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Statutory rape is generally defined as the “unlawful intercourse with a person under the age of consent … regardless of whether it is against the person’s will” (Garner, 1999 as cited in Mitchell and Rogers, 2003). In other words, under the statutory rape laws, it is considered illegal to have sex with an individual who is still under the age of consent even if said individual consents to the act. Going further, the law says that there could never be any consensual sex if one of the parties involved is below the age of consent. However, the current debate on statutory rape and the age of consent favors certainly the review of the legal age of consent.
The laws covering statutory rape have become a part of the legal system of the United States as a result of the influence of the English common law. As early as 700 years ago, the laws of England provided that sexual intercourse with a “maiden” below the age of consent which was then established at 12 years old was deemed illegal. The age of consent was later changed to 10 years old around 1576. The law establishing the age of consent was passed in England because it was believed that a person was not capable of “consenting to sexual intercourse” at a certain age (Donovan, 1996).
The early American laws adopted the English common law but by the 19th century, the age of consent was steadily raised in the United States. By 1996, the age of consent in the different states in the country ranged between 14 – 18 years old. Hawaii was the lone state which established the age of consent at 14 while South Carolina decided on 15 years as the age of consent. Seventeen years was established as the age of consent in the six states of Louisiana, Missouri, New Mexico, New York, Texas, and Utah 15 states decided that the age of consent should be 18 years. These were the states of Alaska, Arizona, Arkansas, California, Colorado, Florida, Idaho, Illinois, Mississippi, North Dakota, Ohio, Oklahoma, Oregon, Tennessee, and Wisconsin. Finally, the remaining 28 states passed laws declaring 16 years as the age of consent. These states were Alabama, Connecticut, Delaware, District of Columbia, Georgia, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Jersey, North Carolina, Pennsylvania, Rhode Island, South Dakota, Vermont, Virginia, Washington, West Virginia, and Wyoming (Donovan, 1996).
The debate concerning the issue of the age of consent which started in 1995 was sparked by the perceived relationship between statutory rape and teenage pregnancy. Proponents of the statutory rape laws have cited studies which showed that majority of the fathers of the babies born to teenage mothers were adults who were older than the mothers by more than four years. As a result, they have initiated a move to work for a more vigorous enforcement of the statutory rape laws. The belief was that when statutory rape offenders would be more vigorously prosecuted, the move would serve as an effective deterrent by sending “a loud message that there will be serious consequences for adult men who impregnate minors” (Donovan, 1996). Statutory rape cases, therefore, should be aggressively pursued, the offenders promptly prosecuted and sentenced to long prison terms.
In California, where teenage pregnancy which involved adult fathers was highest in 1995, then Governor Wilson set aside $2.4 million for the state’s Statutory Rape Vertical Prosecution Program which aimed to enforce the statutory law aggressively. Referring to adult men who impregnate teenage girls as “male predators,” Governor Thomas Carper of Delaware said that “If we are committed to ensuring that our welfare reform and teen pregnancy prevention efforts are successful, we must recognize that older men frequently prey on young, vulnerable girls.” Delaware’s “Sexual Predator Act of 1996” was therefore passed and the sentence handed down for every conviction in a statutory rape case was consequently doubled (Donovan, 1996).
For its part, Georgia raised the minimum prison term for statutory rape to 10 years when the men involved were over 21 years old. In Florida, a man whose age was more than 21 years was accused of child abuse for impregnating a female aged below 16 years. In addition, its earlier statutory rape law was amended in order to prohibit an individual who was 24 years or older from engaging in a sexual intercourse with a 16 or 17 year old minor. The justification for these moves was the same as in the case of Delaware: to attack “older men preying on younger girls” and prevent teenage pregnancies (Donovan, 1996).
Those who advocated for a more aggressive enforcement of the laws against statutory rape actually believed that sending offenders to prison would singularly reduce teenage pregnancy. According to the administrator of the vertical prosecution program of California, the objective was to get rid of statutory rape offenders – to keep them out of the streets once and for all. Specifically, Michael Carrington was quoted as saying that: “To the degree that they are out of the picture, the potential for adolescent pregnancy will be reduced.” In other words, once statutory rape is deterred, teenage pregnancy would also be prevented (Donovan, 1996).
