The Axes of Statutory Rape Law

Raising the age of consent, gender neutral reforms and legalizing teen sex

Statutory rape laws aim to explicitly define the boundary between having and lacking agency, while recognizing that agency exists on a spectrum and generally increases with age. Any law will inevitably criminalize some actions that “shouldn't” be illegal and fail to criminalize some that “should” be. As I discussed in "The Axes of Agency", minors, in general, are not considered full agents and we do not hold children wholly responsible for their actions:

This can be seen in lowered sentences for equivalent crimes relative to adults and the fact that contracts with minors are generally considered voidable. The other side of this coin of course is that we also limit the freedom of minors to engage in a variety of voluntary actions and we often give their parents the power to consent on their behalf.

While children receive greater protection, they also face various limitations on their liberty, including regarding sexual behavior. What is seen as an appropriate age of consent will vary with perspectives on sex, its consequences, and the typical maturity level of young people. However, it’s generally accepted that there’s some age below which individuals cannot give consent. As they mature, they gradually gain the capacity to do so, and modern statutory rape laws often aim to reflect this transition by grading offenses based on the age of the victim as well as by being more permissive of sex between close in age teens.

In my last piece I gave a brief introduction to statutory rape laws, suggested how they’ve encoded different social norms and values around sexuality over time, and introduced the major axes which are relevant for their definition. As a reminder, statutory rape laws are broadly defined by:

1. The age of consent: which refers to the age after which there are no restrictions on consensual sexual activity related to the age of the participants.

2. Age gap provisions: many states have so-called “Romeo and Juliet laws” which make sexual activity between peers legal even if one or both are underage, other states have age related conditions which make the crime a misdemeanor (rather than a felony) and reduce the severity of the associated punishment when the participants are close in age.

3. Gender neutrality: these laws were originally gender specific, such that only underage females could be victims of the crime, but they are now gender neutral in all states.

4. Exemptions and defenses: in many states these laws originally applied only to “women of previously chaste character,” and evidence of the victim’s “promiscuity” could be a viable defense - as of the late 90s this defense is no longer accepted in any states. Many states continue to treat the crime as one of strict liability, however a “mistake of age defense” was first allowed in the 1960s and continues to be accepted in a minority of states (Cocca, 2004, p. 11). Being married to the underage individual continues to be an exemption to statutory rape in all states where underage marriage is allowed.

The laws differ along each of these axes by state, and not always in the ways you’d expect - for example, as Carolyn Cocca covers in Jailbait¹, California’s laws are more similar to those in Georgia than those in New Jersey due to the relative influence and interest of religious groups vs. mainstream feminist groups at the time their laws were reformed. Reforms took place across the country between the 70s and the 90s, but the nature and motivation for the reforms changed over time.

California’s laws were reformed relatively late “during what might be called a “third wave” of statutory rape reform, more conservative in general than the wave of feminist reforms in the 1970s” (Cocca, 2004, p. 51). The timing of reforms across the country was partly influenced by particular cases which caused outrage or garnered public interest and prompted change at the state level. As I’ve discussed, there’s not really a coherent left-wing or right-wing position on statutory rape laws, which is another reason the reforms adopted in each state vary significantly.

Age of consent and some historical background

The age of consent refers to the age after which there are no restrictions on consensual sexual activity which relate to any of the participants’ age. In most states this age is set between 16 and 18, but many states allow sex between close in age teens and/or very young adults, even when one or both parties are “underage”. And even in states that criminalize all sexual activity involving minors, when participants are close in age the crime is generally graded as a misdemeanor rather than a felony and punished less harshly. Most states have multiple grades for the severity of the offense based on the age of the victim, such that sexual conduct with prepubescent minors is a more severe crime with harsher punishments. 

As I mentioned in my last piece, the age of consent in the United States was initially very low, set at 10-12 in nearly all states. The age of consent was raised around the turn of the century in most states during the “first wave” of statutory rape reforms. These changes were the result of concentrated efforts of feminists who found allies among working class men as well as religious conservatives:

Using a narrative of sexual danger to female virtue, feminist movements and suffragists, religious leaders, and white workingmen’s organizations [...] agitated at the state level to have “the age at which a girl can legally consent to her own ruin be raised to at least eighteen years” (Cocca, 2004, p. 14).

