Child Abuse, Sex Crimes Statutory Rape Law and the Age of Consent

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  1. The term “statutory rape” refers to sexual relations with a minor who is under the legal “age of consent.” An act of force is not necessary, only that the act meets all the elements defined by statute. Under the law, young persons below a certain age are not able to give their consent. As a result, a violation of the statutory rape law may occur even if the minor insists that he or she was a willing participant in a sexual act.

    Statutory Rape: Traditionally a Strict Liability Crime

    The majority of criminal offenses require two elements in order for a person to be found guilty of a crime. The defendant must have both (i) had an awareness or intention to commit a crime ("mens rea") and (ii) have actually committed a criminal act ("actus reus"). Statutory rape law has traditionally been considered a “strict liability” crime, which means the intent or awareness of the offender doesn’t matter. If the sexual act with a minor below the legal age of consent took place, the older partner is guilty of statutory rape. It's the same as unintentionally driving faster than the speed limit - only the act portion is relevant to determining guilt. As opposed to a crime such as forcible rape, a statutory rape offense occurs even between willing participants. So long as the parties engaged in the sexual conduct and were of the age set forth by law, a statutory rape crime occurs.

    What happens if the victim provided a fake ID or driver’s license and appeared to be of legal age? Some states provide for a limited defense when the older partner honestly believed that the victim was of or above the age of consent. This defense most others are not available when the victim is very young, usually below 12-14 years of age. In such instances, the act is usually considered a first degree felony crime and frequently referred to as the sexual assault of a minor.

    Age of Consent by State Law

    Federal law generally covers exploitation of minors and sexual abuse crimes. But statutory rape is a criminal offense that is typically covered more comprehensively under state law. The definition of sex crimes involving minors and related punishment is not uniform across the United States. The following represents the legal age of consent by state (generally and without addressing exceptions and specific circumstances discussed below) at the time this article was written:

    Age of Consent 16 Years Old

    Alabama, Alaska, Arkansas, Connecticut, District of Columbia, Georgia, Hawaii, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Montana, Nebraska, Nevada, New Hampshire, New Jersey, North Carolina, Ohio, Oklahoma, Pennsylvania (16 for sexual assault but 18 for corruption of a minor) Rhode Island, South Carolina, South Dakota, Vermont, Washington, West Virginia.

    Age of Consent 17 Years Old

    Colorado, Illinois, Louisiana, Missouri, New Mexico, New York, Texas, Wyoming

    Age of Consent 18 Years Old

    Arizona, California, Delaware, Florida, Idaho, North Dakota, Oregon, Tennessee, Utah, Virginia, Wisconsin

    Some states provide more protective laws concerning females. The age of consent may also be set differently based upon whether penetration occurs.

    Criminal Charges and Penalties

    Statutory rape offenses will vary in terms of severity. They can be classified as a misdemeanor or felony crimes. The primary factors used to determine the level of the offense and the severity of the punishment are (1) the victim’s age; and (2) the difference in age between the victim and the offender. Secondary factors will include the offender’s criminal record, prior sex offenses and their specific circumstances, such as those involving the presence of alcohol, drugs and pregnancy.

    State laws will vary with regard to criminal charges and penalties for statutory rape. As stated earlier, a sexual act involving a child less than 12-14 years of age will typically constitute a felony crime. The law is not as consistent between states when the victim is older. Some have enacted statutes providing for higher level offenses with harsher penalties when (i) the age gap between the offender and the victim is significant; and (ii) when the sexual offender is an adult or over age 21. Punishment will range based upon the level of the offense. Sentencing can include a fine, probation and serving time in prison. Treatment programs may also be imposed. In many states, a person who is guilty of statutory rape crime will be required to register as a sex offender. The National Sex Offender Public Website, which is run by the U.S. Department of Justice, is a database of sex offenders which includes each state in the United States.

    Sexual Relations Between Minors Below the Age of Consent

    Some states make a distinction when both participants were willing and either (i) both below the legal age of consent or (ii) in close proximity of age. These “Romeo and Juliet laws” for young lovers vary between the states when available. In some jurisdictions these statutes may act as a defense to a statutory rape charge or result in a lower, misdemeanor charge. In others, Romeo and Juliet laws may reduce the severity of the punishment for a conviction. Leniency may also include the imposition of a fine, probation, being able to be removed from the sexual offender registry roll after a certain period of time or even not having to register as a sex offender at all.

    Reporting Statutory Rape Crimes

    In general, the law does not impose upon the average person a requirement to report a crime or to assist a victim. But some states impose a mandatory reporting requirement under special circumstances. For example, California Penal Code §§ 11166 and 11165.7 require the following to report statutory rape crimes: school teachers, guidance counselors, mental health professionals, medical and hospital staff, public employees, mental health professionals and members of the clergy. Most states require school teachers and administrative staff, law enforcement and correctional officers, child care providers and
    Criminal Law & Procedure:
    Criminal Charges - Sex Crimes
    Criminal Charges:
    Rape

    Michael M. Wechsler

    Michael M. Wechsler
    Michael M. Wechsler is an experienced attorney, founder of TheLaw.com and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at Zedge.net and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.

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