Flynn: All The Kids Are Doing It

FLYNN FINAL REVIEW.
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All the Kids Are Doing It: The Unconstitutionality of Enforcing Statutory Rape Laws Against Children & Teenagers
DANIELLE FLYNN*
ABSTRACT
Today, nearly 50% of high school students admit to having sex by the age of sixteen. According to one study, the number of instances of statutory rape involving an adolescent offender exceeds seven million per year. Because teenage sexuality is so commonplace in the United States, it has become a societal norm, and to prevent unfair prosecution, most states have created age-gap provisions to absolve minors of criminal liability. However, some states, including Massachusetts, have neglected to implement any protection against unjust punishment for children and teenagers, ignoring the evolving standards of decency within modern American society. This Note will argue that in all situations where juveniles who are close in age or both under the age of consent engage in consensual sex, there is no real culpability and there are no penological justifications for conviction and punishment, so any form of punishment would be cruel and unusual under the Eighth Amendment. In addition, this Note will argue that age-gap provisions are necessary to comport with the United States evolving standards of decency. Punishing teenagers and children for engaging in sexual relations with their peers serves no purpose in actuality other than to destroy the lives of those who are chosen, often invidiously, to be prosecuted. As such, states that continue to criminalize such behavior must enact age-gap provisions in order to adhere to constitutional requirements.
* Juris Doctor, magna cum laude, New England Law | Boston (2013). B.A., Political Science, Manhattanville College (2010). I would like to thank my family and friends for being my sounding boards throughout the writing process. I would also like to thank James Corbo, Esq., Laura Alfring, Esq., and Melanie Roberts, Esq. for all of their support and advice.
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INTRODUCTION
n 2003, a seventeen-year-old athlete and honor student, Genarlow Wilson, had oral sex with his fifteen-year-old girlfriend.1 Despite the fact that both were high school students who engaged in the act consensually, Wilson was convicted of statutory rape.2 Wilson was sentenced to ten years in prison without the possibility of parole.3 As a sex offender, Wilson was required to be placed on the sex offender registry for the remainder of his life.4 At the time, Georgia did not have an age-gap provision in place to protect adolescents from criminal responsibility for engaging in such sexual activity.5 Today, nearly 50% of high school students admit to having sex by the age of sixteen.6 According to one study, the number of instances of statutory rape involving a juvenile offender exceeds seven million per year.7 Because teenage sexual activity is so commonplace in the United States, it has become a societal norm, and to prevent unfair prosecution for it, most states have created age-gap provisions to absolve minors of criminal liability.8 However, some states, including Massachusetts, have neglected to implement any protection against unjust punishment for children and teenagers, ignoring the evolving standards of decency within modern American society.9 Often, statutory rape cases involving juvenile offenders are brought when a parent informs law enforcement that their son or daughter was the victim of forcible rape.10 Prosecutors then charge a defendant with rape, and upon discovery, no forcible component may be present.11 However, where no age-gap provision exists, the juveniles can still be prosecuted for
Michael Lindenberger, Wilsons Sentence Overturned, http://www.time.com/time/nation/article/0,8599,1677087,00.html.

2 3
TIME
(Oct.
27,
2007),
See id. Id. 4 Id. 5 Id. Wilsons sentence was later vacated following Georgias adoption of Romeo and Juliet laws. Id. 6 Michelle Oberman, Regulating Consensual Sex with Minors: Defining a Role for Statutory Rape, 48 BUFF. L. REV. 703, 703-04 (2000). Id. See BRITTANY LOGINO SMITH & GLEN A. KERCHER, CRIME VICTIMS INSTITUTE, CRIMINAL JUSTICE CENTER, ADOLESCENT SEXUAL BEHAVIOR AND THE LAW 8-10 (2011), available at http://www.crimevictimsinstitute.org/documents/Adolescent_Behavior_3.1.11.pdf [hereinafter SMITH & KERCHER].
8 9 7
See, e.g., MASS. GEN. LAWS ch. 265, 23 (2010). See, e.g., Commonwealth v. Washington W., 928 N.E.2d 908, 910 n.1 (Mass. 2010). 11 See, e.g., id.
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rape, as no consent defense is available.12 All that must be proven is the act itself, regardless of the nature of the act and the relationship between the defendant and the victim.13 Even if a prosecutor proceeds to trial arguing that the sexual activity was forced, the accused cannot use a consent defense to escape conviction.14 The adolescent will face severe penalties, such as mandatory sex offender registration.15 This presents a very realand unconstitutionalproblem in the criminal justice system.16 Some form of culpability is required in order to punish an individual for a crime, and penological justifications must be met.17 Without these requirements, holding an individual accountable for such a crime would violate the Eighth Amendment of the U.S. Constitution.18 In almost all situations where juveniles are either close in age or both under the age of consent and engage in sex, there is no actual culpability and there are no penological justifications for conviction and punishment.19 Accordingly, any form of punishment would be cruel and unusual under the Eighth Amendment.20 Thus, states, such as Massachusetts, should create age-gap provisions for statutory rape in order to safeguard against the unjust and irrational prosecution of minors.21 Part I of this Note will discuss the history of statutory rape laws in the United States, and the transformation of those laws reflecting societys changing attitude toward sexuality and protecting juveniles. Part II will discuss possible constitutional constraints when statutory rape laws do not contain age-gap provisions. This includes both the Eighth Amendments cruel and unusual punishment clause, the vagueness doctrine, and selective prosecution. Part III of this Note will argue that statutory rape provisions that do not protect innocent adolescents from prosecution are constitutionally
12 Telephone Interview with James D. Corbo, Senior Attorney, Committee for Public Counsel Services Youth Advocacy Division (Aug. 27, 2012). 13 Id. 14 Id. 15 Amanda Eden, Why Massachusetts Needs a Romeo and Juliet Law, RAPPAPORT CENTER FOR LAW AND PUBLIC POLICY (May 21, 2011), http://rappaportbriefing.net/2011/05/21/whymassachusetts-needs-a-romeo-and-juliet-law/.
See infra Part III. Graham v. Florida, 130 S. Ct. 2011, 2022 (2010); Meredith Cohen, No Child Left Behind Bars: The Need to Combat Cruel and Unusual Punishment of State Statutory Rape Laws, 16 J. L. & POLY 717, 744-48 (2008).
17 18 19 20 21
16
See Cohen, supra note 17, at 746-48. See infra Part II. See infra Part III. See infra Part V.
