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. The ABA survey 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 ABA 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.³ 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.⁴
    
    
  • 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?
     
     
  2. Does State or local statistical information provided by service providers, law enforcement, and prosecutors indicate the legislation is warranted?
     
     
  3. Would more vigorous enforcement of existing laws reach the desired result of the proposed legislation?
     
     
  4. 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.⁶ 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?