The early feminists who sought to raise the age of consent were concerned that “the sexual double standard that demanded female chastity before marriage yet allowed men access to those above age 10 or 12 [...]” created “the potential for young, vulnerable, and supposedly passionless and passive females to be abused by predatory males” (Cocca, 2004, p. 13). There was also an increasing focus on “working-class mores” as industrialization led young women to move to cities for work which “fostered unchaperoned heterosexual activities” (Cocca, 2004, p. 12). These societal changes resulted in working women “dating” (and sleeping with) men who would often pay for a meal or entertainment which she couldn’t have afforded on her own.

As mentioned in the above quote, this behavior led to the emergence of a narrative that well-to-do men were “taking advantage” of young working-class women, potentially leading them into a life of prostitution or near-prostitution, and this motivated working-class men to join with feminists in demanding a higher age of consent. Finally, conservative religious groups, focused on protecting the chastity of young women and eager to place further prohibitions on premarital sex, also supported raising the age of consent (Cocca, 2004, p. 13). 

At the time of the first wave reforms, these laws were gender-specific, such that only young women could be victims and only males (of any age, even if he was younger than the “victim”) could be perpetrators. Raising the age of consent relied on arguments that young females (but not young males) were incompetent to make sexual decisions in their best interest, that a “hearth oriented married life [was] the ultimate goal to which a decent and moral woman would aspire” and that female chastity was (and should be) important to a woman’s marital prospects (Cocca, 2004, p. 12). 

Second wave feminists rejected the notion that women were sexually passive, that they were inherently less capable of managing sexual liberty than men and that preventing premarital sex was a laudable goal. They “felt that the nineteenth-century feminists had served in some measure to reinscribe patriarchal notions of female sexuality and mental (in)capacity into law and to reinforce stereotypes of gender by prohibiting sex with an underage female only” (Cocca, 2004, p. 17).

At the same time, they were working to reform forcible rape laws in a variety of ways, including broadening the offense beyond penile-vaginal penetration and lowering penalties (with the hope of increasing convictions) while also grading them by severity. They not only wanted to update the understanding of what constituted sexual assault but also, in concert with “law-and-order forces, such as police and prosecutors [...] wanted to encourage women to report the crime and cooperate with authorities so that convictions were easier to obtain” (Cocca, 2004, p. 17). Given this broader project, they wanted to retain the crime of statutory rape as a tool to protect young women from coercive sex since “[s]tatutory rape is simply easier to prosecute than is forcible rape” (Cocca, 2004, p. 18).

This “second wave” of statutory rape reforms began in the early 1970s and feminist debate around them touched on several of the same pain points which divided feminists in the broader “sex wars” of the time. As Olsen says in her 1984 essay on the topic²:

These laws pose a classic political dilemma for feminists. On one hand, they protect females; like laws against rape, incest, child molestation, and child marriage, statutory rape laws are a statement of social disapproval of certain forms of exploitation. To some extent they reduce abuse and victimization. On the other hand, statutory rape laws restrict the sexual activity of young women and reinforce the double standard of sexual morality. The laws both protect and undermine women’s rights, and rights arguments can be used to support, attack, or urge changes in the laws. (Olsen, 1984, p. 306)

While the most ardently sex-positive feminists advocated for simply lowering the age of consent to acknowledge the sexual agency of teenage girls, they had few allies. Both radical sex-negative feminists and more mainstream liberal feminists were concerned about the potential for exploitation of women, particularly by older men, and religious conservatives also wanted to maintain a higher age of consent for the same reasons they supported the reforms in the 1890s. As such, the age of consent became somewhat secondary to disagreements about whether the laws should be made gender neutral and if they should include age gap provisions.

Gender neutrality and age gap provisions

Statutory rape laws were originally put in place primarily to protect the virginity of young females and many states established relatively early on that a defense based on claims that the victim was sexually experienced were valid: “[t]he "promiscuity defense" exculpated the accused if he could demonstrate credible evidence that the minor had behaved promiscuously in the past” (Oberman, 1994, p. 26). As public opinion on the purpose of these laws shifted more towards protecting vulnerable young people from coercion and exploitation rather than maintaining their marriageability, this language was removed from state laws, with Mississippi being the last to do so in 1998 (I’ll discuss the anachronistic nature of the marital exemption along with the evolution of accepted defenses in a future post). 

