Statutory rape
Statutory rape is a term used primarily in some jurisdictions, including the United States, to describe nonforcible sexual activity in which one of the individuals is below the age of consent, the age required to legally consent to the activity. 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. 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.
Terminology
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, carnal knowledge of a minor, sexual battery, 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. Sexual relations with a prepubescent child is typically treated as a more serious crime.Age of consent
In many jurisdictions, the age of consent is interpreted to mean mental or functional age. As a result, victims can be of any chronological age if their mental age makes them unable to consent to a sexual act.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. Laws vary in their definitions of statutory rape.
Rationale of statutory rape laws
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.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.
Another argument presented in defence of statutory rape laws relates to the difficulty in prosecuting rape 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.
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. 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.
Historically, a man could defend himself against statutory rape charges by proving that his victim was already sexually experienced prior to their encounter. A requirement that the victim be "of previously chaste character" remained in effect in some U.S. states until as late as the 1990s.
Sex differences in statutory rape
Female on male statutory rape
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. In 2005, the Office of Juvenile Justice and Delinquency Prevention estimated that 5% 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.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.
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. 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. 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.
Same-sex statutory rape
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. The Kansas law was successfully challenged as being in conflict with the U.S. Supreme Court rulings Lawrence v. Texas and Romer v. Evans. The Lawrence precedent did not directly address equal protection, but its application in the case of State v. Limon invalidated age of consent laws that discriminate based on sexual orientation in Kansas.Specific laws depending on countries
Denmark
The law reads in Danish:
§ 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:
§ 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.
Italy
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.The Netherlands
- Article 244
- Article 245
Note on marriage;
- Article 245, dealing with sex with persons between 12 and 16 years, only applies outside of marriage, however a marriage with someone under 16 requires authorisation from the minister of justice, which can only be obtained if there are "compelling reasons" for such a marriage.
- Sexual penetration is not only sexual intercourse. The object does not even necessarily have to be a penis or another body part. Giving cunnilingus, receiving fellatio and active French kissing can be considered rape as well.
- A fine is seldom given to a case of severe crimes, such as statutory rape. In nearly all cases the committer is condemned to prison.
- Fines are divided into categories. The higher number the category is, the higher is the fine. The maximum fine of the fifth category is €83,000.
- "Consent" of the minor and the use or absence of violence is not a criterion. If the other is minor, it is statutory rape. The maximum punishment depends on whether the victim is younger than 12 years or older than 12 years.