Statutory Rape Issues in USA

USA

Background

Currently, all States have laws that prohibit sexual intercourse with persons under a certain age. Although commonly referred to as “statutory rape” laws, the term is not usually found in criminal statutes. Rape, sexual assault, and unlawful sexual intercourse are some of the more commonly used terms. By whatever name, these laws have been the focus of recent legislative interest. In the last few years, more than 20 States have considered proposals to amend these laws.

In 1997, under a cooperative agreement with the Office for Victims of Crime of the U.S. Department of Justice, the American Bar Association (ABA) Center on Children and the Law surveyed all States regarding statutory rape legislation they had considered within the last few years—from 1995 to early 1997.

The States enacted certain amendments between January 1995 and January 1997:

■ Raising the age of the minor who is subject to protection by the law. North Carolina and Pennsylvania raised the age of the minor—up to 16 years—who is subject to protection
under the criminal unlawful sex laws. North Carolina did so as part of amendments that created different offenses based on the age of the minor and the age gap between the minor and the defendant. Under the new statute, sex with 13- to 15-year-olds is now a crime.

■ Age gaps. Along with raising the age of the minor, North Carolina and Pennsylvania also imposed age gaps. If the minor is above a certain age, a crime is committed only
if the defendant is a specified number of years older than the minor (5 years in North Carolina and 4 years in Pennsylvania).

■ Impregnation of a minor as a separate offense. Florida passed several provisions regarding unlawful sex with minors. Impregnation of a minor is now a separate offense,
and defendants may be liable for child support and related medical expenses. If paternity is established in cases involving defendants 24 years or older, child support must be paid.

■ Targeting much older defendants. Two States increased the possible sentence when the defendant is significantly older than the minor. Delaware increased the possible sentence when the defendant is 10 or more years older than a minor under 16, and Georgia increased the sentence to a mandatory 10 years when the defendant is 21 years old or older.

Florida rewrote one of its laws so that persons 24 or older are prohibited from having sex with 16- and 17-year-olds.

■ Possibility of civil penalties. California has authorized civil penalties ranging from $2,000 to $25,000 for this crime. The amount depends upon the age of the defendant and the age gap between the defendant and the minor. Moneys collected will be used to reimburse the costs of prosecution, with the remainder placed in an Underage Pregnancy Prevention Fund.

■ Encouraging reporting. Tennessee passed a bill encouraging, but not requiring, health care providers to report statutory rape, defined in Tennessee as sexual assault on minors 13 to 15 years old. Reporting is already mandated for children under 13. Florida passed legislation making sex with children under 16 child abuse if the offender is 21 or older.

Below is proposed legislation considered by 13 other State legislatures that was not enacted during their most recently completed session.

■ Expanded scope of laws/raising age of protected minor. Indiana and Washington considered providing criminal penalties for men 21 years old and older who have sex with a minor who is either 16 or 17 years of age, respectively. Washington would also have required the defendant to be in a position of authority. Both proposals included restitution. Hawaii, Mississippi, and Utah considered raising the age of the minor protected under statutory rape laws. Utah would have raised the age to 18; Mississippi would have raised it from 14 to 16 years of age. Hawaii considered several proposals on raising the age, which is now the lowest in the
country at 14 years.

■ Prosecution grants, penalties for parents’ failure to seek prosecution. New York and Connecticut considered authorizing grant programs for statutory rape prosecution.
Connecticut considered imposing criminal penalties against parents who fail to seek prosecution of a man engaged in a sexual relationship with their daughter if she was under 16 and knew the offender.

■ Mandatory reporting. Tennessee and Virginia considered legislation requiring the report of statutory rape under mandatory child abuse reporting laws.

■ Penalties associated with pregnancy. Illinois and Oregon considered increasing the penalties for statutory rape if a pregnancy results.

■ Mandatory minimum sentence. Massachusetts considered a 1-year mandatory minimum sentence if the defendant is 18 years old or if there is a 5-year age difference between the minor and the offender.

