Legislating Teen Sex: What’s (Terribly) Wrong With Our Age of Consent Laws

11:02 am in Uncategorized by RH Reality Check

Written by Martha Kempner for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

Last month, my husband forwarded me this article from the Daily Beast and I haven’t been able to get it out of my mind since. The article focuses on a few young men who went to jail and wound up on sex offender registries ostensibly for having sex with their teenage girlfriends. While the young men were teenagers themselves, at 18 the law considered them adults whereas their girlfriends at 14 and 15 were under the legal age of consent. Now, in fairness, neither of these boys went to jail just for having sex with an underage girl, there were aggravating circumstances – one punched his girlfriend’s father and both violated judges’ orders to stay away from the girls.

Still, all I could think about was that what started out as a somewhat typical high school relationship (a senior boy with a freshman or sophomore girlfriend is not at all that unusual) essentially ruined these young men’s lives. Not only did they spend time in jail and postpone any future plans, their names now sit on sex offender registries alongside those of serial rapist, child pornographers, and pedophiles.

And as is human nature, all I could think about was my own life story. Once upon a time, a couple of decades ago or so, I was in one of those not unusual relationships between a sophomore girl and a senior boy.  In true high school style, we were fixed up by friends at the beginning of my sophomore year and had an on-again-off-again flirtation throughout the fall and winter (too much of which involved me watching from a distance as his relationship with a perky senior named Suzanne played out in the halls between classes). But by spring they had broken up and one fateful Wednesday he called. From there we began what would be my first serious and my first sexual relationship.

By the time we had sex, we had been together for many months and professed our love for each other, I had nursed him back to puffy-cheeked health after he’d had his wisdom teeth out and he had spent a great deal of time with my family on Cape Cod. Though I can’t say it was a perfect relationship or the balance of power was entirely equal (he held some advantage by virtue of being older and more experienced), I can assure you that the sexual aspect of our relationship was consensual, mutually pleasurable, non-exploitative, honest, and protected from pregnancy and STDs. (Years later as a sexuality educator, these are among the litmus tests I would suggest to teens.)

The problem that really didn’t occur to me until last week, however, is that from a legal standpoint it was not a consensual relationship. In Massachusetts—which has one of the least nuanced laws regarding age of consent—a person under 16 cannot give consent, and I was three months shy of my 16th birthday that summer. So, though I saw it as a normal and mostly positive sexual experience, had authorities been notified of it for whatever reason, they would have declared it a crime.

This realization had my head swimming with questions. Should we really treat teenagers who have sex with other teenagers as criminals? Should our legal system play any role in regulating “consensual” teen sexual behavior? Is there a way to protect teens from exploitation without making them vulnerable to unnecessary prosecution? And what does all of this say about how society handles teen sex?

History and Purpose of Statutory Rape Laws

Statutory rape laws (which are called by a plethora of other names) refer to those laws that “criminalize voluntary sexual acts involving a minor that would be legal if not for the age of one or more of the participants.” The premise behind these laws is that until a certain age, young people are incapable of giving their consent for sexual behavior but the intent behind the laws has morphed over the 700 years or so since they were first codified.  The first known law, passed in Westminster England in 1275, made it illegal to “ravish” a “maiden” under the age of 12 (also the age at which a girl could legally marry) without her consent. Later laws reduced this age to 10 or 11. The result was that an underage girl did not have to show that she had struggled in order to prove that she had not given her consent as her older friends did.  Age of consent laws, therefore, made it easier to prosecute a man who sexually assaulted an underage girl.  The acknowledged purpose of these laws was to protect the young girl’s “chastity,” possibly so as not to ruin her future chances for marriage.

Though they remained largely unchanged for several centuries, the laws began to morph in the late 1800s and early 1900s as other aspects of societies and the role of women changed. European nations and U.S. states slowly raised the age to 13 and 14 under scientific arguments that this is when young women begin to menstruate and reach physical maturity. In the 1920s and 30s as the modern concept of the teenager began to emerge and movements formed to fight child prostitution and exploitation, the age of consent in most states was raised to 16 or even 18.

