Context and Questions

Several basic questions permeate the discussion of statutory rape laws. A clear understanding of these questions will help put proposed legislation in context and focus discussion of the legislation. We encourage legislators and their staff to consider the following:

  1. What is the purpose of statutory rape laws?

  2. What does criminal prosecution mean?

  3. Are the purposes furthered through the criminal laws?

  4. What other State efforts and policies need to be considered?
  • What is the purpose of statutory rape laws? Laws making sex with minors a crime and the proposed changes to these laws may have more than one purpose. Generally, the more specific a State can be in outlining a laws purpose or purposes, the better. Knowing the specifics will further discussion and help the State develop and pass laws that accurately address what the State determines to be prosecutable.

  • What does criminal prosecution mean? Sometimes multiple purposes in laws lead to different results. For example, if laws are aimed at “predatory, exploitative” behavior, it is critical to define what “predatory and exploitative” behavior is. If laws are designed to encourage responsibility by discussing marriage and paternity, criminal prosecution may be in order.

    Reviewing the laws and practices in the particular State will educate legislators about what outcomes may be expected from criminal prosecution for statutory rape. It may mean one or more of the following outcomes: conviction of a felony, conviction of a misdemeanor, incarceration, probation, child support, sex offender therapy, civil penalties, and registration as a sex offender. Further, legislators will understand the circumstances that must be met for an offender to receive this charge and any conditions.

  • Are the purposes furthered through the criminal laws? In the recent ABA survey of 21 States that were considering proposed legislation, a number of different motivations were observed on the part of State legislators, including:
    • General intent to protect minors from sexual intercourse.

    • Desire to protect minors below a certain age from predatory, exploitative sexual relationships—for example, with much older partners.

    • Prevention and/or reduction of the incidence of teen pregnancy.

    • Reduction of the number of young mothers on welfare.

    • Responsibility and accountability in sexuality and parenting.

A question often considered is whether the laws purposes are furthered by criminal prosecution. With purposes clearly in mind, any proposed change to the law can be better evaluated. This evaluation is best aided by reviewing research studies, researching local- and State-level statistical information, holding hearings to obtain assessments by criminal justice and agency professionals, and conferring with legislative staff in other States. Such an evaluation should help legislators determine whether the impact of the proposed legislation is likely to further the laws purposes.

For example, if a proposal is aimed at reducing teen pregnancy and/or reducing reliance on welfare, examination of the States statistics may clarify whether the proposal is likely to have the desired impact. While national statistics may suggest an answer, State or local evidence is critical. In North Carolina, statistics presented by the North Carolina Organization for Women suggested that increased enforcement of the statutory rape laws would not reduce teen pregnancy in that State.

  • What other State efforts and policies need to be considered? States and localities may have a variety of efforts under way to reduce teen pregnancy. They may work with adolescents on sexuality education, which may or may not be enhanced by new legislation. For example, the ABA survey revealed that some States are struggling to balance the desire to deter exploitation through statutory rape laws with the concern that focusing on prosecution will result in teens failing to seek appropriate health care, including contraceptives and prenatal care. Some States find that this struggle may occur when States consider raising the age of the minor subject for protection under statutory rape laws.

Efforts to increase reporting of statutory rape have also resulted in a struggle to balance conflicting concerns. Some States have reached consensus by defining the scope of these laws to focus prosecution efforts on cases perceived as exploitative. For example, a recent Florida statute prohibits persons 24 or over from sexual activity with 16- and 17-year-olds. This effectively requires at least a 7-year age gap for these older minors. Floridas legislators are comfortable defining exploitation as a large age gap.

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