Sex Offenses: Children

All modern statutes defining child sex crimes contain two essential elements: the sexual conduct at issue and the age of the child. Sexual conduct is classified by statute into acts of sexual penetration or acts of sexual contact. No longer limited to sexual intercourse between a male adult and a female child, acts of sexual penetration in most states include any intrusion of the sexual organ of one person into the sex organ, mouth, or anus of another person. The offenses are nearly uniform in the use of gender-neutral language, thus including acts committed by both male and female perpetrators against both male and female children.

The term sexual contact refers to virtually all other forms of sexual conduct that fall short of sexual penetration. Sexual contact includes any acts in which an adult touches the intimate parts of a child with sexual intent, or allows, with sexual intent, the child to touch the intimate parts of the adult. Most states define intimate parts to include the sexual organs, groin area, or buttocks of any person and the breasts of a female. Because not all touching of the intimate parts of a child is inherently sexual, proof of the adult's sexual intent in the touching is an element of sexual contact offenses. A few states broadly prohibit taking immodest, immoral, or indecent liberties with a child, an offense often comparable to sexual contact offenses in the level of punishment imposed, but encompassing by its broad language both acts of penetration and acts of sexual contact.

The early English model of creating one simple age of consent has been almost universally abandoned in the United States, with the vast majority of states creating multiple tiers of offenses in which the severity of the offense varies depending on the age of the child. First tier offenses apply to sexual acts with younger, typically prepubescent children, an age most commonly identified by the states as children younger than twelve, thirteen, or fourteen years old.

Second tier—and in some states third tier—offenses apply to sexual acts with older children, generally those children who have reached the age at which puberty commonly begins. In Virginia, for example, the most serious penetration offense, a felony, applies when the victim is under thirteen years old; a lesser offense, also a felony, applies to children thirteen and fourteen years old; and a misdemeanor offense applies when a child is between the ages of fifteen and seventeen years old.

A state with a tiered system for penetration offenses is likely to apply the same age categories to sexual contact offenses, although several states with tiered age categories for penetration offenses establish only a single age for sexual contact offenses.

The upper end of the age categories identifies the point at which age is no longer a barrier to consensual sexual activity. As of December 1999, the age of consent for sexually penetrative activity between adults and children was sixteen years old or older in all but one state. A substantial minority of states establish either seventeen or eighteen years old as the age of consent. When offenses involving abuse of a special relationship are considered, a strong majority of states establish eighteen years old as the age of consent.

Sexual penetration offenses with young children uniformly receive felony-level punishments, as do most such offenses involving older adolescents. Sexual contact offenses against prepubescent children are typically, but not necessarily, felonies; when committed against older children, sexual contact offenses are likely to be misdemeanors.