With the protection of female chastity no longer seen as a reasonable justification for statutory rape laws, feminists argued that they should be made gender neutral. This would formally recognize females as equal to males in the law and would also extend the protection offered by statutory rape laws to young males, who could also be victims (I’ll likely write another short post on the specific cases, often involving adult men, which led to societal changes such that males could be seen as potential victims of statutory rape).

While the gender specific laws provided special protections to young women, who were seen as being more vulnerable to potential sexual exploitation, they also restricted the sexual activity of young females but not young males, and so limited the liberty of young women in ways that young men did not face:

By refusing to grant women autonomy and by protecting them in ways that men are not protected, the state treats women’s bodies—and therefore women themselves—as objects. Men are treated differently. Their bodies are regarded as part of them, subject to their free control. (Olsen, 1984, p. 308)

Therefore, it was argued that the gendered laws failed to protect boys while also failing to liberate girls. However, in addition to there being less public concern regarding the potential for sexual exploitation of young men, the prospect of making the laws gender neutral raised several concerns: 

1. If the laws were gender neutral, then how to identify the “victim” would be unclear if both participants were underage.

2. This would lead to less reporting of such cases due to fear that the individual reporting the activity could be charged with statutory rape as well.

3. Therefore, such a change would likely bring along with it changes which would decriminalize sex between minors who are close in age (or which would at least reduce the severity of the crime in such cases).

4. But that would mean that the reformed laws failed to protect girls from coercive or exploitative sex with similarly aged boys, holding them to the same standard as adult women if they want to prosecute any such sexual activity.

So, basically, gender neutrality typically came along with age gap provisions which more or less allowed consensual sex between similarly aged minors. While this was the intent of most liberal feminists who, in a post-sexual revolution world, wanted to give young women the agency to explore their sexuality, more radical feminists were concerned that forcing legal equality before actual equality had been achieved would only reduce the protections available to young women while failing to change their actual position: “Gender-neutral language would neither empower nor protect young females in any way; rather, the language would make it seem as if they were similarly situated with young males when they simply were not” (Cocca, 2004, p. 65). 

Despite the fact that these reforms were being debated during a time when many other gender-specific laws were being successfully challenged as unconstitutional, court rulings were not a factor in removing the gender specificity of statutory rape laws. In a series of cases throughout the seventies state courts consistently ruled that gender specific statutory rape laws were constitutional, and the Supreme Court ruled in favor of the constitutionality of California’s law in 1981 (Cocca, 2004, p. 68). This ruling relied on the unequal physical costs that sex could impose on women, namely pregnancy, which was a significant concern given the focus on decreasing unmarried teen pregnancy at the time:

Rejecting the plaintiff’s argument that the gender specificity of the statute had as its purpose the anachronistic protection of female chastity, the Supreme Court found that the statute served as a legitimate means to deter teenage pregnancy. [...] The majority argued that while only the female party could get pregnant from a (heterosexual) sexual encounter, “[n]o similar natural sanctions deter males” (450 US 464 at 473). Thus, a law punishing only the male would “‘equalize’ the deterrents on the sexes” (450 US 464 at 473) when they decide to engage in sexual activity. If the female were under threat of punishment, she might then be deterred from reporting the statutory rape violation. (Cocca, 2004, p. 70). 

Still, despite the arguments to the contrary and the court rulings asserting that gender specific statutory rape laws were constitutional, these laws were eventually made gender-neutral in all states:

Those drafting the revisions were divided as they struggled to reconcile these competing notions. Some saw a continuing need for these laws, arguing that teens-especially female teens simply are not equipped to handle the pressures and consequences of sex; others disagreed, asserting that teen girls and boys are equally capable of making informed choices in regard to their sexuality." Ultimately, the new laws favored standards of abstract equality. (Oberman 36)

As Michelle Oberman points out in her highly cited article on the topic, Turning Girls into Women³, statutory rape laws were “premised upon the belief that young girls are too easily coerced to effectively consent to sex”, yet age gap provisions implied that girls did have the ability to consent, so long as their partner was close in age. The reformed laws therefore implied that highly legible factors, like age differences, would be sufficient to presume coercion or lack thereof, but ignored other pressures and constraints which complicate consent for young girls in particular (Oberman, p. 42). While Oberman is correct to point out that age difference is far from the only relevant variable for determining whether sex was coercive or otherwise problematic, and while the specific ages and age gaps chosen will necessarily be arbitrary, as I discussed in The Axes of Agency, this will generally be the case since: 