■ Exemption to precondition for benefit eligibility. New Hampshire considered adding statutory rape as an exemption to establishing paternity as a precondition to eligibility
for State public assistance benefits

Context and Questions

Several basic questions permeate the discussion of statutory rape laws. A clear understanding of these questions will help put proposed legislation in context and focus discussion of the legislation. We encourage legislators and their staff to consider
the following:

  1. What is the purpose of statutory rape laws?
  2. What does criminal prosecution mean?
  3. Are the purposes furthered through the criminal laws?
  4. What other State efforts and policies need to be considered?

■ What is the purpose of statutory rape laws? Laws making sex with minors a crime and the proposed changes to these laws may have more than one purpose. Generally, the more specific a State can be in outlining a law’s purpose or purposes, the better. Knowing the specifics will further discussion and help the State develop and pass laws that accurately address what the State determines to be prosecutable.

■ What does criminal prosecution mean? Sometimes multiple purposes in laws lead to different results. For example, if laws are aimed at “predatory, exploitative” behavior, it is critical to define what “predatory and exploitative” behavior is. If laws are designed to encourage responsibility by discussing marriage and paternity, criminal prosecution may be in order.

Reviewing the laws and practices in the particular State will educate legislators about what outcomes may be expected from criminal prosecution for statutory rape. It may mean one or more of the following outcomes: conviction of a felony, conviction of a misdemeanor, incarceration, probation, child support, sex offender therapy, civil penalties, and registration as a sex offender. Further, legislators will understand the circumstances that must be met for an offender to receive this charge and any conditions.

■ Are the purposes furthered through the criminal laws? In the recent ABA survey of 21 States that were considering proposed legislation, a number of different motivations were observed on the part of State legislators, including:

● General intent to protect minors from sexual intercourse.
● Desire to protect minors below a certain age from predatory, exploitative sexual relationships—for example, with much older partners.
● Prevention and/or reduction of the incidence of teen pregnancy.
● Reduction of the number of young mothers on welfare.
● Responsibility and accountability in sexuality and parenting.

A question often considered is whether the law’s purposes are furthered by criminal prosecution. With purposes clearly in mind, any proposed change to the law can be better evaluated. This evaluation is best aided by reviewing research studies, researching local- and State-level statistical information, holding hearings to obtain assessments by criminal justice and agency professionals, and conferring with legislative staff in other States. Such an evaluation should help legislators determine whether the impact of the proposed legislation is likely to further the law’s purposes.

For example, if a proposal is aimed at reducing teen pregnancy and/or reducing reliance on welfare, examination of the State’s statistics may clarify whether the proposal is likely to have the desired impact. While national statistics may suggest an answer, State or local evidence is critical. In North Carolina, statistics presented by the North Carolina Organization for Women suggested that increased enforcement of the statutory rape laws would not reduce teen pregnancy in that State.

■ What other State efforts and policies need to be considered? States and localities may have a variety of efforts under way to reduce teen pregnancy. They may work with adolescents on sexuality education, which may or may not be enhanced by new legislation. For example, the ABA survey revealed that some States are struggling to balance the desire to deter exploitation through statutory rape laws with the concern that focusing on prosecution will result in teens failing to seek appropriate health care, including contraceptives and prenatal care. Some States find that this struggle may occur
when States consider raising the age of the minor subject for protection under statutory rape laws.

Efforts to increase reporting of statutory rape have also resulted in a struggle to balance conflicting concerns. Some States have reached consensus by defining the scope of these
laws to focus prosecution efforts on cases perceived as exploitative. For example, a recent Florida statute prohibits persons 24 or over from sexual activity with 16- and 17-year-olds.

This effectively requires at least a 7-year age gap for these older minors. Florida’s legislators are comfortable defining exploitation as a large age gap.

Issues

Raising the Age of Consent and Instituting Defendant Age or Other Requirements To Limit the Scope of the Laws

■ The issue. Raising the age of consent by using the criminal laws to protect minors up to age 16, 17, or 18 years presents a number of issues. Major questions include how old the
defendant must be and how much of an age difference exists between the defendant and the minor.