However, there were those who remained unconvinced that prosecuting offenders would eventually result to reduced teenage pregnancy. The skeptics believed that statistics supported them. For instance, as of 1993, estimates of teenage pregnancy in California exceeded 30,000. When the vertical prosecution program was put into effect in 1996, cases of statutory rape filed and prosecuted in the state reached only 617. Out of these cases, only 293 convictions were obtained. Observers believed that even if the number of filed cases could be expected to increase as the program expanded, they still predicted that the program would only be able to address an insignificant portion of the actual cases of teenage pregnancy (Donovan, 1996).
There were also those who believe that programs aimed at aggressively prosecuting statutory rape offenders were merely diversionary tactics if not poor substitutes for actual solutions to the problem. For instance, Michael Males, a researcher based at the University of California who conducted a study of teenage pregnancy, was convinced that the “focus on statutory rape reflects the frustration of politicians searching for ‘a simple solution’ to the continuing problem of adolescent pregnancy and childbearing, rather than concern for the well-being of young adolescents.” What he was trying to say was that all of these efforts were not actually undertaken because politicians were looking out for the welfare of teenagers. From the New York Council on Adolescent Pregnancy, Mary Margaret Wilson expressed her fear that this trend would result to government officials conveniently blaming statutory rape for the rise in teen pregnancy instead of looking at such social problems as racism and poverty and their relationship to teen pregnancy as some studies tend to support (Donovan, 1996).
Another opposition to statutory rape and a high age of consent like 16, 17 or 18 years is the fact that today’s teenagers are already “sexually savvy even before they reach puberty” owing to the availability of information from such sources as the television, the movies, the internet, even magazines and other publications. Because of this development, it has become common for 14-year-olds to lose their virginity because of their aggressiveness. As a matter of fact, some of these minors have been observed in single bars posing as older females and actively seducing adult males. Their heavy makeup and the way they act and dress often make it very difficult for the adult males to recognize them for what they really are: mere teenagers and consequently underage from the legal point of view. Recognizing teenagers in such circumstances are especially difficult for adult males who are already under the influence of alcohol. Critics have been raising this point since adult males who mistake teenagers for adults and engage them in sexual intercourse are easy prey to charges of statutory rape in spite of the fact that they not only consented to the sexual intercourse but in fact were the active instigators of the act (Hirjikaka, 2007).
The law on statutory rape and age of consent effectively declares that it is highly improbable for an adolescent female and an adult male to fall genuinely in love. This is because once they engage in sexual intercourse, the law says that the adult male is guilty of statutory rape and could therefore be prosecuted even if both parties claim consensual sex. There have already been numerous such cases in the history of the American justice system. A case just like this happened in Texas twelve years ago. Frank Rodriguez, then 19, and Nikki Wiederhald, 15, fell in love. When Nikki’s mother found out that they had sex, Nikki’s mother brought a charge of statutory rape against Frank since the age of consent in Texas was 17. The case prospered despite Nikki’s statement that she was not raped and the sex had been consensual. When the case was subjected to plea bargaining, Frank was forced to plead guilty and sentenced to do seven years of probation otherwise face the prospect of an imprisonment of up to 20 years. During his probation, he was not only required to stay away from Nikki but also to stay away from any place where children were found. In other words, he was also supposed to leave their family home because he had a sister who was only 12 years old. He successfully served his probation after which they eventually got married. They now have four children. Their case clearly showed the unfairness of the statutory rape law (Stossel, Binkley, and Sullivan, 2008).
In view of the foregoing valid criticisms against statutory rape and the law on the age of consent, it is only proper that concerned authorities take the necessary time out to take a serious second look at the issue. It should be properly taken into account that today’s teenagers between the ages of 14 and 18 are no longer as naïve and innocent as they were 20 or 30 years ago. They are already mature enough to make informed decisions and should therefore be afforded the opportunity to do so. The age of consent should therefore be established accordingly. In-depth studies should also be conducted in order to properly ascertain the real causes of teen pregnancy, look for the most appropriate solutions, and formulate and implement the programs that would address the problem instead of just blaming everything on statutory rape.
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