Not everyone agreed with these changes, however, some argued that teenage women “were sufficiently developed not to need legal protection,” and, moreover, that “by late adolescence girls possessed sufficient understanding about how to use the law to blackmail unwary men.”  Steven Robertson of the University of Australia Sydney points out in an article that the term “jailbait,” gained popularity in the 1930s because people recognized “teenage girls as sexually attractive, even sexually active, but legally unavailable.”

Still, even if people acknowledged young women as sexual, the general consensus was that the laws were necessary to protect them from exploitation:

“…in making it a crime for girls to decide to have sexual intercourse outside marriage, the law protected them from themselves and from the immature understanding that led them to behaviors reformers considered immoral.”

Feminists of the 1970s agreed that it was important to protect young people from exploitation but worked to ensure that these laws did not “unduly restrict the sexual autonomy of young women.” Part of this became efforts to make the laws gender-neutral and ensure an understanding of the rationale behind them:

“Aiming to challenge stereotypes of female passivity and growing concern about male victimization, they made it clearer that the laws concerned all youth—male and female—and that the laws protected them from exploitation rather than ensuring their virginity.”

During the debates over welfare reform in the mid-nineties—the same debates that brought us the federal government’s increasing investment in abstinence-only-until-marriage programs—a new rationale for these laws was thrown about.  Armed with the statistic that half the children born to adolescent women are fathered by adult men and that many of these children end up on welfare, some state and federal lawmakers began to argue that stricter enforcement of statutory rape laws would deter older men from having sex with teenage girls and would, therefore, solve the teen pregnancy problem.  California invested millions of dollars into increasing the prosecution of such cases; Delaware passed the “Sexual Predator Act of 1996,” and began “stationing state police in high schools to identify students who have become involved with adult men;” and Florida passed a law that declared “impregnation of a minor younger than age 16 by a male aged 21 or older” to be a reportable form of child abuse.

While some law enforcement officials thought this was the right approach, many advocates for adolescent health were skeptical at best. The deputy district attorney in California’s Tulare County told the L.A. Times:  “When we prosecute a few of these guys, we think it’ll make a lot of guys think twice.”  By contrast, law professor Michelle Oberman felt these laws would never act as a deterrent:

“Drawing a connection between enforcing these laws and lowering adolescent pregnancy rates flies in the face of everything we know about why girls get pregnant and why they choose to continue their pregnancies. The problem is much more complicated than simply older men preying on younger women.”

The argument about using age of consent laws to prevent teen pregnancy seems to have lost some of its momentum in recent years and the general consensus has returned to the idea that these laws remain important to protect young people (primarily young women) from exploitation.  The question remains, however, how do these laws distinguish between exploitative relationships and consensual relationships between young people?

Today’s Age of Consent Laws

The truth is that these laws cannot make such distinctions but lawmakers seem to have attempted to account for variations in relationships. The laws are certainly more nuanced than I had expected, though above anything else, these laws are complicated.  Each state has its own law and decides a number of factors for itself, including age of consent, minimum age of “victim,” age differential, and minimum age of “perpetrator” in order to prosecute.

  • Age of consent. This is the age at which an individual can legally consent to sexual intercourse under any circumstances.
  • Minimum age of victim. This is the age below which an individual cannot legally consent to sexual intercourse under any circumstance.
  • Age differential. If the victim is above the minimum age but below the age of consent, the age differential is the maximum age difference between the victim and the perpetrator where an individual can legally consent to sexual intercourse.
  • Minimum of age of defendant in order to prosecute. This is the age below which an individual cannot be prosecuted for engaging in sexual activities with minors.

Anyone else confused by these distinctions?

Only 12 states have a single age of consent below which an individual cannot consent to sexual intercourse and above which they can.  As I mentioned earlier, Massachusetts is one of those states—the age of consent there is simply 16. That leaves 39 other states where the laws are more complicated. I found that the only way I could follow them was to look at some specific examples. (These particular examples were spelled out in a report prepared for the U.S. Department of Health and Human Service in 2003 so there is possibility that some laws have changed since.)

