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Sex Offenses: Children - Variable Elements

age victim offender authority

A feature found in a majority of states is a separate offense or an enhanced penalty when an offender is in a position of trust or authority with respect to the child victim. Consistent with psychological literature demonstrating that significant harm is caused by a violation of trust, these offenses establish stronger penalties when a person exploits an authority relationship to sexually abuse a child. In some states a position of authority is limited to one in a parental role, while other states more broadly include teachers, clergy, and others in a position of authority with respect to the victim.

Another common innovation is language exempting from the scope of the criminal law sexual relations between children who are both below the age of consent. One method of accomplishing this goal requires proof of an age differential between perpetrator and victim. Many states have adopted a four-year age differential recommended by the Model Penal Code "to reflect the prevailing pattern of secondary education," though the age gap is smaller in a few states and larger in others. A different method of addressing the same concern is to create as an element of the offense a minimum age the offender must have attained. In Alaska, for example, a nonfamily offender who has sexual intercourse with a child under thirteen must be sixteen years of age or older; if the victim is sixteen or seventeen years old, the offender must be eighteen years or older. Some states combine the two approaches, requiring both a minimum age for the offender and an age differential between participants.

A handful of states create an offense for the continuous abuse of a child. A child who is abused repeatedly over a period of time may not be able to recall with specificity individual acts of abuse. Continuous abuse statutes eliminate the requirement that prosecutors prove a series of discrete acts, requiring only that the prosecutor prove a specified number of acts occurring within a designated time frame.

During much of the 1900s, several states required proof of a female victim's chastity, particularly when the victim was an older adolescent. This element is now rejected by nearly every Figure 1 state, allowing prosecution regardless of a child's virginity. A large minority of states, however, require proof that the child is not married to the adult, thus allowing a defense in some of these states if the defendant marries the child prior to the prosecution.

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