[W]e can’t have laws that are as vague and context dependent as the reality underlying the quality of decision making for different individuals. People need to be able to predict with near certainty whether their actions would be considered legal or not. [...] Basically, we simplify much of this debate around the factors that influence ability to consent down to a single variable: how old are they? [...] Of course, this arbitrary line drawing means there will be plenty of cases where we question the ability of someone over eighteen to meaningfully consent and there will also be cases where a capable minor is prevented from exercising their own agency. But the ease of enforcement and predictability of whether an action will be deemed illegal are worth the downsides related to the inevitable categorization errors that come with the application of blunt boundaries.

Formal equality vs. equity

As I mentioned in my last post on this topic, statutory rape law pits the value of liberty against the value of safety within a population that most people agree is particularly vulnerable. However, while teenagers are vulnerable, they are also generally mature enough to find restrictions on their liberty upsetting, and you could argue that they should be allowed to begin building personal agency by making mistakes and being held accountable for them, including through exploring their sexuality. But in addition to how we ought to balance the freedom and security of young people, this topic also raises the debate over whether formal equality or attempts to engineer equality of outcome yield better results. Quoting Olsen again:

[A]ny acknowledgement of the actual difference between the present situation of males and females stigmatizes females and perpetuates discrimination. But if we ignore power differences and pretend that women and men are similarly situated, we perpetuate discrimination by disempowering ourselves from instituting effective change. [...] The strategy of promoting equality runs afoul of the conflict between former equality of opportunity and substantive equality of outcome. (Olsen, 1984, p. 310)

This same structure of debate comes up for many issues where liberals differ from progressives. One notable example in recent years is the debate over colorblindness, which mirrors this discussion. Should we make laws and norms gender-neutral, assuming that treating both genders equally is the correct way to achieve equality? Or should we recognize the reality of gender differences with respect to sex for teens and reflect that in the laws, assuming that protecting more teenage girls from exploitation is the correct way to achieve real equality (or equity)? Similarly, should we treat people the same regardless of their racialized identity, attempting to avoid tribal or familiarity-based biases where possible, or must we recognize the context that someone’s racialized identity implies in order to promote equality of outcome?

Personally, I feel that in this case the benefits of making statutory rape laws gender neutral outweighed the costs. While I acknowledge that sex can have different physical and psychological consequences for teenage girls vs. boys, teenage boys are also vulnerable to sexual coercion, particularly from people in positions of power (think coaches, boy scout troop leaders etc.). And while far from perfect, I think age gaps are a reasonable way to assess the likelihood that sex was coercive and to clearly demarcate the legal boundaries of acceptable behavior. 

Teenage girls, while admittedly more vulnerable in sexual encounters, also want to explore their sexuality with their male peers. And in a culture where premarital sex is considered acceptable, giving girls the power to charge a boyfriend with a sex crime based only on the evidence that they had sex seems like it would create poor incentives that serve neither young women nor young men. That said, I think the argument for gender specificity in statutory rape laws is stronger than that against colorblindness in general. The argument against colorblindness focuses on cultural and historical differences but fails to articulate why colorblindness shouldn’t at least be a goal to strive for in a future where such differences are less relevant and also fails to deal with the significant variance within groups. The differences between men and women with respect to sex on the other hand can be expected to persist and the difference in physical costs, i.e. potential for pregnancy vary much less among individual men and women.

I’ll likely write one or two more pieces on this topic covering the defenses and exemptions allowed within statutory rape law and how they relate to changing cultural views on sex, as well as on the shift in societal understanding as it relates to male victims of the crime. But until then, thanks for reading!

1. Cocca, Carolyn. Jailbait: The politics of statutory rape laws in the United States. State University of New York Press, 2004.

2. Olsen, Frances. "Statutory Rape: A Feminist Critique of Rights Analysis [1984]." Feminist Legal Theory, edited by Katharine T. Bartlett and Rosanne Kennedy, Westview Press, 1991, pp. 305-317.

3. Oberman, Michelle. "Turning girls into women: Re-evaluating modern statutory rape law." J. Crim. L. & Criminology 85 (1994): 15.