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invalid, as they do not comport with societys evolving standards of decency and do not attain the requisite culpability to justify punishment. Part IV of this Note will argue that the laws indefinite nature and the reliance on prosecutorial discretion result in the unjust selective prosecution of teenage boys, demonstrating these statutes unconstitutional vagueness, due to arbitrary enforcement. Finally, Part V will use Massachusetts as an example for needed legislative reform, and call for the adoption of the Model Penal Codes four-year age-gap provision into state law. I. Statutory Rape Laws in the United States
Statutory rape22 laws prohibit sexual intercourse with an individual below the age of consent, as defined by statute, regardless of whether it is against the victims will.23 The age of consent varies amongst the states.24 Thus, state statutes determine at what age an individual is treated as capable of consenting to sexual activity.25 Understanding the problems with current statutory rape laws requires an examination of the history of the laws inception into United States jurisprudence, as well as the policy rationales behind their adoption and enforcement.26 A. The Purpose of Statutory Rape Laws The most fundamental purpose for enacting and enforcing these laws in modern society is to protect minors who are deemed unable to consent.27
Statutory rape is the most popular term for all crimes considered to be rape, indecent assault, or sexual assault due to the age of the victim and his or her strict inability to consent, and thus, this Note will use the term to describe the offense. See CAROLYN COCCA, JAILBAIT: THE POLITICS OF STATUTORY RAPE LAWS IN THE UNITED STATES 164 (2004). Many state statutes use different vernaculars to describe the same concept. See id. (The names include statutory rape, rape in the nth degree, . . . sexual assault in the nth degree, statutory sexual seduction, sexual abuse of a minor, child sexual abuse, child molestation, child rape, and indecency with a child.). 23 BLACK'S LAW DICTIONARY 1288 (8th ed. 2004). 24 MATTHEW WAITES, THE AGE OF CONSENT: YOUNG PEOPLE, SEXUALITY AND CITIZENSHIP 46 (2005). For example, the age of consent in Massachusetts is 16, while the age of consent in California is 18. Age of Consent Chart for the United States 2012, http://www.ageofconsent.us/ (last visited Jan. 16, 2013). 25 Stephen Robertson, Age of Consent Laws, CHILDREN & YOUTH IN HISTORY, http://chnm.gmu.edu/cyh/teaching-modules/230 (last visited Jan. 16, 2013). See COCCA, supra note 22, at 6, 10. See id. at 7. Other purposes include preventing juveniles from engaging in intercourse when they are too young, preventing teenage pregnancy, and dependence of young mothers on welfare. See A Practical Guide to D.C. Law for Teens and Young Adults, DCBAR, http://www.dcbar.org/for_lawyers/sections/criminal_law_and_individual_rights/law_guide_f
27 26
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According to Carolyn Cocca, [a]ge acts as a proxy for a power differential that is suspect of coercion.28 Society has a clear interest in preventing predatory, exploitative sexual relationships.29 In some cases, engaging in coerced sexual contact as a juvenile can lead to psychological or physical harm due to a lack of developed judgment.30 Thus, many scholars believe that statutory rape laws serve as a public welfare offense designed to safeguard the nations youth as a whole.31 The recent trend in many states to adopt various age-gap provisions, or Romeo and Juliet exceptions, demonstrates that this broad protection is becoming increasingly narrow because society has an interest in protecting juveniles from adults exploiting them, rather than an interest in protecting juveniles from individuals their own age.32 B. The Inception of Statutory Rape Laws in the United States Under English common law, statutory rape was not a crime until it was codified in the Statute of Westminster of 1275, which defined the offense as sexual intercourse, by a male, with a female under twelve years of age.33 These statutes were part of the common law brought to the United States by early coloners; some states chose ten as the age of consent, while others chose twelve.34 When these laws were originally enacted, lawmakers were much more concerned with protecting female premarital chastity as opposed to the inability of a child to consent to sexual activity.35 Initially, the crime was one of strict liability, but two defenses were later adopted mistake of age and the victim being sexually experienced.36 Statutory rape laws reached a turning point at the turn of the Twentieth Century.37 Following the raise of the age of consent to sixteen,
or_teens/relationships.cfm#3 (last visited Feb. 20, 2012) [hereinafter D.C. Law for Teens and Young Adults]. COCCA, supra note 22, at 19. See D.C. Law for Teens and Young Adults, supra note 27. 30 Jane A. Minerly, The Interplay of Double Jeopardy, the Doctrine of Lesser Included Offenses, and the Substantive Crimes of Forcible Rape and Statutory Rape, 82 TEMP. L. REV. 1103, 1112 (2009). 31 Catherine L. Carpenter, On Statutory Rape, Strict Liability, and the Public Welfare Offense Model, 53 AM. U. L. REV. 313, 314-16 (2003).
29 32 See, e.g., Matthew J. Malone, Age Gap in Teenage Sex Continues to Stir Debate, N.Y.TIMES (June 24, 2007), http://www.nytimes.com/2007/06/24/nyregion/nyregionspecial2/ 24topicct.html (discussing potential changes in New Jersey law during a case involving an offender two years and three months older than his victim). 33 34 35 36 37 28
Statute of Westminster I, 3 Edw., c. 13 (1275) (Eng.). COCCA, supra note 22, at 11. Id. Id. See RICHARD A. POSNER & KATHARINE B. SILBAUGH, A GUIDE TO AMERICAS SEX LAWS 44-
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various womens groups, along with the New York Committee for the Prevention of State Regulation of Vice, began lobbying for an increase in the age of consent to eighteen.38 Their expressed concern was with protecting young women from being coerced into engaging in sexual activities by dangerous older men who would take advantage of their naivety.39 In response, all states raised the age of consent to sixteen or eighteen.40 In the 1970s, several states amended statutory rape laws so that the offender had to be a certain number of years older than the victim in order to be prosecuted at the felony level.41 These age-gap provisions now exist in a majority of states.42 Additionally, statutory rape provisions in every state became gender-neutral.43 Thus, both males and females can now be victims and perpetrators of the crime.44 C. Statutory ConstructionThe Laws Today Currently, the age of consent varies between sixteen and eighteen in all fifty states.45 This means that if an individual has sexual intercourse, or any other form of sexual activity in many states, with someone who is below the age of consent, he or she is guilty of rape, as the victim is unable to willingly and meaningfully consent to the activity despite the fact that no force may have been used.46 In their most basic form, which still exist in some states today,47 statutory rape provisions apply where both individuals are below the age
45 (1996).
38 COCCA, supra note 22, at 11. Specifically, lobbyists fought for the age at which a girl can legally consent to her own ruin be raised to at least eighteen years. MARY E. ODEM, DELINQUENT DAUGHTERS: PROTECTING ADOLESCENT FEMALE SEXUALITY IN THE UNITED STATES 15 (1995).
See COCCA, supra note 22, at 15. Id. at 14. Even today statutory rape laws do not apply to married couples in many states. See, e.g., W. VA. CODE 61-8B-1 (2003).
40
39
COCCA, supra note 22, at 16-17. See also SMITH & KERCHER, supra note 8, at 10. COCCA, supra note 22, at 16-17. See also SMITH & KERCHER, supra note 8, at 10. 43 COCCA, supra note 22, at 16-17. 44 Id. at 17. 45 SMITH & KERCHER, supra note 8, at 7. Less than fifteen years ago, the age of consent was fifteen or sixteen in a vast majority of states, and in some states, the age of consent was as low as fourteen. See POSNER & SILBAUGH, supra note 37.
42
41
MORRIS PLOSCOWE, SEX AND THE LAW 178-79 (1951). See, e.g., OHIO REV. CODE ANN. 2907.02(A)(1)(b) (West 2006 & Supp. 2012). But see In re D.B., 950 N.E.2d 528 (Ohio 2011) (holding that the enforcement of a statutory rape statute against an eleven year old who participated in sexual activity with another eleven year old is unconstitutional).
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of consentone is denoted as the perpetrator and the other the victim.48 Additionally, cases often arise where one individual is slightly below the age of consent and the perpetrator is slightly above the required age.49 To combat this, many states have written various age-gap provisions into their statutes or have adopted so called Romeo and Juliet laws.50 1. Age-Gap Provisions
Age-Gap provisions are provisions built into the age of consent law51 that either decriminalize sexual conduct between persons close in age or reduce the crime from a felony to a misdemeanor.52 Most Age-Gap provisions in place allow for a two-, three-, or four-year age gap between the perpetrator and the victim.53 Importantly, in some states, as well as in the Model Penal Code, non-forcible sexual intercourse between two individuals within a certain age range is not an offense at all, which means that the would-be perpetrator in one state is not considered culpable in another.54 For example, the Model Penal Code, adopted in 2001 provides:
A male who has sexual intercourse with a female not his wife, or any person who engages in deviate sexual intercourse or causes another to engage in deviate sexual intercourse, is guilty of an offense if: (a) the other person is less than [16] years old and the actor is at least [four] years older than the other person; or (b) the other person is less than 21 years old and the actor is his guardian or otherwise responsible for general supervision of his welfare . . . .55
See POSNER & SILBAUGH, supra note 37. See, e.g., People ex rel. J.L., 800 N.W.2d 720 (S.D. 2011); In re Z.C., 165 P.3d 1206 (Utah 2007). 50 See SMITH & KERCHER, supra note 8, at 10. 51 Steve James, Comment, Romeo and Juliet Were Sex Offenders: An Analysis of the Age of Consent and a Call for Reform, 78 UMKC L. REV. 241, 244 (2009) (In the context of sex, [t]he age of consent is the age at which a young person is legally able to understand and agree to consensual sex.) (quoting Age of Consent, AVERT, http://www.avert.org/ageconsent.htm (last visited Jan. 30, 2013)).
