The Curmudgeonly Clerk responds (see his post for various links):
As regular readers know, I have done a fair amount of blogging about statutory rape laws over the course of the last year or so, and I have come to advocate what is essentially a descriptive approach to the law of statutory rape. That is, I think that the age of consent ought to correspond to teenage behavioral norms rather than attempting to prescribe them. To set the law up in this area in any other fashion basically criminalizes otherwise consensual sexual behavior that is not statistically aberrant.
For example, an Alan Guttmacher Institute paper indicates the following percentages among teenage females (where the % indicates sexual intercourse):
Age 15: 24%
Age 16: 39%
Age 17: 52%
Age 18: 65%
The percentages for teenage males are not dissimilar. But I assume that the female percentages are the ones that really matter in this debate, as statutory rape prosecutions most often involve female victims. Likewise, concerns about the poor judgment of teens and the possibility of adults preying on them always seem to be primarily directed towards female teens.
Of course, even from the foregoing data, one might dispute what age/percentage correlation is sufficiently high to serve as the basis for the age of consent. It seems to me though that rather large numbers of teens are engaging in sexual intercourse by the ages of 16 and 17. And, it’s important to remember that the foregoing statistics apply solely to “sexual intercourse.” If other sexual activities are accounted for, those percentages may rise significantly.
Admittedly, this descriptive approach may run into more difficulty in serving as a basis for “Romeo and Juliet” provisions that typically exist within statutory rape laws (i.e., the provisions that provide that, even when one of the participants has not reached the age of consent, there is no rape so long as the other participant is within a certain range of years). However, there is data on this as well. The aforementioned Guttmacher study reports that:
Nearly two-thirds (64%) of sexually active 15-17-year-old women have partners who are within two years of their age; 29% have sexual partners who are 3-5 years older, and 7% have partners who are six or more years older.
So, one can make a good case, I think, for fairly narrow “Romeo and Juliet” provisions, particularly if one is contemplating a lower age of consent. No one, I suspect, has a problem with prosecutions of the sort detailed in this Houston Chronicle article. However, a narrow age-range for “Romeo and Juliet” provisions does produce some questionable prosecutions with unexpected frequency (e.g., cases involving two teens). Though even cases involving only teenage participants are themselves not easily characterized on occasion.
Personally, I am less and less persuaded by prophylactic arguments directed at teenage wisdom. Increasingly, in the criminal justice system, we are willing to attribute a high degree of sophistication and culpability to minors (i.e., treating juveniles as adults). Statutory rape laws head in the exact opposite direction. I find it somewhat difficult to reconcile the two trends. Others hve offered additional reasons for questioning the paternalism that lies behind statutory rape laws.
The Guttmacher study does admittedly provide statistics that might be are cause for concern regarding pregancy and STDs among teens, two oft-cited rationales for enforcing statutory rape laws. However, my hunch is that concerns about pregnancy and disease can be better addressed via sex education rather than through a legal prohibition that teens themselves already apparently disregard in large numbers.
Interesting; as I mentioned, I don’t endorse any of the items I post, but this seems detailed, thought-through, and worth considering.
But to what extent should the law track practice? Say there are a lot fewer 30-year-olds having sex with 16-year-olds than 18-year-olds having sex with 16-year-olds. Is that by itself that much of a reason for treating the 30-year-old and the 18-year-old differently? (Just questions that I thought might inform reader’s thoughts, or future submissions; please don’t respond specifically to those questions, except in the context of a broader post.)
I’ll post one or two more items on this today, and save others for tomorrow and next week.
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