In most states, the law takes into account both the age of the victim and the difference in ages between the victim and the perpetrator.  In my home state of New Jersey, for example, the age of consent is 16 but “individuals who are at least 13 years of age can legally engage in sexual activities if the defendant is less than 4 years older than the victim.”  Just so we’re clear, this means that the high school sexual experiences I described earlier which were illegal because we were on vacation in Massachusetts would have been just fine if we’d been at home.

In fact, some states focus on the age difference between the two individuals.  The District of Columbia, for example, says that it’s illegal to engage in sexual intercourse with someone who is under the age of 16 if the perpetrator is four or more years older than the victim.  But other states like to make it even more complicated by taking into account the age of both parties.  Washington state’s laws say that sexual intercourse with someone who is at least 14 but less than 16 is illegal if the defendant is four or more years older but changes the age gap for victims under 14 “in cases where the victim is less than 14 years of age (three years), further decreasing if the victim is less than 12 years of age (two years).”  This would mean that in both of these states the case of a 15-year-old girl with an 18-year-old boyfriend would not be illegal.

Other states, however, focus on the age of the perpetrator either on its own or along with the age of the victim.  Both Nevada and Ohio, for example, say that perpetrators cannot be prosecuted if they are under 18, thus the two 16 year olds are safe from prosecution but the 15-year-old’s 18 year-old boyfriend is not.

But wait, it gets even more complicated than that because many states make a distinction between sexual contact and sexual intercourse.  That’s right; there are instances in which activities that under different circumstances we might refer to as foreplay, sexplay, fooling around, or “outercourse” can be illegal depending on the age of the participants. In Connecticut, for example, engaging in sexual intercourse with someone who is less than 16 is legal under certain circumstances but sexual contact with someone who is less than 15 is illegal regardless of the age of the perpetrator.

So are we supposed to give our teens law books or maybe decoder rings as they head out on a weekend date? Don’t we think teens already have enough to worry about when it comes to choosing which sexual behaviors they are going to engage in with a partner?

Obviously, one problem with creating an age of consent law is that there is no universal agreement as to when it is “okay” for teens to have sex.  As Dr. Elizabeth Schroeder, the executive director of Answer, a national sexuality education organization that serves young people and the adults who teach them, explains:

“We always tell young people that there’s no one right age at which it’s okay to start being in a sexual relationship—because with a few exceptions, age is not necessarily the defining factor. We can all agree that, say, 11 or 12 is far too young to be in a sexual relationship, but as we get into the teen years, opinions vary. Readiness has to do with maturity, knowledge about and ability to practice safer sex, whether the decision is in line with that person’s values, etc. I’ve known teens who are more responsible about their sexual relationships than some people in their 30s.”

Clearly laws based solely on age do not see these distinction but it seems like those laws based on age differences aren’t getting it either.  We’ve all heard about cases like the ones discussed in the Daily Beast article and I’m sure we can all think of other nightmare scenarios; the mother who turns her daughter’s slightly older boyfriend in because she doesn’t like him, the young woman upset about being dumped who turns in her older boyfriend, or the guidance counselor who feels compelled to pass rumors on to authorities.  Many of the sexual experts I spoke with also expressed concern for gay and lesbian young people whom they felt were even more vulnerable to irate parents who want to “throw the book” at an older partner who they blame for “turning their kid gay.”

Outrage of These Laws

The expert were all distressed about the possibility of such cases and outrage over how these laws were being applied was a common refrain.  J. Dennis Fortenberry, a professor of pediatrics at Indiana University who researches adolescent sexual behavior said: “This enthusiastic jailing under the guise of protection is in fact an abuse of power and sexual rights.”  Pepper Schwartz, an author and sociologist at the University of Washington, referred to these laws as “a very blunt dangerous instrument for a very complex culturally variable circumstance.”  She pointed out that such laws would cause any mother of a son to fear “that your child could do something unwise but not aggressive or without invitation that would ruin his life forever.”