49 52 See id. at 256 ([W]hen addressing consensual sex between young people close in age, the provisions ensure that states either do not punish the conduct at all or punish it to a much lesser degree . . . .). 53 See SMITH & KERCHER, supra note 8, at 10. 54 See James, supra note 51, at 256. 55 MODEL PENAL CODE 213.3 (2001). The offense under subsection (a) is a felony, while all other offenses under subsections (b) and beyond are considered misdemeanors. Id.
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Thus, by permitting sexual intercourse between a female under sixteen and a male who is less than four years older than her, the Model Penal Code acknowledges that this conduct lacks the type of culpability requiring punishment.56 For example, it would not be considered statutory rape for a fourteen or fifteen year old to have sexual intercourse with a seventeen year old.57 This age-gap provision has been adopted by several states, as well as the federal government.58 Several broaden the language to account for female perpetrators and male victims.59 Currently, thirty of the fifty states have some form of age-gap provision in place.60 Several provide total protection for would-be perpetrators who fall within the designated age gap,61 while others lessen the offense to a misdemeanor where it would otherwise be a felony.62 Most adoptions of such provisions occurred within the last few years,63 and many scholars predict that statutory rape reform is far from over.64 Age-Gap provisions recognize that the risk of coercion and exploitation is not as great between people close in age.65 These provisions are put in place to prevent unjust punishment of teenagers or young adults who are not attempting to influence an unwitting individual into performing sexual activity.66 Indeed, many scholars believe that when peer sexual relationships are created there is a lack of a substantial age gap which indicates no power-play position exists.67 Accordingly, in the interest of fairness, most states have statutorily imposed age-gap considerations in order to protect adolescents from unjust punishment for
Id. Id. 58 See 18 U.S.C. 2243(a) (2006) (Sexual abuse of a minor, [is defined] as knowingly engaging in a sexual act with another person who (1) has attained the age of 12 years but has not attained the age of 16 years; and (2) is at least four years younger than the person so engaging . . . .); United States v. Rodriguez-Guzman, 506 F.3d 738, 745-46 (9th Cir. 2007).
57 59 See POSNER & SILBAUGH, supra note 37, at 45-64 (listing the relevant statutory rape laws in all fifty states, as well as the federal laws). 60 See SMITH & KERCHER, supra note 8, at 10-11. 61 Age of Consent Chart for the 50 States & D.C., AGE OF CONSENT http://www.ageofconsent.us/ (last visited April 14, 2013).
56
See Cohen, supra note 17, at 745-46, 749 & nn.201-02. See NOY S. DAVIS & JENNIFER TWOMBLY, STATE LEGISLATORS HANDBOOK FOR STATUTORY RAPE ISSUES 12 (2000), available at http://www.ojp.usdoj.gov/ovc/publications/infores/ statutoryrape/handbook/statrape.pdf. 64 See Cohen, supra note 17. 65 See James, supra note 51, at 256. 66 See id. 67 See Charles A. Phipps, Misdirecting Reform: On Regulating Consensual Sexual Activity Between Teenagers, 12 CORNELL J.L. & PUB. POLY 373, 431-32 (2003).
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engaging in consensual sexual activity with their peers.68 Age-gap provisions are also intended to prevent the flooding of courts with unnecessary cases.69 Instances of statutory rape occur far more often than cases of forcible rape.70 Because the conservation of time and money are two of the most prominent policy-based rationales for limiting the number of cases that enter the courtroom, these safeguards not only ensure that punishments remain just, but aid in furthering these economic goals.71 Some states do not have age-gap provisions but utilize other safeguards instead.72 Judicial and prosecutorial discretion play a major role in the enforcement of statutory rape.73 Additionally, many states without age-gap provisions embedded in their statutes implemented Romeo and Juliet laws into their justice systems.74 2. Romeo and Juliet Laws
Romeo and Juliet laws are often used interchangeably with age-gap provisions,75 however, the legal significance of each is slightly different.76 Romeo and Juliet laws do not stipulate the law, and they do not prevent an act from technically being a crime under statute.77 Instead, Romeo and Juliet Laws give the defendant an affirmative defense if certain qualifications are met.78 For example, in Texas:
(e) It is an affirmative defense to prosecution under Subsection (a)(2)79:
See James, supra note 51, at 256. See Cohen, supra note 17, at 749. 70 PLOSCOWE, supra note 46, at 178 (stating that 82% of rape cases in New York City were statutory rape cases). Because the overwhelming majority of rape cases are statutory raperelated, determining what cases to bring to trial is of the utmost importance. See id.
69
68
See United States v. Ruiz, 536 U.S. 622, 632 (2002) (discussing the importance of pleabargaining in preserving the court systems economic goals, as well as preventing the overflooding of the court). 72 See SMITH & KERCHER, supra note 8, at 11. 73 See James, supra note 51, at 249-50. 74 See SMITH & KERCHER, supra note 8, at 11. 75 See, e.g., id.; My Son Is Dating a Minor: Should I Be Worried About the Legal Implications?, 50 WAYS TEENS GET IN TROUBLE (Oct. 7, 2008), http://www.50waysteensgetintrouble.com/ index.php?/Teen-Dating-and-Relationships/dating-minors.html; What Are Romeo and Juliet Laws, SEX CRIMES LAWS, http://sex-crimes.laws.com/statutory-rape/romeo-and-juliet (last visited April 13, 2013).
76 77 78 79
71
SMITH & KERCHER, supra note 8, at 11. See id. See id. (discussing Romeo and Juliet Clauses in specific states). Subsection (a)(2) states that a person commits an offense if the person knowingly or
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[. . .] (2) that:
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(A) the actor was not more than three years older than the victim and at the time of the offense:
(i) was not required under Chapter 62, Code of Criminal Procedure, to register for life as a sex offender; or (ii) was not a person who under Chapter 62, Code of Criminal Procedure, had a reportable conviction or adjudication for an offense under this section; and
(B) the victim:

(i) was a child of 14 years of age or older . . . .80
Clearly, Romeo and Juliet clauses intend to protect individuals from being wrongfully, or unjustly, convicted who are close in age to the individual below the age of consent.81 However, unlike age-gap provisions, these laws still subject those individuals to prosecution, which leaves the potential for conviction open.82 Furthermore, in many states, Romeo and Juliet Laws do not provide an affirmative defense that could potentially absolve a juvenile from guilt.83 Instead, the law merely mitigates the crime from a felony to a misdemeanor.84 For example, in Georgia,85 if the victim is at least fourteen years old,
intentionally causes his or her sexual organ to come into contact with the child in any way, or the reverse. TEX. PENAL CODE 22.011(a)(2) (2009). TEX. PENAL CODE ANN. 22.011(e). See James, supra note 51, at 249-54; SMITH & KERCHER, supra note 8, at 11. 82 See GOVERNORS OFFICE FOR CHILDREN AND FAMILIES, TEENS, SEX AND THE LAW: A GUIDE FOR TEENS AND PARENTS, available at http://www.children.georgia.gov/files/imported/ vgn/images/portal/cit_1210/29/49/148560064Ab%20Ed%20Brochure-%20Teens,%20Sex%20and %20the%20Law.pdf.