■ Discussion. The modern trend has been to raise the age of the minor protected under criminal statutory rape laws. Currently, the highest ages protected range from 14 to 18, with more than 90 percent ending protection at age 16, 17, or 18 years. A recent ABA survey of State legislative proposals indicates that 12 of 21 States considered raising the age of the minor protected under statutory rape laws. A number of these States identified a challenge when they raised the age of consent—how to avoid making consensual “peer sex” among teenagers a criminal offense. For this reason, a number of States have considered or required either a minimum age for the defendant or an age difference between the minor and the defendant. For example, North Carolina’s recently enacted legislation creates a new class of statutory rape to cover 13-, 14-, and 15-year-olds if the defendant is 5 or more years older than the minor.

Currently, 23 States have age differentials for at least one of their statutory rape offenses. Twenty-six States have specified an age minimum for the defendant under at least one statutory rape offense. It is indicated that all States that considered raising the age of the minor protected also considered age differentials between the minor and the defendant and/or age minimums for the defendant. Moreover, in 6 of the 21 States interviewed in the ABA survey, the determination of an appropriate age differential set off considerable debate. Under current laws, depending upon the State, the age differential may be set at from 2 to 6 years older than the minor. Most often, however, it is set at 3 or 4 years. In the survey, the age differentials reflected these variations.

Another category of persons some States choose not to penalize can be found in the marriage defense/exclusion. Some statutes specify that marriage is a defense. Although, generally, the marriage has to have occurred before the sexual penetration takes place, in one State it will effectively “cure” the crime if it occurs after the fact. In addition, some
States only permit this defense if the minor is at least a certain age. Moreover, in a number of States, the exclusion is stated not as a defense but is included in defining the crime, such as sexual penetration by a person who is not the spouse of the minor.

The survey of issues in recent legislation and proposals indicates that some States are targeting “older” offenders. In Florida, for example, the crime of unlawful sexual activity
with certain minors applies to sexual activity between 16-and 17-year-olds and persons 24 or older. Absent other conditions, such as being in a position of familial or custodial authority, consensual sex with these minors by those 18 or older does not fall within a crime. Viewed another way, the law essentially imposes a 7- or 8-year age gap when 16- and 17-year-olds are involved. As noted in the survey, other States have expressed similar concerns about older offenders, viewing these relationships as “exploitative.” More often, however, this concern has arisen over the possible penalty to be imposed.

■ Questions to consider regarding legislation on raising the age of consent:

  1. Why is the legislation being introduced? (See above discussion of purpose.)
  2. What are the current laws and are they being implemented?

  3. To what age should the criminal laws be used to protect a minor from “voluntary” sexual intercourse?

  4. Against whom should the criminal laws be used to protect a minor from sexual intercourse? It may be useful to break this question down further: Who should be
    penalized? Who should the laws target?

Available Penalties and Factors Warranting Increased Sanctions

■ The issue. A variety of sanctions, penalties, and treatment may be associated with statutory rape, including prison or jail, child support, fines, counseling, and treatment services.

Modern statutory rape laws usually reflect multilevel statutory schemes with different penalties set forth depending upon the age of the minor. In addition, laws may provide for increased penalties if the defendant is much older than the minor, if pregnancy results, or under other circumstances.

■ Discussion. Sanctions or penalties set forth in State statutes typically include possible or mandatory prison or jail time, child support, fines, and, at least in California, civil penalties. In addition, restitution, counseling, therapy, and other treatment services may be ordered.

Changes to the possible sentences have recently been considered by a number of States. At least 10 States responding to the ABA survey indicated that they had considered raising or lengthening the penalty for statutory rape. Although most of these States considered raising the possible sentence, some considered legislation that raised the penalty for one level of the crime, but lowered it for another level.

For example, Oregon recently considered decreasing the penalty for rape in the third degree (sex with a minor under 16 years of age; a class C felony) but increasing the penalty for contributing to the sexual delinquency of a minor if a pregnancy results. Further, as discussed in the next section, other States considered or established mandatory minimum sentences when the defendant and/or minor met certain age requirements. For example, in Georgia the minimum penalty is 10 to 20 years (increased from 1 to 20 years) when the defendant has sex with a minor under the age of 16.

