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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:
- What is the purpose of statutory rape laws?
- What does criminal prosecution mean?
- Are the purposes furthered through the criminal
laws?
- 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 laws 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 relationshipsfor 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 laws
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 laws purposes.
For example, if a proposal is aimed at reducing teen
pregnancy and/or reducing reliance on welfare, examination of the States
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. Floridas legislators are comfortable
defining exploitation as a large age gap.
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