81 80
See id. Contra TEX. PENAL CODE ANN. 22.011(e) (providing an affirmative defense). See My Son Is Dating a Minor: Should I Be Concerned About the Legal Implications? supra note 75.
84 85
83
GA. CODE ANN. 16-6-3 (2010). The statute reads: (a) A person commits the offense of statutory rape when he or she engages in sexual intercourse with any person under the age of 16 years and not his or her spouse, provided that no conviction shall be had for this offense on the unsupported testimony of the victim. . . . (c) If the victim is at least 14 but less than 16 years of age and the person convicted of statutory rape is 18 years of age or younger and is no more than four years older than the victim, such person shall be guilty of a misdemeanor.
GA. CODE 16-6-3 (2010).
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and the defendant is under eighteen, the crime is a misdemeanor punishable by up to twelve months in prison.86 This contrasts with the fact that if a defendant is over twenty-one years old, there is a minimum punishment of ten years without parole and a maximum punishment of twenty years without parole.87 Clearly, the sentence is quite dissimilar in such states for individuals close in age.88 Scholars are often concerned with the fact that despite their protective intentions, Romeo and Juliet Clauses permit judges and prosecutors to pick and choose cases they wish to investigate and prosecute.89 While an affirmative defense is available, subjecting individuals to prosecution is a trying and difficult experience, especially for a young person.90 In addition, the typical outcome of prosecutorial discretion in these types of cases demonstrates a substantial gender bias, as well as occasional racial bias.91 II. Constitutional Constraints on Punishment and Criminality A. The Eighth Amendment Inquiry into Culpability and Evolving Standards of Decency Under the Eighth Amendment of the U.S. Constitution, the government cannot impose cruel and unusual punishments upon individuals.92 The framers of the Constitution did not provide guidance to determine whether a sanction may be considered cruel and unusual under the Eighth Amendment but the U.S. Supreme Court has held that a punishment violates the provision if it falls under one of two categories: (1) the modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted; or (2) punishment inconsistent with evolving standards of decency that mark the progress of
86 J. TOM MORGAN, IGNORANCE IS NO DEFENSE: A TEENAGERS GUIDE TO GEORGIA LAW 97 (2009). Even though the punishment is a misdemeanor, statutory rape is still a crime, and if you are 17 years old or older, this crime will be part of your criminal history record for the rest of your life. Id. For a discussion of different age scenarios and the crimes with which a juvenile defendant would be charged, see GOVERNORS OFFICE FOR CHILDREN AND FAMILIES, supra note 81. 87 See MORGAN, supra note 86. 88 See MORGAN, supra note 86. 89 See SMITH & KERCHER, supra note 8, at 11-12 (A common concern with Romeo and Juliet Clauses, as opposed to an Age Gap Provision, is the amount of judicial discretion individual cases face in terms of prosecuting and sentencing.).
See James, supra note 51, at 249-54. Id. 92 U.S. CONST. amend VIII (Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.). This right extends to the states as well. U.S. CONST. amend XIV.
91
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a maturing society.93 Since most punishments that currently exist would not have been opposed at the inception of the Bill of Rights and society has progressed considerably since, courts almost always need to look beyond history to the evolving standards of decency in order to determine the constitutionality of a particular punishment.94 The applicability of the cruel and unusual punishment standard must change as the basic mores of society change.95 In order to engage in a proper analysis as to whether a particular punishment comports with societys standards, the court must engage in a two-step inquiry.96 First, the court must consider the objective indicia of societys standards . . . to determine whether there is a national consensus against the sentencing practice at issue.97 Next, the Court must determine in the exercise of its own independent judgment whether the punishment is unconstitutional.98 In regard to the first step of determining whether a national consensus exists, the court must look to two different factorslegislation and actual sentencing practices.99 In performing the second step of its analysis, the court must consider the culpability of the offenders at issue in light of their crimes and characteristics along with the severity of the punishment in question.100 Finally, the court must determine whether the challenged sentencing practice serves legitimate penological goals.101 There are four penological goals to consider when determining the constitutionality of a particular sanction: retributivism, deterrence, incapacitation, and rehabilitation.102 The theory of retributivism looks backward and lies in the idea that an offender deserves to be punished for the offense he or she committed.103 In essence, moral justice requires a defendant to be punished in order to restore balance.104 Deterrence belongs to the utilitarian theory of punishment.105
Ford v. Wainwright, 477 U.S. 399, 405-06 (1986). See Trop v. Dulles, 356 U.S. 86, 100-01 (1958). 95 Furman v. Georgia, 408 U.S. 238, 239, 382 (1972). 96 State v. Ninham, 797 N.W.2d 451, 466 (Wis. 2011). 97 Graham v. Florida, 130 S. Ct. 2011, 2022 (2010). 98 Id. 99 See Atkins v. Virginia, 536 U.S. 304, 312 (2002). 100 Graham, 130 S. Ct. at 2026. 101 Id. 102 See JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW 15-16 (4th ed. 2006). 103 Id. at 16-17. 104 Id. at 17. 105 See Brett M. Kyker, Initial Consent Rape: Inherent and Statutory Problems, 53 CLEV. ST. L. REV. 161, 179-80 (Social gains of punishment may include the following: general deterrence,
94
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Utilitarian theory justifies punishment whenever there is a possible social gain.106 Thus, under utilitarian theory, if the benefit to society outweighs the harm to the defendant, the punishment is just.107 The goal behind deterrence is twofold.108 Under specific deterrence, the belief is that the offender is punished and the punishment will deter the defendant from committing future harms.109 General deterrence, on the other hand, is the belief that punishing one defendant will prevent other would-be offenders from committing the same crime.110 Rehabilitation is another goal of utilitarianism.111 This goal revolves around the idea that being punished will allow an offender to improve his or her morality and as a result conform his or her actions to societal requirements.112 Thus, incarceration will rehabilitate the offender and make the individual a productive member of society in the future.113Incapacitation is the final goal of utilitarianism.114 Incapacitation centers on the idea that when an offender is punished, society is protected from future harm while he or she is incarcerated.115 The offender can no longer hurt or upset the community.116 B. Arbitrariness and Selective Prosecution When a punishment is deemed arbitrary and capricious, it violates
specific deterrence, incapacitation, and rehabilitation.). 106 See id. 107 Id. 108 See DRESSLER, supra note 102, at 15. 109 See Furman v. Georgia, 408 U.S. 238, 353 (1972) (discussing the ways in which sentencing can act as a specific deterrent for murderers). See also Tison v. Arizona, 481 U.S. 137, 181 & n.18 (1987) (The utilitarian logic of deterrence can also justify unjust punishments that are more commonly dispensed.). 110 Kirk R. Williams & Richard Hawkins, Perceptual Research on General Deterrence: A Critical Review, 20 LAW & SOC'Y REV. 545, 545-46 n.1 (1986). Michele Cotton, Back With a Vengeance: The Resilience of Retribution as an Articulated Purpose of Criminal Punishment, 37 AM. CRIM. L. REV. 1313, 1313-14 (2000).