Child support

Some States authorize an order for child support as part of their statutory rape statute. In addition, as noted below in the Pregnancy: Sentencing and child support section, courts in a number of States are authorized to award child support through other, more general authority.

Fines/civil penalties

Many statutes authorize imposing fines up to a certain amount. In addition, California recently adopted a provision that allows the award of civil penalties in statutory rape cases. The possible amount depends upon the age differential between the offender and the minor; the range is from $2,000 (age gap of 2 years) to $25,000 (minor under 16 and offender over 21). The district attorney is authorized to bring actions to recover the civil penalties. An amount equal to the costs of pursuing the action is to be deposited with the treasurer of the county in which the judgment was entered. The remainder goes to a State Underage Pregnancy Prevention Fund.

Sex offender registration

A Federal law passed in 1994 ties Federal funds to State passage of sex offender registration laws. This law has been amended several times, most recently in 1997. All States currently have sex offender registration laws. The Federal law requires a minimum 10-year registration for a person convicted of “a criminal offense against a victim who is a minor.” A series of clauses in the Federal law further defines “a criminal offense against a victim who is a minor.” State statutory rape offenses would appear to be covered under two of the clauses set forth in the Federal law. Thus, it appears that statutory rape offenses should be covered under State sex offender registration laws to comply with Federal law.

Age of the minor and/or age of the offender

By statute, a number of States have determined that the age of the minor and/or the age of the defendant should be a factor in sentencing. As noted previously, the modern trend is toward multilevel statutes, with increased penalties associated with sexual intercourse with younger minors. Moreover, as noted above, States in recent years increasingly believe “older” defendants warrant increased or mandatory minimum penalties. For example, the survey revealed the following:

● Delaware raised the penalty from 0–10 years to 2–20 years when the minor is under 16 years of age and the offender is 10 or more years older or when the minor is under age 14 and the offender is at least 19 years old.

● In Georgia, the minimum penalty is now 10–20 years, up from 1–20 years, when an offender at least 21 years old has sex with someone under 16 years of age.

● A bill proposed in Oregon in 1997 would increase the penalty for rape in the third degree (minor under 16 years) when the defendant is at least 21 years of age. The crime would then become a class B felony, punishable by up to 10 years and/or by a fine of $200,000.

Pregnancy: Sentencing and child support. As the ABA survey indicates, a number of States considered legislation that focused on pregnancy. These proposals reflect different, and possibly conflicting, penalties. When pregnancy results, sentencing can include longer prison time and more severe financial responsibility through restitution and child support.

● Illinois proposed and Oregon passed legislation that raises the penalty if a pregnancy results by raising the felony up another level.

● Eight other States indicated that pregnancy was considered an aggravating factor at sentencing, generally not a criterion written into the statute, but included as part of
the sentencing guidelines.

● Several States permit the court to order restitution for costs associated with the pregnancy dating back to the birth of the child. Some expressed concern that this might permit offenders who can pay to go free, while poor offenders who cannot pay are sent to jail.

Use of drugs and/or alcohol. Some States have considered or passed legislation increasing the criminal penalties for sex with minors when drugs or alcohol are involved. Florida, for example, considered increasing the penalty for sex with minors if the offense was committed while the minor was under the influence of drugs or alcohol.

■ Questions to consider regarding legislation on penalties:

  1. What is the purpose of the penalty provision? Is it consistent with the avowed purpose(s) of the statutory rape legislation?
  • Does State or local statistical information provided by service providers, law enforcement, and prosecutors indicate the legislation is warranted?

  • Would more vigorous enforcement of existing laws reach the desired result of the proposed legislation?

  • Are there other means, such as education, that can be used to reach the desired goal, either to supplement the proposed legislation or to replace it?


  • Reporting

    ■ The issue. All States have laws that require certain classes of professions, such as school or medical personnel, to report child abuse and neglect. The question of whether statutory rape laws are included within these mandatory reporting laws is unclear in many States. More research on this issue is needed.

