Across the country, children under the age of fourteen are being convicted of rape for engaging in consensual sex with children of similar age. In Utah, a child who commits “more than five ‘separate acts’ of sexual touching,” can be prosecuted for “aggravated sexual abuse of a child.” In South Dakota, a minor can be adjudicated a delinquent and guilty of first degree rape for one act of sexual penetration, regardless of consent. Wisconsin’s law reads similarly. To be clear, I am not referring to the Romeo and Juliet cases (the male is 18 and the girl is 16). No, I’m speaking of children as young as eleven. These adolescent violators now end up on sex offender registries—some for life. In some states, including Utah, adolescent fondling is considered sexual abuse of a child as are: attempts to touch the buttocks, breasts, or “intent to arouse or gratify the sexual desire…” Even consenting children will always be deemed “victims” in states that take this approach.
In 2011, J.L. was adjudicated a delinquent, charged with first-degree rape, and convicted under the South Dakota statutory rape statute. J.L. had no prior convictions, nor other violations of the law that might suggest a propensity for crime, violence, or danger to the community. Indeed, the first degree rape conviction did not stem from a violent, coercive sexual encounter with an adolescent, rape of an adult woman, or from forced sex with a child or infant. Rather, according to the South Dakota Supreme Court, J.L., who was fourteen, “engaged in consensual sexual intercourse with his girlfriend [], who was twelve,” and only fifteen months his junior. Ironically, in the state of South Dakota, J.L.’s conviction will result in legal and extra-legal penalties far more severe than that of an adult rapist who commits a sexually violent act against a college peer, a random woman, or during the commission of another crime.
For all the recent controversy about rape, its legal and political definitions, politicians have ignored the uneven, punitive punishments resulting from statutory rape laws’ harsh application against minors who fornicate with minors. Indeed, no coherent framework has been offered by politicians that respond pragmatically to the empirical realities of adolescent sexuality. Neither federal nor state legislatures offer a coherent, well articulated approach to militate against the harshest criminal punishments demanded by statutory rape provisions and sex offender registries.
Few scholars wrestle with the more nuanced contemporary applications of statutory rape law, despite recent decades of absurd results and disproportionately harsh penalties against teens. Important scholarship implicating the racial impacts of rape convictions generally, and statutory rape law specifically, tends to provide a microscopic analysis that fails to adjust the lens to cover the broader socio-economic considerations and the core, underlying issue—policing sex among adolescents. Equally, the historic feminist concerns about rape and sexuality tend to root toward a victim framework, which suggests that adolescent girls lack agency as well as the intellectual, moral, and physiological capacities to consent and desire sexual contact. Nor have scholars broadly taken up the constitutional implications of cruel punishments so severe and unusual that they brand children engaging in activities that would otherwise legal for adults for life. Thus, important contributions to a rapidly changing sphere of law, offer incomplete analyses or unworkable frameworks to address not only contemporary intimacies among adolescent children, but the severe criminal law punishments. Unfortunately, this crisis has gone mostly unnoticed.
My forthcoming article in the Wisconsin Law Review examines statutory rape cases of the last decade and submits that both the apparatus to police sexual violence against minors—statutory rape laws–as well as their application against consenting minors create legally untenable, absurd results that frequently impose legal and extra-legal burdens on minors that exceed that of adult, convicted rapists. The article offers a comparative institutional analysis approach to suggest an alternative method to sex contact between minors.
