Study with the several resources on Docsity
Earn points by helping other students or get them with a premium plan
Prepare for your exams
Study with the several resources on Docsity
Earn points to download
Earn points by helping other students or get them with a premium plan
1 / 135
This page cannot be seen from the preview
Don't miss anything!
Acknowledgements
Work on this project was funded by the Office of the Assistant Secretary for Planning and Evaluation in the U.S. Department of Health and Human Services under a contract to The Lewin Group. This report benefited greatly from the oversight and input of Jerry Silverman, the ASPE Project Officer.
In addition, we would like to acknowledge the assistance of a number of reviewers. Sarah Brown, Eva Klain, and Brenda Rhodes Miller provided us with valuable guidance and insights into legal issues and the policy implications of the laws and reporting requirements. Their comments improved both the content and the organization of the paper.
At The Lewin Group, Shauna Brodsky reviewed drafts and provided helpful comments.
The Authors
Executive Summary
State Age of Consent Minimum Age: Victim
Age Differential Minimum Age: Defendant A 18 -- -- -- B 16 -- 4 -- C 16 13 4 -- D 16 16 -- 18
State A has a single age of consent. In this state, a male or female under age 18 cannot consent to sex, regardless of the age of the other party. Thus, sexual relations between two 17-year-olds would be illegal, as would relations between a 17-year-old and a 25-year-old.
Thus, in order to understand a specific state’s laws, one must look to see which of these elements is included. The individual state law summaries contained in this report help the reader get a better sense of how statutory rape is defined in a specific state.
State civil codes spell out reporting requirements. They detail who must report (i.e., mandated reporters) and where reports must be made (generally child protective services, law enforcement, or both). In almost all states, the reporting requirements related to statutory rape are found in the section of the civil code that describes child abuse reporting. As such, the requirement to report statutory rape is generally dictated by states’ definition of child abuse— which varies substantially by state. Statutory rape is not always a reportable offense.
A primary factor in determining whether statutory rape is child abuse is the relationship between the victim and the defendant. In roughly one-third of state codes, statutory rape is only considered child abuse—and therefore a reportable offense—if it is perpetrated or allowed by a person responsible for the care of the child.^1 Take the example of State A above. The relationship in
(^1) The exact definition of this relationship varies by state, but it usually includes the child’s parent, guardian, custodian, or caretaker. In many cases is also includes the child’s teacher, doctor, or coach.
Executive Summary
question involves a 15-year-old and a 19-year-old. This would be a violation of the state’s criminal code. However, suppose this state defines child abuse as any sexual act that is in violation of criminal law, but only if the act was perpetrated by the victim’s parent or other person responsible for the child’s care. In this state, statutory rape would not be a reportable offense under the child abuse code if the person who perpetrated the crime was not responsible for the care of the child.
In the remaining two-thirds of the states, the statutes outline circumstances where statutory rape is a reportable offense regardless of the relationship between the victim and the defendant. Within these states there is a wide continuum. In some, there are limited circumstances in which an offense must be reported. For example, in some of the states where state statutory rape is only a reportable offense if the defendant is someone responsible for the care of the child in question, the reporting requirements make an exception for those cases involving a victim who is below a certain age (e.g., less than 12 years of age). In these cases, mandated reporters must notify the proper authorities of suspected abuse regardless of the defendant’s relationship to the victim. At the other end of the spectrum are states in which the definition of child abuse includes all statutory rape offenses; mandated reporters are required to notify the proper authorities of statutory rape regardless of the relationship between the victim and defendant.
The wide variation among states in terms of the relationship between the different criminal offenses and reporting requirements necessitates close examination of the individual state summaries.
Staff in the three HHS programs of interest have to understand to sets of laws concerning statutory rape. First, they have to understand the criminal code in the state—that is, what types of sexual activities are and are not legal. They need to be able to identify whether or not the teenager is involved in an illegal relationship. Second, they must determine whether or not they are required to report this relationship to the proper authorities. Thus, they must have a grasp of child abuse reporting laws.
This is not always a straightforward exercise. In many states, the two sections of law do not align neatly. For example, in some states the civil code (and reporting requirements) references specific sexual acts listed in the criminal code. In other states, the definition of child abuse does not reference any statutory rape-related offenses defined in the criminal code.