112 See Dean J. Spader, Megatrends in Criminal Justice Theory, 13 AM. J. CRIM. L. 157, 180 (1986) (discussing how rehabilitation is designed to treat the offenders sickness through the use of experts). 111
See id. Matthew Haist, Deterrence in a Sea of Just Deserts: Are Utilitarian Goals Achievable in a World of Limiting Retributivism?, 99 J. CRIM. L. & CRIMINOLOGY 789, 806 (2009).
114
113
See MIKE MALES ET AL., CENTER ON JUVENILE & CRIMINAL JUSTICE, TESTING INCAPACITATION THEORY: YOUTH CRIME AND INCARCERATION IN CALIFORNIA 2 (2006), available at http://www.cjcj.org/files/testing_incapacitation.pdf.
116
115
See id.
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the Eighth Amendment.117 Additionally, the U.S. Supreme Court held that when a law encourages arbitrary enforcement by police, the law must be struck down as a violation of Due Process.118 This can occur when a statute is unconstitutionally vague to the point where there is little guidance to help law enforcement determine who should be considered violators or when a person of ordinary intelligence is unable to understand what conduct is proscribed.119 Selective prosecution is a serious concern, especially when a statute is particularly vague and allows for too much discretion.120 Selective prosecution occurs when a particular person is singled out and charged with a crime on an arbitrary or invidious basis.121 The state cannot enforce a law against males but not against females unless it can demonstrate a compelling interest that requires such a policy of discriminatory enforcement.122 Such practices violate the 14th Amendment Equal Protection clause of the Constitution.123 To successfully assert selective prosecution, the defendant must demonstrate that the prosecutorial policy had a discriminatory effect and that it was motivated by a discriminatory purpose.124 The defendant must show that: (1) similarly situated individuals are generally not prosecuted for the conduct that the defendant is being prosecuted for; and (2) the defendant has been intentionally singled out for prosecution on the basis of an arbitrary or invidious classification, such as race, gender, or religion.125
ANALYSIS
III. Criminalizing Consensual Sex Between Teens Contravenes the Eighth Amendment. For a particular practice to comply with the Eighth Amendments cruel and unusual punishment clause, the practice must be consistent with evolving standards of decency, and the individuals culpability must
See Gregg v. Georgia, 428 U.S. 153, 188 (1976) (discussing the arbitrary and capricious nature of Georgias death penalty sentencing statute). 118 City of Chicago v. Morales, 527 U.S. 41, 56 (1999) (discussing how a statutes vagueness may encourage arbitrary and perhaps even discriminatory practices by law enforcement).
119 120 121 122 123 124 125
117
Id.; Commonwealth v. Williams, 395 Mass. 302, 303 (1985). See United States v. Armstrong, 517 U.S. 456, 465 (1996). United States v. Darif, 446 F.3d 701, 708 (7th Cir. 2006). Commonwealth v. King, 372 N.E.2d 196, 206-07 (Mass. 1977). Armstrong, 517 U.S. at 464-65. Id. at 465. Darif, 446 F.3d at 708.
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not be grossly disproportionate to the form of punishment.126 In the case of statutory rape, there is a national consensus against prosecuting juveniles for having sex, making the practice inconsistent with evolving standards of decency.127 In addition, the level of culpability required to punish a criminal does not exist in this context, making any form of punishment disproportionate to the so-called offense.128 Finally, none of the penological goals necessary to justify punishment are met when the government subjects a teenager to prosecution for engaging in sexual conduct with his or her significant other.129 A. Statutory Rape Laws That Do Not Contain Age-Gap Provisions Are Inconsistent with Evolving Standards of Decency. The first step in determining constitutionality under the Eighth Amendment is to examine the objective indicia of societys standards . . . to determine whether there is a national consensus against the sentencing practice at issue.130 In determining whether a national consensus exists, the court looks to two different factorslegislation and actual sentencing practices.131 The definition of cruel and unusual punishment must change as the basic mores of society change.132 In the case of statutory rape, both the change in societal social mores and current legislation require the legislator implement age-gap provisions in order to comport with the Eighth Amendment.133 1. Current Social and Sexual Mores Require State Legislatures to Revise Statutory Rape Laws to Conform with Evolving Standards of Decency.
When statutory rape laws were first implemented in the United States, the world was a different place.134 Individuals were expected to wait until marriage to engage in sexual activity, and not doing so was entirely taboo.135 These laws were not meant to protect against sexuality or child molestation, but instead to protect a womans value for later marriage.136
126 127 128 129 130 131 132 133 134 135 136
Graham v. Florida, 130 S. Ct. 2011, 2022 (2010). See infra Part III.A. See infra Part III.B. See infra Part III.C. Graham, 130 S. Ct. at 2022. See Atkins v. Virginia, 536 U.S. 304, 312, 316 (2002). Furman v. Georgia, 408 U.S. 238, 382 (1972) (Burger, C.J., dissenting). See infra Part III.A.1-2. See COCCA, supra note 22, at 2, 10-12, 164 n.1, 165 n.21, 166 n.1. See id. at 2. See id.
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Today, society is different.137 The mission of statutory rape laws transformed into safeguarding those who cannot consent to sexual activity.138 Most importantly, adolescents engage in sexual activity without condemnation by the community.139 For example, todays teachers and parents often work to educate adolescents about sexuality and safe sex at a young age, often around the time the juvenile first hits puberty.140 Approximately 50% of teenagers admit to engaging in sexual intercourse while in high school.141 Teenage girls have access to both birth control and abortion.142 Society accepts these practices, and statutory rape laws lacking an age-gap provisions do not reflect societal progression or accommodate these changes in statutory rape law.143 Every day, dozens of television shows, movies, and songs are produced that romanticize sexual activity, and these mediums tell juveniles that they should find love for themselves.144 These mediums do not, however, tell teenagers to check their state laws to make sure that it is legal for a sixteen-year-old to engage in sexual activity with a fifteen-year-old.145 If society has normalized this behavior and acquiesced to its existence, then there is no legitimate reason why teenagers are prosecuted for engaging in it, especially when prosecution is based solely on which state they happen to live.146 Criminal laws are meant to change as society progresses.147 For instance, bastardy and fornication were once regularly prosecuted crimes, and their goals were in line with the original goals of statutory rapeto protect the sexuality of women before marriage.148 As society became more
See id. at 2, 164 n.3, 165 n.15, 166 n.1. See DAVIS & TWOMBLY, supra note 63, at 6. 139 See, e.g., Anna Lekas Miller, Dont Have SexYou Will Get Pregnant and Die, THENATION, (Aug. 2, 2011) http://www.thenation.com/blog/162525/dont-have-sex-you-will-get-pregnantand-die. 140 See, e.g., id. 141 See Oberman, supra note 6, at 703. 142 See id. 143 See SMITH & KERCHER, supra note 8, at 10. 144 See Does Watching Sex on Television Influence Teens Sexual Activity?, RAND, http://www.rand.org/pubs/research_briefs/RB9068/index1.html (last updated Sept. 27, 2010).
138 145 See generally A. HUSTON & E. DONNERSTEIN, MEASURING THE EFFECTS OF SEXUAL CONTENT IN THE MEDIA (1998).
137
See Oberman, supra note 6. See David Garland & Richard Sparks, Criminology, Social Theory and the Challenge of Our Times 40 BRIT. J. CRIMINOLOGY, 189, 189 (2000). 148 See, e.g., Jonathan Turley, Adultery, in Many States, Is Still a Crime, USA TODAY (Apr. 24, 2010), http://www.usatoday.com/news/opinion/forum/2010-04-26-column26_ST_N.htm.
