What is Statutory Rape?

What these laws protect and punish and how they must balance protecting young people from state restrictions with protecting them from private exploitation

The decision to prohibit sex between adults and young teenagers is now typically presented as an issue of consent: the restriction is justified by the assertion that such relationships are too often sites of coercion, and that therefore the younger party’s “consent” is presumptively invalid. But the modern crime of statutory rape evolved from laws which were historically designed primarily to protect the virginity of young females and to preserve their marriageability. 

Even now, our laws are often inconsistent regarding the level of agency they attribute to underage teenagers in making consequential decisions about their lives. Several states allow marriage between an adult and an underage teenager so long as they have the consent of a parental guardian (and often a court order) but would prohibit sex outside of marriage between the same individuals under all circumstances. Are we to conclude that consenting to marriage, and sex within that marriage, requires less maturity than does consenting to sex outside of marriage? And how are we to interpret the ruling that when underage male teens impregnate their statutory rapist they are legally liable to pay child support, including support payments which accrued while the father was still a child and while he had no idea that the child even existed? Are we to conclude that he is nevertheless responsible for a pregnancy which resulted from sex which he wasn’t legally able to consent to?

What is statutory rape?

The crime of statutory rape, as distinct from forcible rape, requires the concept an “age of consent”, and prohibits (non-forcible) sex with individuals younger than this age. As Carolyn Cocca notes in her book Jailbait¹ (which I’ll reference heavily): “Under early English common law, a male could not be convicted of rape if the female had consented to the activity […]” (Cocca, 2004, p. 10), but this changed with the addition of a statutory rape law in the Statute of Westminster 1275 which prohibited sex with a “maiden within age”.  According to Stephen Robertson², this was interpreted “as meaning the age of marriage, which at the time was 12 years of age.” The early United States maintained similar definitions of statutory rape, with most states setting the age of consent between 10 and 12 (Cocca, 2004, p. 11).