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
- 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 consenthow 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 Carolinas 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:
- Why is the legislation being introduced? (See above
discussion of purpose.)
- What are the current laws and are they being implemented?
- To what age should the criminal laws be used to
protect a minor from voluntary sexual intercourse?
- 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
- 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
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 010 years
to 220 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 1020
years, up from 120 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
- 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:
- What is the purpose of the penalty provision?
Is it consistent with the avowed purpose(s) of the statutory rape
- 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?
- 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
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 understandingan informal agreement among law enforcement,
State agencies, and schoolswas 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:
- 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?
- 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 seriouslyeven 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 efficienciesprosecutors
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
- 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?
- Do State and local prosecutors favor the specialized
units or do they have another proposal on how to increase enforcement?
- Have States that have implemented specialized units
met with continued success in prosecuting these cases?