Written by attorney David Joseph Parsons

Statutory Rape: A General Overview

Statutory rape is perhaps one of the most misunderstood areas of criminal law. Many laypeople do not understand the legal issues involved. Some of the issues tied to statutory rape are; the nature of strict liability crimes and consent. What follows is a general and brief guide to these and other issues.

Statutory Rape in General

The term "statutory rape" is used in some jurisdictions to refer to a criminal act in which an offender has sexual relations with a person under the age of legal consent and to whom the offender is not married. The term is a generality and very few statutes (e.g. penal codes, codes of criminal conduct, etc.) contain the actual term "statutory rape" in their language. Usually, the crime is described as a "sexual assault" or by other "unlawful carnal knowledge" language.

The crime of statutory rape is often thought of today as an ancient and unnecessarily harsh law. Legal scholars tend to agree that the motivation behind the creation of such laws was to preserve the chastity of young women as a commodity of their father's and not out of any attempt to preserve the morality of society. The statutes are now enforced universally and protect young men as well. The rationale behind statutory rape laws in modern times is to protect naive or innocent victims who are felt too young to consent.

The statutes usually define a minimum age for the victim, such as "over 13 years of age," as a lower limit and an upper limit, such as "16 years old," as to when the crime would apply. Acts with a victim below the minimum age often fall under crimes concerning "child molestation." Also, most statutes attempt to restrict applicability of this felony crime by requiring the offender to be some years older than the victim, under which, an offender often then is charged with a misdemeanor. Many statutes allow for the offender to be the same age as the victim and still be prosecuted for the felony. Regardless of whether classed a felony or misdemeanor, a conviction for statutory rape will often cause the offender to be required to register as a sex offender.

Strict Liability

Statutory rape is a "strict liability" crime and will subject the offender to punishment regardless of whether the victim consented. Strict liability crimes greatly diminish or eliminate the defenses allowed to the offender.

In a criminal law context, "strict liability" is an act or omission punishable as a crime that does not require a mens rea or "guilty mind." A more familiar strict liability violation, an infraction in this case, is simple speeding. The fact that a driver might not know the speed limit or that the speedometer is broken will not absolve the driver of liability as long as the driver was exceeding the speed limit. In other words, the driver's state of mind does not matter but rather the act of speeding.

A crime usually requires an actus reus, or guilty action and a mens rea, or guilty mind. The actus reus is the act, here having sexual relations with a victim under the age of legal consent. The mens rea, does not apply and therefore, any defense based on the mental state of the offender, will not be allowed. For instance, consent by the victim, even if freely given, will not be taken into consideration as to the establishment of guilt. Being mistaken often does not matter.

Equally unimportant is the state of mind of the offender. It does not matter if he maliciously, knowingly, or intentionally committed the act. However the so-called "inchoate crimes," attempt, conspiracy, and solicitation, all require a mens rea. For example, there can be no "attempted" or "conspiracy to commit" statutory rape. Furthermore, the victim cannot be found guilty as an accomplice because he or she is of the protected class the statute is designed to protect.

In the case of statutory rape, strict liability applies. Although some states allow for a he or she "looked old enough" mistake defense, most will find a violation even if the victim consents, shows the offender a fake I.D. and birth certificate, the victim looks older, and has his or her family swear up and down that the victim is of age. It is probably best to think very carefully and be very cautious about having sexual relations with someone you suspect might not be of age.

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