    ■ Discussion. The ABA survey revealed that in recent years at least four States considered making the reporting of statutory rape mandatory by redefining child abuse to include
    statutory rape.5 Some States have done so, usually with the limitation that the minor is below a certain age, such as 15 years of age in Florida. This change requires those who are mandatory reporters of child abuse to report statutory rape.

    As previously noted, States may be concerned that mandatory reporting requirements will discourage minors from seeking or remaining in health and mental health care treatment. Delaware approached the reporting issue differently. Rather than redefining child abuse in the law, a “memorandum of understanding”—an informal agreement among law enforcement, State agencies, and schools—was adopted stating that statutory rape cases are considered child abuse, and the child abuse reporting mechanisms are to be used to their fullest extent to report it.

    Questions to consider regarding reporting laws:

    1. Does the State child abuse reporting law include statutory rape crimes? Does it cover all minors or only those
      up to a certain age? Does it only cover actions of a parent or someone in a position of trust or authority?
    2. Has the legislature obtained input from health and mental health care providers on such issues as confidentiality and the potential impact that reporting may have on
      delivery of needed services to victims of statutory rape?

    Special Prosecution Units

    ■ The issue. Some States are not actually focusing on revising their statutory rape laws, but rather are channeling funds into creating special prosecution units or are including these crimes in their child sex assault units.

    ■ Discussion. The ABA survey revealed that at least seven of the States interviewed considered creating special units or task forces to prosecute statutory rape offenses. According to these States, these units encourage prosecutors to take statutory rape cases seriously—even when faced with an unwilling victim. Since some prosecutors typically focus efforts on prosecuting cases with the highest probability of success, statutory rape cases are often low priority because prosecutors anticipate unwilling witnesses or unsympathetic jurors. Some States find that creating specialized units counters this low priority status. In addition, States find that developing specialized units creates certain efficiencies— prosecutors become more familiar with issues in the cases, develop expertise with the issues, and begin to establish working relationships with others working with teens.

    ■ Questions to consider regarding special prosecution units:

    1. Is legislation necessary to create or to fund a special prosecutor/unit for these cases, or can already existing specialized child abuse units take on these cases?
    2. Do State and local prosecutors favor the specialized units or do they have another proposal on how to increase enforcement?
    3. Have States that have implemented specialized units met with continued success in prosecuting these cases?

    Conclusion

    Each State legislature must determine the need for amendments to statutes or development of new legislation. However, legislators and their aides may need guidance as they consider the questions of exactly what kind of laws to pass and whether current laws require adjustment to reflect new realities. The questions and issues posed here  are intended to support thorough discussion and consideration of the issues surrounding statutory rape legislation.

    Legislators should also review existing laws, research State and local statistics, review other research studies, and confer with other State legislative staff members. Hearings should be held to assess the impact of the current state of enforcement as well as the potential impact of enforcing any new or amended laws.


    Notes

    1. The U.S. Congress included provisions on statutory rape in the Welfare Reform Act (Personal Responsibility and Work Opportunity Reconciliation Act of 1996, P.L. 104–193, August 1996), which notes a need for the Federal Government to study the issue.
    2. Connecticut, Hawaii, Illinois, Indiana, Massachusetts, Mississippi, New Hampshire, New York, Oregon, Tennessee, Utah, Virginia, and Washington.
    3. California, Delaware, Georgia, Hawaii, Illinois, Indiana, North Carolina, Oregon, Utah, and Washington.
    4. California, Colorado, Delaware, Florida, Illinois, Indiana, Oregon, and Washington.
    5. Delaware, Florida, Oregon, and Tennessee.
    6. California, Colorado, Connecticut, Delaware, Florida, New York, and Utah.

    Source: Produced and Modified from A handbook prepared by the American Bar Association Center on Children and the Law under grant number 97–VF–GX–K008, awarded by the Office for Victims of Crime, Office of Justice Programs, U.S.
    Department of Justice , February 2000.