This report is divided into the following sections:
Introduction
The U.S. Department of Health and Human Services (HHS) is concerned about the health of adolescents, including unwanted sexual contact at a young age. For example, research finds that:
These findings raised concerns among policy makers, health care providers, and advocates alike and prompted a study of alternatives for reducing coercive sexual activity. Of paramount concern is protecting young people from harm and providing vulnerable young people with the health care and other supports that they need while assisting service providers in their obligation to comply with state reporting requirements. It is important to understand how HHS grantees can meet those responsibilities within the context of their organizational missions, which may involve the provision of confidential services.
The Office of the Assistant Secretary for Planning and Evaluation (ASPE) within HHS, and its federal partner agencies, are focusing on three federally funded programs that have contact with adolescents: Title X family planning clinics, Health Resources and Services Administration-supported health centers, and child protective services. ASPE contracted with The Lewin Group, a health and human services consulting firm, to conduct a multi-phase, descriptive study to collect information about state laws, federal guidance to programs, and grantees’ and local offices’ practices. Lewin is assisted in the study by an advisory group composed of representatives from each of the three HHS agencies on which the study is focused: The Office of Population Affairs, the Children’s Bureau, and the Health Resources and Services Administration.
One task of this project was a compilation of state laws and reporting requirements. As this document indicates, there is wide variation among laws and reporting requirements in different states. This report includes the following two sections:
(^1) The Alan Guttmacher Institute (1994). Sex and America’s Teenagers. New York. (^2) Donovan, P. (1998). “Caught Between Teens and the Law: Family Planning Programs and Statutory Rape Reporting,” The Guttmacher Report on Public Policy. 1(3): 5-7.
Introduction
This report is designed to provide information useful to state and federal policymakers who are interested in how state statutes address statutory rape. It is also intended to serve as a resource for HHS grantees to better understand their legal obligations with respect to statutory rape.
Unlike most rape laws, in which force is a key element of the offense, statutory rape laws assume that all sexual activities with individuals below a certain age are coercive, even if both parties believe their participation is voluntary. Generally, statutory rape laws define the age below which an individual is legally incapable of consenting to sexual activity. For example, the Supreme Court of Idaho defined the ability to give legal consent to include: (1) the ability to recognize the potential consequences of sexual intercourse and, given this understanding, (2) the ability to make a knowing choice.^3
The History of Statutory Rape Laws
As Michelle Oberman discusses in Regulating Consensual Sex with Minors: Defining a Role for Statutory Rape , the theoretical underpinnings of statutory rape laws have changed dramatically since their inception.^4 The modern rationale for these laws is grounded in the desire to protect minors from sexual exploitation. However, when these laws originated in 13 th^ century, the primary intent was to protect the chastity of young women.
Oberman notes that the emergence of feminism heavily influenced changes to statutory rape laws. The laws went largely unchanged until the end of the 19th^ century, when feminists sought to increase the age of consent to protect young women from potentially coercive relationships. As a result of these efforts, the average age of consent was raised from 12 to 18 years old.
In the 1970’s, second wave feminists began to challenge the underlying principles of statutory rape laws. Although they recognized the importance of protecting vulnerable minors from coercive and exploitative sexual relationships, they wanted to ensure that the laws did not unduly restrict the sexual autonomy of young women. In addition, there was a strong push to make the laws gender-neutral.
Statutory rape laws continue to evolve in the wake of the reforms of the past 30 years. For example, the issue surfaced during debates about welfare reform in the mid 1990’s when some legislators suggested that stricter enforcement of statutory rape laws could help to reduce teen pregnancy rates.
(^3) State v. Soura, 118 Idaho 232, 796 P.2d 109 (1990) (^4) Oberman, M. (2000). “Regulating Consensual Sex with Minors: Defining a Role for Statutory Rape,” Buffalo Law Review , 48: 703-784.
Introduction
through the state legislature’s Website. As of this writing, all of the statutes were current through at least 2003. This report is not intended to be a legal document. It relies on the most recent information available; however many of the state statutes referenced were unannotated. That said, every effort was made to search additional resources to learn of recent changes in the law or applicable case law and attorneys’ general opinions affecting the statutes.
In addition to the actual state statutes, a number of documents and on-line resources provided valuable supplementary information. These include:
Summary of Current State Laws
As noted above, few states use the term statutory rape in their codes. Instead, criminal codes specify the legality of specific sexual acts. The applicable laws are often embedded in the section of the code dealing with other sexual offenses (e.g., sexual assault, forcible rape).
This section summarizes some key provisions of state statutory rape laws.^1 Subsection 1 examines the legality of sexual activities involving minors (e.g., age of consent). Subsection 2 describes briefly the variety of offenses delineated in state statutes.
