I conclude Part III in this series from Uganda—a nation recovering from what one doctor describes as a “genocide” from HIV and AIDS. Parts I and II can be found here and here.
As a society, do we really care that teens and preteens have sex? On the one hand we care too much—so much so that the criminal law is the central form of regulating teen sex. This form of regulation is derived from statutes that treat all sexual behavior alike, even though consent and context may drastically vary. In Law’s Limits: Regulating Statutory Rape Law, found here, I articulate why the criminal law approach, filtered through the judiciary, leads to absurd results. These absurd results include the extralegal punishments inflicted on youth who are punished for participating in consensual sexual activity, such as lifelong registration as a sex offender. These types of consequences and outcomes are problematic because they are morally wrong and foster significant harms across a series of areas, including creating social status harms, by reifying racial and homosexual stereotypes. The criminal law approach also leads to cruel and unusual punishments in an era where sex offender registries are increasingly the norm and a condition of release from prison. On inspection, such punishments are disproportionate and unjustified.
On the other hand, maybe we care too little about teen sexuality. The notorious Steubenville, Ohio rape case bears this out (where the rape victim suffered backlash and threats), as do the high rates of HIV, sexually transmitted diseases, and syphilis infections among teens, and teens’ relatively high use of alcohol and drugs prior to sex. Parents fail to talk to their children about sexuality when children most need to understand it: prior to commencing sexual experimentation. Empirical data shows that fathers barely speak to their daughters about sex and these omissions may impact their daughters’ sexual attitudes and behaviors. Governors and prosecutors sometimes demonstrate selective interest in teen sexuality—when it involves specific ethnic populations or the poor. This failure to care enough is manifested in the criminal law approach to shaping teen sex norms, rather than the public health where it is most justified.
So, how might we move forward? In the Wisconsin Law Review, I argue that alternative courts may be one solution—albeit with certain downsides. Alternative courts rely on judicial expertise and interest in a discreet area of law where policy concerns, social justice, and the law intersect. In other words, alternative courts engage in problem solving. Consider the case of Frank Rodriguez and Nikki Prescott. The couple met in a Texas high school and began dating shortly thereafter. Technically, Frank was an adult when they began dating as he was a nineteen-year-old high school senior, and Nikki was a fifteen-year-old freshman. They dated with the permission of Nikki’s mother and even attended prom together. They began a sexual relationship, which Nikki claims she encouraged and her mother helped her to obtain birth control. After an argument with her daughter, Nikki’s mother contacted police and claimed that Frank sexually assaulted her daughter. The mother later recanted, but by that time, police claimed it was too late. More can be read about their story here, here, and here.
The bottom line is this, prosecuting consensual teen sex creates extra-legal punishments and burdens that cannot be justified. Until such statutory rape law is reframed, exempting consensual sex among minors, specialty courts may be well positioned to take on the thornier cases involving youth sex, including cases like that above. Such courts could be prepared to hear cases that involve good faith and most cases of consensual teen sex involves that—good faith. Ultimately, consensual teen sex has no place in the criminal law and even specialty courts are not a panacea. That said, they may be one alternative that spares thousands of youth from being branded as sex offenders for the rest of their lives.