Many of the educators I spoke with pointed out just how normal and common sexual behavior among teens under the age of consent is.  One study found that 23 percent of 15-year-olds, 34 percent of 16-years-old have had vaginal intercourse.  According to the CDC’s Youth Risk Behavior Surveillance Survey, nearly two-thirds of high school student have had sex before they graduate.  Clearly we shouldn’t be sending them all to jail instead of college.  Fortenberry notes that given the average age of first sex is between 16 and 17, “the number of people you would have to prosecute if the law was uniformly and equally applied would staggering.”

And that is one of his main complaints with age of consent laws—they are not equally enforced or enforceable.  Teens are in many ways at the mercy of an enraged parent or an over-eager law enforcement official.  As one expert pointed out, “all you need is one police officer at lover’s lane.”  Another expert I spoke with told me a story of case she had learned about many years ago involving a girl who was not quite 13 and a 17-year-old boy who had sex one time. The incident was brought to the attention of a guidance counselor who reported it to the authorities because she was under 14.  Everyone involved in the case—both teens and both sets of parents—agreed that the sex was consensual and that if anything the girl was the aggressor in the incident.  While they were able to prevent the teenage boy from going to prison, despite this agreement, they were not able to keep his name off the state’s sex offender registry.

It is these registries that have experts most alarmed and upset because they have lifetime implications. States began to create such registries in the 1990s with the intention of protecting community members from violent sex offenders who were at a high risk of reoffending. The Reverend Debra Haffner, executive director of the Religious Institute, notes:

“These laws were never intended to place teenagers on offender registries for the rest of their lives.  What we’re seeing here is the confluence of two panics—that of teens having sex coupled with the panic about offenders.”

She added that age of consent and registry laws, “Equate all kinds of legal violations so that this teenager is listed with people who are serial rapists of children.”

What this Says About Our Approach to Teen Sexual Behavior

I have argued many times that our society takes an inherently negative view of teen sexual behavior. Despite the fact that the majority of individuals do have sex at some point during their teenage years, adults continue to treat it as a problem that needs fixing rather than an normal part of growing up.  And the application of these laws to teenage relationships seems like a natural—if not extreme—example of this.

These laws are based on the assumption that teens are incapable of giving consent and that adults need essentially to protect them from themselves.  Fortenberry, for one, disagrees with that premise:

“My understanding of the evolving capacity of young people as they move through the period of time after puberty is that as a rule it involves the capacity to make distinctions that would allow them to accept or decline sex.”

Most of the experts I spoke to also noted the inherent gender bias at the heart of these laws or at least the enforcement of them.  The laws perpetuate the age-old stereotypes of men as predators and women as helpless victims.  As written modern laws are meant to be gender neutral, but Haffner points out that:

“The culture still says that boys with older girlfriends get lucky and girls with older boyfriends are exploited.”

In doing so, says Schwartz:

“We negate the sexual agency of young women. We assume anything they do until a certain age has got to be victimization.”

This is a dangerous precedent to set when what we ultimately want to ensure is that young women are able to see themselves as equal participants in sexual relationships—who have the same rights and the same responsibilities when it comes to sexual behavior.

It is also a very dangerous message to send to young men who are so often told that “boys will be boys” and even expected to be aggressive when it comes to sex.  Schroeder argues that our culture “Wants boys who are predatory because that proves that they’re real men,” and that we teach them that “they can never say no to a sexual advance.”  It seems unfair then that there are laws that can punish young men for saying yes to what both parties believe is a consensual experience.

Other Implications
We also have to remember that these laws have implications beyond the obvious ones for the young people involved.  Reproductive health care providers, for example, fear the impact of these laws on their relationships with young people because in some states certain professionals, including educators and providers, must report any act or suspected act of statutory rape.  What does this mean for the health care provider whose client tells them of a much older boyfriend?

Mandatory reporting laws are perhaps even more complicated than age of consent laws because this is often covered not in the statutory rape laws but in the child abuse laws and while some states declare statutory rape to be child abuse, others do not. The HHS report explains:

“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.”