States’ statutory rape offenses detail the age at which an individual can legally consent to sexual activity. This section focuses on laws addressing sexual intercourse.^2 Table 1 summarizes, where applicable, each state’s:
As the first column in Table 1 shows, the age of consent varies by state. In the majority of states (34), it is 16 years of age. In the remaining states, the age of consent is either 17 or 18 years old ( and 11 states, respectively).
(^1) Although the federal government’s jurisdiction is limited, the United States Code does include statutory rape laws. See 18 U.S.C.A. § 2241 and § 2243. (^2) There are some cases where a state’s laws regarding sexual intercourse are not consistent with one or more of its laws governing other types of sexual acts. For example, in South Dakota, engaging in sexual penetration with someone between 10 and 16 years of age is illegal unless the defendant is less than 3 years older than the victim. However, sexual contact with someone who is less than 16 years of age is illegal regardless of the age of the defendant (in State v. Darby, 556 N.W.2d 311, 127 (SD 1996) , the South Dakota Supreme Court found that these two offenses can be mutually exclusive). Such instances are identified in the appropriate state summaries.
Summary of Current State Laws
State
Age of consent
Minimum age of victim
Age differential between the victim and defendant (if victim is above minimum age)
Minimum age of defendant in order to prosecute New Jersey 16 1310 4 N/A New Mexico 16 13 4 18 (if victim is ≥ 13) New York 17 17 N/A N/A North Carolina 16 N/A 4 12 North Dakota 18 15 N/A 18 (if victim is ≥ 15) Ohio 16 13 N/A 18 (if victim is ≥ 13) Oklahoma 16 14 N/A 18 (if victim is > 14) Oregon 18 15 3 N/A Pennsylvania 16 13 4 N/A Rhode Island 16 14 N/A 18 (if victim is ≥ 14)
South Carolina 16 14
Illegal if victim is 14 to 16 and defendant is older than victim N/A South Dakota 16 1011 3 N/A Tennessee 18 13 4 N/A Texas 17 14 3 N/A Utah 18 16 10 N/A Vermont 16 16 N/A 16 Virginia 18 15 N/A 18 (if victim is ≥ 15)
Washington 16 N/A
2 (if victim is < 12), 3 (if victim is < 14), 4 (if victim is < 16) N/A
West Virginia 16 N/A 4 (if victim is ≥ 11)
16, 14 (if victim is <
Wisconsin 18 18 N/A N/A Wyoming 16 N/A 4 N/A
Note: Some states have marital exemptions. This Table assumes the two parties are not married to one another.
A common misperception about statutory rape is that state codes define a single age at which an individual can legally consent to sex. Only 12 states have a single age of consent , below which an individual cannot consent to sexual intercourse under any circumstances, and above which it is legal to engage in sexual intercourse with another person above the age of consent. For example, in Massachusetts, the age of consent is 16.
In the remaining 39 states, other factors come into play: age differentials, minimum age of the victim, and minimum age of the defendant. Each is described below.
Minimum age requirement. In 27 states that do not have a single age of consent, statutes specify the age below which an individual cannot legally engage in sexual intercourse regardless of the age of the defendant (see the second column in Table 1 ). The minimum age requirements in these states range from 10 to 16 years of age. The legality of sexual intercourse with an
(^10) It is illegal to engage in a sexual penetration with someone who is less than 13 years of age regardless of the age of the defendant. However, sexual contact with someone who is less than 13 years of age is legal under certain circumstances. (^11) Engaging in sexual penetration with someone who is at least 10 years of age and less than 16 years of age is legal under certain circumstances. However, sexual contact with someone who is less than 16 years of age is illegal regardless of the age of the defendant.
Summary of Current State Laws
individual who is above the minimum age requirement and below the age of consent is dependent on the difference in ages between the two parties and/or the age of the defendant.
Age differential. In 27 states, the legality of engaging in sexual intercourse with minors is, at least in some circumstances, based on the difference in age between the two parties (see the third column in Table 1 ). In 12 of these states, the legality is based solely on the difference between the ages of the two parties. For example:
Although it is less common, the age differentials in some states vary depending on the age of the victim.
Minimum age of defendant in order to prosecute. Sixteen states set age thresholds for defendants, below which individuals cannot be prosecuted for engaging in sexual intercourse with minors (see the last column in Table 1 ).
States that set a minimum age of the defendant also tend to have minimum age requirements for the victim. Often, the age of the defendant is only relevant if the victim is above the minimum age requirement.
Some states define minimum age thresholds for defendants and age differentials.
