This post is the first in a three part series on the use of criminal law to police teen sex.
A recent study by Human Rights Watch suggests that statutory rape law is a poor tool for reducing teen sexuality. Their study and my forthcoming article, Law’s Limits: Regulating Statutory Rape Law, published by the Wisconsin Law Review concur on this point. Consider an unfortunate case that underscores the importance of revisiting statutory rape law prosecutions in the United States. In 2011, J.L. was adjudicated a delinquent, charged with first‑degree rape, and convicted under the South Dakota statutory rape statute. According to the South Dakota Supreme Court, J.L., a fourteen-year-old, “engaged in consensual sexual intercourse with his girlfriend, who was twelve” and only fifteen months his junior. Despite both adolescents consenting to sex in this case, in the state of South Dakota, J.L.’s conviction will result in legal and extralegal 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. This is because J.L.’s “victim” was under the age of thirteen.
In a provocative commentary, buried in a footnote, the South Dakota Supreme Court references the harsh penalties J.L. and other minors who engage in consensual sex with minors will encounter. The court explains, “[i]t appears that J.L. will be required to register as a sex offender for life.” In other words, J.L.’s “mark” as a sexual predator burdens him with the same potent and socially stigmatic punishment as that of a convicted, middle-aged pedophile who rapes a minor. This prosecution and others similar point to the absurd results in many statutory rape cases involving teens who have consensual sex with teens.
As I note in the forthcoming article, had J.L.’s girlfriend been an adult and a nonconsensual sexual act occurred, he could qualify for release from the sex offender registry list after only ten years, rather than the life-term that now serves as his punishment. In South Dakota, consensual sex between minors may result in a more severe punishment than nonconsensual sexual encounters either between adults or between a teenage male and an adult woman. But, are such outcomes just? Do they reflect broad social consensus? Or do such prosecutions lead to absurd, untenable results?
In the coming week, my blog posts will address these and other relevant questions.