one can obviously consent to any number of other things, such as sex. You can consent to give money to charity, but you can also have money stolen from you; that doesn't mean that every transfer of money between yourself and charity is either automatically charitable or automatically theft.
12.19.2007 5:53pm
hattio1:
A.,
Do you have any citations for that methodology, or for the idea that many perpetrators don't deny having intercourse? I'm not even going to ask if you have a citation for your hypothetical conversation.
12.19.2007 8:40pm
Seamus (mail):
I think it's quite reasonable to say that a person cannot consent to being assaulted

So boxing matches are all illegal, I guess.
12.20.2007 10:22am
Eugene Volokh (www):
theobromophile: D'oh! I completely misread your comment -- VERY sorry about that. Did I say, D'oh!? Well, I'll say it again: D'oh!
12.21.2007 11:32am