Summary of Current State Laws
Although the primary focus of this report is not the punishments associated with statutory rape, the offenses in each state summary are listed in ascending order based on their severity.^13 The severity of the crime is usually dependent on the nature of the sexual activities and the age of the victim and/or defendant.^14
Depending on the state, defendants may be exempt from prosecution if they are married to the victim. In some states, marriage is a defense to all of the crimes listed (e.g., Alaska, District of Columbia, West Virginia); other states exclude some of the more aggravated offenses from this exemption (e.g., Arkansas, Louisiana, Mississippi).^15 In a few states, the criminal statutes identify age limits for the marriage exemptions.^16 Individual state summaries note those crimes that include spousal exemptions.^17
Statutory rape reporting requirements are generally found in the sections of states’ codes that deal with juveniles, children and families, domestic relationships, or social services, whereas the criminal or penal codes address the legality of specific offenses. This section of the report summarizes states’ child abuse reporting requirements and the extent to which they address the issue of statutory rape. It is divided into four subsections.
State statutes vary in the extent to which statutory rape is included in the reporting requirements. In approximately one-third of the states, mandated reporting is limited to those situations where the abuse was perpetrated or allowed by a person responsible for the care of the child.^18 Consider the example of Virginia. Child abuse, a reportable offense, is defined to
(^13) It is important to note that this ordering is inexact. The statutes often provide a range of sentences and this ordering does not take into account the effect of any sentencing recommendations in the statutes or other documents. (^14) Most statutes categorize crimes based on the severity of the act (e.g., 1 st, 2 nd (^) , or 3 rd (^) degree rape). The state summaries note those cases where, within a specific crime, the severity varies depending on the age of the defendant. For example, Georgia law considers the crime of statutory rape to be a felony unless the victim is 14 or 15 years of age (the age of consent is 16) and the defendant is no more than 3 years older than the victim, in which case the offense is only a misdemeanor. (^15) In Arkansas, marriage is a defense to 2 nd (^) , 3 rd (^) , and 4 th (^) degree sexual assault but not rape. (^16) In South Carolina, the spousal exemption does not apply to marriages entered into by a male under 16 years of age or a female under 14 years of age. (^17) It is important to note that this report does not address state laws governing the age at which individuals can marry. (^18) Usually, persons responsible for the care of a child include parents, guardians, custodians, caretakers, or individuals living in the same house as the child. The exact definitions vary by state.
Summary of Current State Laws
include any sexual act that is in violation of the state’s criminal law, but it is limited to those acts perpetrated by the victim’s parent or other person responsible for the child’s care.
In two-thirds of the states, the statutes specify circumstances under which child abuse is a reportable offense irrespective of the defendant’s relationship to the victim. In some states, the definition of child abuse includes all of the statutory rape offenses detailed in the criminal code (e.g., North Dakota, Ohio, and Wyoming). In such cases, mandated reporters are required to notify the proper authorities if they suspect that a child has been a victim of any of these offenses. More often, states vary in terms of the applicability of the reporting requirements. The following examples illustrate the variation among these states.
In some states, there are only a few specific circumstances under which offenses not involving a person responsible for a child are considered reportable offenses. In Minnesota, for example, such a case is only a reportable offense if the reporter suspects that a defendant has sexually abused two or more children not related to the defendant in the past 10 years. Rhode Island law only requires reports of non-familial cases in two situations: (1) if the defendant is less than 18 years of age; or (2) if the mandated reporter is a physician or nurse practitioner who treats a child who is less than 12 years of age and has been infected with a sexually transmitted disease. In Iowa, the reporting requirements only pertain to cases involving someone responsible for the care of the child in question. However, a separate provision requires mandated reporters to notify the proper authorities of all cases of sexual abuse involving a victim under 12 years of age regardless of the defendant’s relationship to the victim.
In other states there are fewer limits on the applicability of reporting requirements to statutory rape. Often, such limitations are based on the age of the victim and/or the defendant. For example, in California all sexual activity involving minors is illegal. However, the reporting requirements only apply to the violations of certain criminal offenses—namely, those addressing situations involving victims under 16 years of age where there is an especially large difference in the age of the two parties.^19
In those states where the definition of child abuse does not explicitly refer to statutory rape, discrepancies between the legality of certain sexual activities and whether they are reportable offenses are more common. Take the following examples:
(^19) Although the reporting requirements in many states make reference to one or more of the state’s statutory rape laws, California is somewhat of an exception in that the reporting requirements are included in the same section of the statutes (the penal code) as the criminal laws addressing sexual activities with minors.