For example, in Georgia all sexual activity with someone under 16 is illegal but such acts are only reportable offenses if the perpetrator is more than five years older than the victim.   In some states the laws seem to contradict themselves.  In Utah sexual conduct with someone who is between 16 and 18 is only illegal if the defendant is 10 or more years older than the victim. However, sexual abuse includes all acts of sexual intercourse, molestation, or sodomy with someone under 18 regardless of the age of the defendant and sexual abuse is a reportable offense.

Needless to say, health care providers are confused at best when it comes to their responsibilities and such confusion works its way into the exam room.  What are health care providers supposed to do when a young woman reports being in a consensual relationship with an older male? Are they better off telling their client to keep the age of her partner to herself?  The fear of course is that in either case young women will be deterred from seeking the reproductive health care they need.

It is also worth noting that certain far right groups have used the reporting of relationships between younger women and older men as a means to attack reproductive health providers, such as Planned Parenthood, that provide abortion.  In 2002, for example, an anti-choice group, hired an actress to call abortion clinics across the country pretending to be a 13-year-old girl who was pregnant by her 22-year-old boyfriend. The goal of cold calling campaign was to “catch” these organizations failing to report statutory rape.  Other anti-choice organizations have used the cover of statutory rape laws to try and obtain health records of women who have gotten abortions.

What’s the Alternative?

Amid all the outrage over these laws, the experts with whom I spoke all understood that we do have an obligation to protect young people from exploitation. Haffner likened this to the need for sexual harassment laws in the workplace:

“We do have an interest in making it clear that there are laws to protect people when they don’t have power.”

Creating fair laws to do this, of course, remains a challenge.

One place to start, however, would be to change the classification of statutory rape laws in order to make a distinction between the teen lover whose partner was legally too young and the serial rapist or child molester.  As Schwartz put it:

“These laws started out with a good intention—to stop seduction of children by adults—but the teenage years are a very different proposition.  Even if we want to make it a crime for someone to have sex with a person more than three or four years younger or with a person under 13, sex offense isn’t the crime.  You’re not a sex offender.”

Or we might want to do away with our rush to punish teen sex and instead work to come to a better understand—both as individuals and a society—of what consent really is.  As educators, everyone I spoke to, wished for a national dialogue on these issues and for programs that would help teens handle consent issues. Fortenberry’s wish list included giving teens:

“Good refusal skills as well as relationship literacy that helps them understand what a good relationship is and how to judge when they feel truly ready to have sex.”

In my mind, pretty much all issues around teen sexual behavior come down to critical thinking.  We want teens to be able look critically at a situation and assess whether it’s a good idea to engage in any given sexual behavior.  In Talk About Sex, a resource aimed directly at teens that we created while I was at SIECUS, Monica Rodriguez and I asked teenagers to look at a number of factors when deciding what they wanted to do in a sexual relationship.  We suggested they take into account the relationship (old friend, new acquaintance), the specific situation (upstairs at a party, in a parked car), and their motivations (to feel closer to a person, to gain popularity, to keep a partner from breaking up with them). We also suggested that they ask themselves if they had the other person’s consent, if everyone was being honest, if they felt safe, if they felt exploited, and if they were protecting themselves and their partner from pregnancy and STDs.

I believe that given the skills to think critically about all of these aspects of sexual relationships many young people would themselves weed out the relationships that we as adults are most concerned about—whether it’s a 15-year-old girl admitting that having sex with her 19-year-old boyfriend was really an attempt to prove she was mature enough to be with him or a 20-year-old boy questioning the wisdom of dating someone who is still in high school.  But it is our responsibility as adults to teach them how to assess these situations.

It is also our responsibility as adults to think critically ourselves about the benefits and risks of the laws we make and we how we apply them.  No matter how good the intent behind it, there is something wrong with a law that forces a judge to brand a young man as a rapist thereby severely limiting his opportunities for housing and employment for the rest of his life simply for having sex with someone before her 16th birthday. And it is our responsibility as adults to fix it.