Does statutory rape discriminate against boys?


A sharply divided Massachusetts Supreme Judicial Court recently issued a ruling with head spinning legal and ethical implications. The question at issue: do statutory rape charges discriminate against boys? According to the SJC, that claim can be raised in a defense against the charge of statutory rape.

The facts of the case are not in dispute. According to The Boston Globe:

The case … involved a high school freshman football player who is accused of engaging in various sex acts from August to October 2007 with three girls. Two were 12, and the other was 11.

“None of the complainants reported being afraid of the boy’s behavior,” Chief Justice Margaret Marshall wrote for the majority.

The law on statutory rape is quite clear:

Whoever unlawfully has sexual intercourse … [with] a child under sixteen years of age shall … be punished by imprisonment in the state prison … [or] any term in a jail or house of correction …

Additional case law has further refined the requirements of the statute:

The offense of statutory rape … may be committed with or without any knowledge on the defendant’s part of the age of the victim.

Consent is not a defense to a charge of statutory rape.

The only elements the Commonwealth must prove are (1) sexual or unnatural sexual intercourse with (2) a child under sixteen years of age.

Based on the facts of the case, and the law, the District Attorney charged the boy with statutory rape. There is no question that the acts occurred, no doubt about the age of the girls, and no defense in claiming that the acts were consensual. Therefore, the boy’s lawyer offered a novel assertion: Since all parties were under the age of consent, prosecuting only the boy is sexual discrimination.

The boy’s lawyer should be commended for offering a novel defense. The SJC should have their collective heads examined for agreeing with it.

The theory behind statutory rape law is that children under the age of 16 are incapable of giving legal consent to sexual activity. They may desire such activity, and they may be willing participants, but their consent carries no legal weight. That’s because they are too young to understand the implications of sexual activity, and, by virtue of their age, are easily manipulated by those who are older. Although the law traditional was originally intended to protect young girls, it has been extended to protect boys as well.

In recent years, the dramatic increase in teen sexual activity has led to a reappraisal of statutory rape laws. So called, “Romeo and Juliet” exceptions have been added in many states. Generally, these exceptions allow consensual sex between partners over age 15, provided that one partner is not substantially older than another. In states with “Romeo and Juliet” exceptions, sex between a 15 year old girl and her 17 year old boyfriend is not statutory rape, but sex between a 15 year old girl and her 45 year old softball coach would still be considered statutory rape, regardless of whether the girl consented.

The statutory rape laws are gender neutral. Sex between a 15 year old boy, and his 45 year old coach is also statutory rape. Most prosecutions for statutory rape are against men and boys, because the male is usually the older party and because the male often initiates the sexual contact. The Massachusetts SJC has essentially ruled that this disparity in charges is evidence of sexual discrimination.

The boy’s defense received the support of an amicus (friend of the court) brief filed by the Women’s Rights Project and the Reproductive Freedom Project, which are part of the American Civil Liberties Union. According to ACLU lawyer Sarah Wunsch:

“We should not be enforcing the law based on stereotypical notions about girls as not being capable actors in the same way that boys are… They are doing what teenagers are doing today. They are fooling around sexually, and the girls are participants in the same way that boys are.”

Wunsch said statutory rape laws are rooted in an old concept that a daughter was the property of her father. Echoes of that thinking can be found today when prosecutors criminalize sexual activity involving girls, she said.

“Our view is that there is still a very strong pattern of district attorneys charging based on the notion of having to protect girls,” Wunsch said. “But girls can enjoy sex and be sexually active. They are not simply victims.”

Have these people lost their minds? The three girls in this case are in elementary school! Claiming that girls in elementary school  “can enjoy sex and be sexually active” is a willful misrepresentation of everything we know about children and their decision making abilities.

It is instructive to consider why lawyers for the Women’s Rights Project are willfully misrepresenting the ability of young girls to give consent to sexual activity. In their minds, they appear to believe that they are striking a blow for women’s rights. Hence Wunsch’s mention of outmoded ideas of girls as the father’s property and women as incapable of enjoying sex.

In an effort to protect women, Wunsch, and the SJC are willing to sacrifice young girls. Both willfully ignore the contemporary pressure toward early sexualization of young girls, and the cultural pressure for girls to accede to the demands of boys, whatever those demands might be.

Moreover, the SJC and Wunsch willfully ignored the ages of the girls and the age difference between the girls and the boy. The boy was charged because he was older, significantly older. He was in high school; they were in elementary school. He was not charged because of repressive ideas about female sexuality, and it is disingenuous at best to make that claim.

This case is about child protection, not about female sexuality. Elementary school girls are incapable of giving consent to sexual behavior, period. Elementary school girls can and should be protected against the sexual advances of older boys and men, period. It is astounding that the majority on the SJC could not tell the difference. In their misguided attempt to advance women’s rights, and fight sexual discrimination, the SJC has willingly sacrificed young girls to the predatory advances of older boys and men.