147
146
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tolerant of consensual sexual relationships, however, this law was abrogated.149 Since society has come to acknowledge the fact that teenagers engage in sexual activity, the punishment of such activity becomes not only moot, but also contrary to societal interests.150 Thus, punishing boys and girls for engaging in sexual activity with each other consensually, does not conform with the United States evolving standards of decency.151 2. Legislative Trends Across the Country Demonstrate that Age-Gap Provisions in Statutory Rape Laws Should be Enacted in Order to Conform with the National Consensus.
Much of the argument against the reformation of statutory rape laws lies in the fact that juveniles are not often prosecuted for their crimes when compared to adult offenders.152 However, if a crime is categorically unconstitutional, the number of times the law is enforced is not the measure for its validityin fact, the lack of enforcement contributes to the notion that statutory rape laws are inconsistent with evolving standards of decency.153 Sentencing practices are indicative of societys desire to move away from a particular offense or punishment, which is an important factor when determining whether the practice is now unjust.154 Because statutory rape is rarely prosecuted when the would-be defendant is a juvenile, society is clearly departing from considering teenagers criminals when they engage in sexual activity with other teenagers.155 Legislation throughout the United States also demonstrates that there is a national consensus against punishing juveniles for engaging in consensual sexual activity with their peers.156 Currently, only three states have no form of age-gap provision or Romeo and Juliet exception in place to protect juveniles, which means that 47 states protect juveniles to some
See id. See Emily J. Stine, Comment, When Yes Means No: An Eighth Amendment Challenge to Classifying Consenting Teenagers as Sex Offenders, 60 DEPAUL L. REV. 1169, 1202 (2011) (discussing the unconstitutionality of labeling a teenager a sex offender).
150 149
See id. See KARYL TROUPE-LEASURE & HOWARD N. SNYDER, OFFICE OF JUVENILE JUSTICE & DELINQUENCY PREVENTION, STATUTORY RAPE KNOWN TO LAW ENFORCEMENT 1 (2005), available at www.ncjrs.gov/pdffiles1/ojjdp/208803.pdf (stating that approximately 18% of statutory rape offenders are juveniles in crimes where the victim was a female).
152
151
See Graham v. Florida, 130 S. Ct. 2011, 2023 (2010) (discussing the importance of looking to actual sentencing practices to determine whether a punishment is consistent with societys current standards).
154 155 156
153
See Furman v. Georgia, 408 U.S. 238, 382-83 (1972) (Burger, C.J., dissenting). See Eden, supra note 15, 9-10. Stine, supra note 150.
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extent.157 In addition, federal law contains an age-gap provision, absolving individuals from criminal liability where the age-gap is four years or less.158 As teenage sexual activity has become more common and accepted in society, the states have adopted age-gap provisions that reflect the changing attitudes.159 The U.S. has evolved and no longer labels teenagers predators for engaging in consensual sexual activity in an overwhelming majority of states.160 The clear consensus against criminalizing teenage sex in the same way as traditional statutory rape involving an adult demonstrates that there are serious Eighth Amendment violations in the remaining state statutes that do not contain age-gap provisions, including Massachusetts.161 Punishing teenagers as though they are sex offenders or predators is out of line with societys evolving standards of decency.162 B. When Minors Engage in Consensual Sexual Relationships, the Alleged Perpetrator Does Not Act with the Requisite Intent to be Culpable of Rape. When performing the second step of an Eighth Amendment analysis, the court must consider the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question.163 Some form of culpability is required in order to punish an individual for a crime, and without this requirement, holding a juvenile accountable for such a crime is constitutionally invalid.164 There is no culpability in situations where juveniles who engage in consensual sex are either both under the age of consent or close in age, and thus, all forms of punishment would therefore be cruel and unusual under the Eighth Amendment.165 When two juveniles who engage in sexual activity are both below the age of consent, one must be labeled the perpetrator while the other is labeled the victim to successfully prosecute an individual for statutory
See Eden, supra note 15 9-10. See 18 U.S.C. 2243(a) (2006). 159 See Darly J. Olszewski, Statutory Rape in Wisconsin: History, Rationale, and the Need for Reform 89 MARQ. L. REV. 693, 706 & n.93 (2006) (citing each states statutes concerning the sexual conduct of minors). As of 2006, only five states did not have any age gap provision or Romeo and Juliet law. Id.
158 160 161 162 163 164 165
157
See Eden, supra note 15, at 9-10. See id. at 10. See id. at 9. See Graham v. Florida, 130 S. Ct. 2011, 2026 (2010). See id. See generally Stine, supra note 150.
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rape.166 This is an obvious problemif both individuals consenually participated in sexual activity, and one should not know better than the other, then their level of so-called culpability is equivalent.167 When the victims level of culpability is equal to the perpetrators and both individuals are within the age group the criminal statute is meant to protect, neither deserves to be arbitrarily selected for punishment.168 In 2011, the Ohio Supreme Court addressed this issue when a 12-yearold boy was adjudicated delinquent under the states statutory rape law for engaging in consensual intercourse with an 11-year-old boy.169 The defendant did not force the interaction, nor use any other coercive techniquesthe trial court found that both of the children consented to the activity.170 In reversing the adjudication, the court held that because there was no differing level of culpability in situations such as the one presented the statute as applied to individuals below the age of consent was unconstitutional.171 The juvenile was a member of the very class the statute aimed to protect, and enforcing it would violate due process and equal protection.172 While Ohio may no longer prosecute individuals below the age of consent, minors in several other states, such as Massachusetts, have no such luck.173 These juveniles are no more culpable than the victims the government is seeking to protect, yet they are subject to serious charges and sentences including incarceration, non-sealable juvenile records, and mandatory sex offender registration.174 The disproportionality between their culpability and the punishment they face even if that punishment does not equal that of an adult offender, is in contravention of the Eighth
166 See, e.g., Commonwealth v. Bernardo B., 900 N.E.2d 834, 837 (Mass. 2009) (discussing a fourteen-year-old boy prosecuted as the perpetrator of statutory rape against three twelveyear-old girls although the judge denied the boys request to bring same charges against girls).
See Olszewski, supra note 159. Cf. Megan Twohey, Teens Who Have Sex Charged With Abuse, MILWAUKEE J. SENTINEL, Mar. 8, 2004, at 1A (discussing a prosecutors attempt to charge both teens who engaged in consensual sex for having intercourse with a juvenile). 169 See In re D.B., 950 N.E.2d 528, 530-31 (Ohio 2011). 170 See id. at 530. 171 See id. at 534; see also In re G.T., 170 Vt. 507 (2000) (ruling that Vermonts statutory rape statute is inapplicable in cases where the alleged perpetrator is also a victim under the age of consent).
168
167
In re D.B., 950 N.E.2d at 534; see In re G.T., 758 A.2d at 509. See, e.g., Commonwealth v. Bernardo B., 900 N.E.2d 834, 840-41 (Mass. 2009) (noting that a fourteen-year-old boy was arrested and prosecuted for statutory rape, among other charges, of three twelve-year-old girls).
173 174
172
Eden, supra note 15.
