The big news in criminal law this week has been the ongoing New Hampshire trial of Owen Labrie, a prep-school student accused of raping a 15-year-old fellow student. As I write this, the jury in that case is considering its verdict. While the case has gained attention in large part due to the prestige of the school and the unsavory details that have emerged regarding an apparently longstanding “senior salute” tradition in which male seniors compete to receive the most sexual favors, one legally interesting detail is that Labrie is facing a litany of charges based in part due to the age of the female student. As to those offenses, her consent to their activities (a hotly disputed issue at trial) is irrelevant.
Statutory rape laws, which make it a crime to have sex with a person under a certain age regardless of that person’s consent, differ significantly from state to state. Ideally, such laws address the real need to deter and punish predatory sexual behavior aimed at children without treating children who choose to engage in sexual behavior with one another as criminals. In Massachusetts, 16 is the age of consent set by statute and it is a crime for anyone—including another child under the age of 16—to have sexual intercourse with a child under that age. (A separate statute concerns sexual activity that doesn’t include intercourse.) The child’s consent and a lack of knowledge of the child’s age are not defenses. That crime is aggravated where the difference in age between the accused and the victim is more than 5 years and the victim is under 12, or there a more than 10-year age gap and the victim is 12-16, or if the accused is a mandatory reporter. The opposite is not true, however—a lesser difference in age (or no difference in age) is not a defense.
Massachusetts law thus leaves perfectly open the possibility that, for example, a 14 year-old could be charged with statutory rape for having sex with a 15 year old—or that both children could be charged with a crime. (In the first scenario, the defendant could seek to assert a defense of selective prosecution for not charging the alleged victim as well, and the Massachusetts Supreme Judicial Court did uphold an order requiring the Commonwealth to provide the defendant with discovery to allow him to advance such a claim in one 2009 case.) Penalties for statutory rape may be severe: the statute allows a court to sentence defendants to any amount of time, up to life in state prison, and defendants convicted of the crime are required to register as sex offenders.
Many other states have so-called “Romeo and Juliet laws” holding that sex with a consenting partner who is underage is not statutory rape unless there is some specified age difference between the parties. In New Hampshire, where Labrie is facing charges, it is a Class B felony to “engage in sexual penetration” with a person under 16 but older than 13 if the age difference between the parties is 4 years or more, but only a misdemeanor, not carrying a sex offender registration requirement, if the age difference is 4 years or less. Labrie, 18 at the time, is charged only with the misdemeanor offense, but in Massachusetts he would be facing the equivalent of the felony charge. (Labrie is still charged with numerous other felonies, because the prosecution alleges that his actions were not consensual.)
There is a proposal to change the Massachusetts law pending in the legislature. An omnibus juvenile justice bill would make numerous changes and reforms to juvenile justice in the state. One of those changes is to the statutory rape law. The bill would maintain 16 as the age of consent, but would carve out exceptions where the two parties are close in age. If the minor is 15, a defendant who has sex with him or her is guilty of statutory rape only if he or she is more than 4 years older. If the minor is under 15, the defendant is guilty only if he or she is more than 3 years older, and if the minor is under 12, the defendant is guilty only if he or she is more than 2 years older. The bill would also appropriately treat children charged under the statute as juveniles, requiring that prosecutions of defendants under 18 for statutory rape be brought in the juvenile court. This law would far better protect all children than the current statutory scheme in Massachusetts, which leads to unintended and inappropriate outcomes for many children that it selectively treats as criminals for conduct that many others engage in without consequences.