Rape: Legal Aspects

Ever since the sixteenth century, intercourse, though fully consensual, has been classified as rape when the woman is under a specified age of consent. The earliest statute set the age of consent at ten, but modern American statutes typically set the age of consent at sixteen or eighteen.

Four features of traditional statutory rape law are contestible. The first is the refusal to require mens rea. No state requires proof that the defendant was aware of the possibility that his partner was underage. A few states permit a defense when a defendant's mistake was reasonable, but most jurisdictions treat this as a matter of strict liability. Thus, a defendant can be convicted even when he could not have known that his partner was underage, and courts often exclude as irrelevant any evidence offered to prove that it was reasonable for the defendant to think his partner was older.

Second, statutory rape laws typically apply only when the underage person is female; they afford no protection against the seduction of an underage male. In Michael M. v. Superior Court, (450 U.S. 464 (1981)), the Supreme Court upheld this discrepancy on the ground that such laws serve to deter conduct that can result in teen pregnancy, and "it is the female exclusively who can become pregnant" (p. 467). Even if the discrepancy is constitutionally permissible, however, the Court's point does not show that prosecution is an effective way to discourage teen pregnancy or, conversely, that the law should not also be concerned to discourage premature sexual activity between adults and young boys.

Third, if the law seeks to deter acts that can result in teen pregnancy, what is the justification for punishing only the male participant in those acts? The Court in Michael M. viewed the risk of pregnancy as an equivalent deterrent penalty for the female and said that punishing her would interfere with effective enforcement because females would then be less likely to report the offense.

Fourth, statutory rape laws are crude tools for preventing exploitation of minors, because they are typically triggered whenever the female is underage, even if the male is younger. Thus, if a seventeen-year-old girl seduces a thirteen-year-old boy, she would commit no offense, and he would be guilty of statutory rape.

A number of state statutes address these concerns. Though the traditional statutory structure remains in effect in most states, a minority now set two ages of consent. Sexual intercourse is made criminal for the older participant whenever the younger one (male or female) is under the first age level, usually thirteen or fourteen; intercourse is also made an offense when the younger participant is over the first age level but less than sixteen (or eighteen), provided that he or she is more than four years younger than the defendant. This approach avoids some of the anomalies of traditional statutory rape laws, while providing a means to protect boys and girls equally from exploitation and premature exposure to sexual activity.