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Amendment.175 Even in situations where one teenager is above the age of consent and the other is below, there is substantial evidence that demonstrates that juveniles have a diminished level of culpability for all crimes when compared to adults.176 Culpability is further diminished when the crime is statutory rape for engaging in consensual sexual activity with someone close in age.177 American society and the legal system have recognized the difference between juveniles and adults time and time again, and statutory rape should be no exception.178 As the U.S. Supreme Court stated:
[L]ess culpability should attach to a crime committed by a juvenile than to a comparable crime committed by an adult . . . . [I]nexperience, less education, and less intelligence make the teenager less able to evaluate the consequences of his or her conduct . . . . The reasons why juveniles are not trusted with the privileges and responsibilities of an adult also explain why their irresponsible conduct is not as morally reprehensible as that of an adult.179
While some may argue that culpability should not be a determinative factor in statutory rape sentencing given its strict liability nature in several states, courts must use an Eighth Amendment analysis to determine the proportionality of punishment for a teenager, and this requires an inquiry into the juveniles culpability.180 In 2003, Genarlow Wilson, a seventeenyear-old athlete and honor student, was convicted of statutory rape for having oral sex with his fifteen-year-old girlfriend.181 Wilson was sentenced to ten years of prison without parole and lifetime registration as a sex offender.182 The Georgia Supreme Court reversed his sentence, holding:
Wilsons crime does not rise to the level of culpability of adults who prey on children and, for the law to punish Wilson as it would an adult, with the extraordinarily harsh punishment of ten years in prison without the possibility of probation or parole, appears to be grossly disproportionate to his crime.183
Statutory rape laws are meant to protect adolescents from predators.184
175 See Stine, supra note 150 (arguing that sex offender status is constitutionally invalid for teens convicted of statutory rape). 176 177 178 179 180 181 182 183 184
See Roper v. Simmons, 543 U.S. 551, 568 (2005). See Lindenberger, supra note 1. See Roper, 543 U.S. at 568. Thompson v. Oklahoma, 487 U.S. 815, 835 (1988). See Carpenter, supra note 31, at 376-79. See Lindenberger, supra note 1. See id. Humphrey v. Wilson, 652 S.E.2d 501, 509 (Ga. 2007). See DAVIS & TWOMBLY, supra note 63, at 6.
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The rationale behind liability is that adults have an immense amount of power over younger individuals, so that any consent is actually the product of influence and coercion.185 When teenagers are close in age, there is no risk of undue influence based on a power differential.186 Instead, peers are on an equal playing field, and the consensual sexual activity that occurs is just thatconsensual.187 If one takes into account the diminished culpability a minor has compared to that of an adult, coupled with the fact that teenage sexual activity is prevalent and gaining acceptance in society, juveniles should not be labeled sex offenders for participating in sexual activity with their peers.188 When a juvenile is punished for a non-culpable act, any punishment is disproportionate to the offense in contravention of the Eighth Amendment.189 Because there is no criminal culpability attached to a juvenile for engaging in a romantic and consensual sexual relationship with his or her peer, there should be no offense in the first place.190 C. Penological Goals Do Not Support Charging Adolescents with Statutory Rape. The final step in an Eighth Amendment analysis is determining what penological goals are met through sentencing for a crime.191 As the U.S. Supreme Court stated, [a] sentence lacking any legitimate penological justification is by its nature disproportionate to the offense.192 The four major penological goals for all crimes are retribution, deterrence, incapacitation, and rehabilitation.193 Prosecuting and potentially punishing minors for engaging in sexual activity with other individuals close in age does not serve any of these goals to the extent necessary to justify any form of punishment.194 If these goals cannot be met through any length of
See D.C. Law for Teens and Young Adults, supra note 27. See NANCY E. DOWD ET. AL, HANDBOOK OF CHILDREN, CULTURE, AND VIOLENCE 102 (2006).
186
185
See notes 159-70 and accompanying text. See notes 159-70 and accompanying text. 189 See Eden, supra note 155, at 9. 190 See SMITH & KERCHER, supra note 8, at 10-12. 191 See Graham v. Florida, 130 S. Ct. 2011, 2028 (2010). 192 Id. 193 See CHARLES STIMSON & ANDREW GROSSMAN, ADULT TIME FOR ADULT CRIMES: LIFE WITHOUT PAROLE FOR JUVENILE KILLERS AND VIOLENT TEENS 33-34 (2009).
188
187
See, e.g., Michael R. Parker, Kids These Days: Teenage Sexting and How the Law Should Deal with It 13 (Sept. 2009) (unpublished manuscript), available at http://works.bepress.com/ michael_parker/1.
194
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sentencing, then the issue is the crime itself.195 To meet the goals of retribution, a sentence must be directly related to the culpability of the offender.196 In the case of statutory rape, retributivist ideals are already strained due to the strict liability nature of the crime.197 In contrast, in most cases where an adult engages in sexual activity with a juvenile, the perpetrator is aware of his or her wrongdoing, and thus retributivist ideals can still apply.198 When it comes to juveniles, however, the acts they are engaging in are not intended to violate laws or upset societythey are social norm.199 As stated by one scholar, [t]his norm is clearly demonstrated by the overwhelming number of teenagers who participate in such activities. And although to some this might seem deeply appalling or unappealing, these activities are certainly not the abuse or mistreatment of young children.200 Teenagers who consensually engage in sex may not be adhering to what many factions believe is appropriate adolescent behavior; however this does not mean that youths who do participate in such acts deserve to be deemed criminals and subject to punishment.201 Such logic would be tantamount to criminalizing homosexuality due to opposition from social conservatives.202 Instead, measures can be taken to educate adolescents on appropriate sexual conduct such as: introducing concepts of immaturity, psychological ramifications, and teenage pregnancy through sexual education in schools, counseling, and stricter parental monitoring.203 There are, of course, some instances where minors may be acting in a predatory manner by coercing peers into sexual activity, and society does
See id. See Tison v. Arizona, 481 U.S. 137, 149 (1987). 197 See Dan Markel, How Should Punitive Damages Work?, 157 U. PENN. L. REV. 1383, 1431 n.156 (2009).
196 198 See OFFICE OF JUVENILE JUSTICE AND DELINQUENCY PREVENTION, JUVENILES AS VICTIMS, http://ojjdp.gov/ojstatbb/victims/faqs.asp (follow link for Does the victim-offender relationship vary with age of victim or age of offender in sexual assault victimization of juveniles?) (last visited Jan. 12, 2013) (providing data relating to the ages of victims and perpetrators in sexual assault cases). 199 See Parker, supra note 194, at 13 (discussing why teenagers engaging in sexting does not amount to child pornography under the retributivist theory). 200 Id. 201 Id. 202 See Lawrence v. Texas, 539 U.S. 558, 582 (2003); see also Jessica Mayrer, GOP Aims to Criminalize Homosexuality, MIZZOULA INDEP. (July 1, 2010), http://missoulanews.bigskypress. com/IndyBlog/archives/2010/07/01/gop-aims-to-criminalize-homosexuality (providing an example of Republicans attempting to criminalize homosexuality). 203 See BRIGID MCKEON, ADVOCATES FOR YOUTH, EFFECTIVE SEX EDUCATION (2006), available at www.advocatesforyouth.org/storage/advfy/documents/fssexcur.pdf.
195
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have a clear interest in prosecuting such cases.204 However, forcible rape laws are the appropriate tools to use in these circumstances.205 Prosecutors already use the charge of forcible rape when minors coerce their peers to engage in sexual conductcreating age-gap provisions in statutory rape laws will not alter that practice.206 The enforcement of statutory rape laws against juveniles also fails to serve the goal of deterrence.207 While proponents of statutory rape enforcement may believe that the fear of punishment deters adolescents from engaging in sex, juvenile sexual activity has risen in recent years despite the existence of this enforcement.208 This demonstrates that, in reality, these laws have hardly any deterrent effectif they did, adolescents would not be engaging in sex more than ever before.209 In addition to the prevalence of adolescent sexual activity in everyday American lifebe it through the media or socializationit is likely that most teenagers and juveniles do not even understand statutory rape laws or know of their applicability to adolescents.210 Recently, several authors have published books and reports directed at teenagers in order to educate them on the issue.211 This is not surprising considering the vast differences in state statutory rape legislation throughout the country.212 Thus, there is no deterrent value in continuing to hold juveniles accountable for statutory rape.213
204 See PHIL RICH, JUVENILE SEXUAL OFFENDERS: A COMPREHENSIVE GUIDE TO RISK EVALUATION 156 (2009). 205 See Jane Glenn Cannon, Teen Charged in Rape of Norman Student, TULSA WORLD (Mar. 6, 2012), http://www.tulsaworld.com/news/article.aspx?subjectid=12&articleid=20120306_12_0_NORM AN724838 (providing example where teen charged with forcible rape of another teenager).
See id. See Emily J. Stine, When Yes Means No, Legally: An Eighth Amendment Challenge to Classifying Consenting Teenagers as Sex Offenders, 60 DEPAUL L. REV. 1169, 1212-13 (2011).
207 208 See U.S. v. Shannon, 110 F.3d 382, 387 (7th Cir. 1997) (The extraordinary variety of state statutory-rape laws and the well-known failure of state legislatures to keep their sex laws up to date with the changing sexual mores of the American people make it difficult to impute a single goal to statutory-rape laws. . . .); see also Teen Sex Statistics & Sex Facts, FAMILY FIRST AID, http://www.familyfirstaid.org/teen-sex-statistics.html (last visited Jan. 17, 2013) [Hereinafter FAMILY FIRST AID].
206
See FAMILY FIRST AID, supra note 208. See MORGAN, supra note 86. 211 See, e.g., D.C. Law for Teens and Young Adults, supra note 27; MORGAN, supra note 86. 212 See D.C. Law for Teens and Young Adults, supra note 27; MORGAN, supra note 86; Anthony John Colleluori, Understanding New York Statutory Rape Laws: The Age of Consent, AVVO, http://www.avvo.com/legal-guides/New-York-Age-Consent (last visited Jan. 16, 2013). 213 Cf. Lisa Pearlstein, Walking the Tightrope of Statutory Rape Law: Using International Legal Standard to Serve the Best Interests of Juvenile Offenders and Victims, 47 AM. CRIM. L. REV. 109, 123
210
209
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Rehabilitation is futile in the context of juveniles convicted of statutory rape.214 A teenager who has consensual sex with another teenager is not someone that needs to participate in any prison-sponsored reform program.215 If anything, the individual should be educated about sexuality, and the proper location for this is at home or schoolnot in a detention center or on probation.216 Rehabilitation in the penological theory context is intended to relocate an individual who cannot otherwise function as a member of society until they conform their actions, and unless the juvenile is a sexual predator, no prison-based rehabilitation is needed.217 For instance, in Massachusetts, two teenage boys, both of whom had Aspergers Syndrome, engaged in sexual activity while the defendant was fifteen and the victim was thirteen.218 When the defendant turned sixteen, their romantic relationship continued for two months, and at this point the victims parents notified authorities who charged the now sixteen-year-old with statutory rape.219 The case in no way indicates that there was any physical coercion, or that the relationship was anything other than consensual and amorous.220 While the teenager may not have behaved in a way that his or her parents, neighbors, or teachers find appropriate, the proper recourse to improve his or her behavior does not need to occur under the criminal justice systems supervision.221
(2010) (opining that, despite legitimate interests in preventing adults from engaging in intimate relationships with teenagers, it is impractical to assume that aggressive enforcement will eliminate all relationships between teenage girls and adult men). 214 Cf. J.F. Yeckel, Violent Juvenile Offenders: Rethinking Federal Intervention in Juvenile Justice, 51 WASH. U. J. OF URB. & CONTEMP. L. 331, 345, 347 (1997) (By providing a nuturing environment for juvenile offenders, rehabilitationists believe that the former offenders will develop new, positive self-images which will, in turn, result in lower juvenile crime rates.). 215 See Amy T. Schalet, Raging Hormones, Regulated Love: Adolescent Sexuality and the Constitution of the Modern Individual in the United States and the Netherlands, 6 BODY AND SOCY 76, 84-85 (2000) (discussing how adolescent sexual behavior is the social norm). Even parents of adolescents recognize sexuality and desire for intimacy as a natural part of their childrens maturation. See id. at 82. See Trisha E. Mueller et al., The Association Between Sex Education and Youth's Engagement in Sexual Intercourse, Age at First Intercourse, and Birth Control Use at First Sex, 42 J. ADOLESCENT HEALTH 89, 92-93 (2008). 217 See RICH, supra note 204 (In evaluating sexually abusive behavior . . . we must distinguish between behavior that is sexually abusive, sexual behavior that may be inappropriate in any number of possible variants but is not necessarily abusive, and sexual behavior that is behaviorally and culturally normative for the children or adolescents engaging in that behavior.).
218 219 220 221 216
Commonwealth v. Washington W., 928 N.E.2d 908, 910 (Mass. 2010). Id. See id. at 910 n.1. See Stine, supra note 150, at 1224.
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In regards to incapacitation, if a juvenile convicted of statutory rape is placed in jail or prison, then he or she is prevented from doing further harm to society during that time.222 However, society hardly needs to be protected from the notion of teenagers participating in sexual activity.223 Consensual sex between juveniles is not a dangerous activity that warrants incarceration, but juveniles who participate in factually nonconsensual sexual activity, which is a legitimate threat to societys welfare, can still be prosecuted for forcible rape.224 Many proponents of statutory rape laws argue that punishing teenagers for this behavior protects society from rising teenage pregnancy rates that would result in increased costs to taxpayers.225 They argue that paying for the welfare of teen mothers is harmful to society, and that this justifies placing teenage boys in jail.226 While teenage pregnancy is certainly an issue, incapacitation does not serve this goal because, by this point, the harm is already done.227 Furthermore, studies show that an overwhelming percentage of teenage pregnancies result from relationships between teenage women close to the age of majority and considerably older adult men.228 While such situations may not be ideal, modern society can hardly criminalize these consensual actions, especially to the point where incapacitation is an actual goal of statutory rape in these instances.229 Instead, society should be working to better educate teenagers on the consequences of sex, and keep the criminal justice system out of the
222 See MIKE MALES ET AL., CTR. ON JUVENILE & CRIMINAL JUSTICE, TESTING INCAPACITATION THEORY: YOUTH CRIME AND INCARCERATION IN CALIFORNIA 2 (2006), available at www.cjcj.org/files/testing_incapacitation.pdf. 223 See Yeckel, supra note 214, at 345, 349; see also Fariss Samarrai, Early Teen Sex May Not Be a Path to Delinquency, Study Shows, UVATODAY (Nov. 12, 2007), http://www.virginia.edu/ uvatoday/newsRelease.php?id=3288 (discussing how teenagers who participate in sexual activities have been found to be less likely to commit other crimes as they age, compared to teenagers who wait until adulthood). 224 See Lisa Chedekel, Study Targets Group Sex Among Teens, BU TODAY (Jan. 17, 2012), http://www.bu.edu/today/2012/group-sex-among-teens-a-growing-trend/. 225 See A Practical Guide to D.C. Law for Teens and Young Adults, supra note 27. 226 Patricia Donovan, Can Statutory Rape Laws Be Effective in Preventing Adolescent Pregnancy?, 29 FAM. PLAN. PERSP. 30, 32 (1996), available at http://www.guttmacher.org/ pubs/journals/2903097.pdf.
See David J. Landry & Jacqueline Darroch Forrest, How Old Are U.S. Fathers?, 27 FAM. PLAN. PERSP. 159, 159 (1995), available at http://www.guttmacher.org/pubs/ journals/2715995.pdf.
228 229
227
Id. at 159, 160. See Lindenberger, supra note 1.
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equation.230 Because any sentence lacking any legitimate penological justification is disproportionate to the offense, and because punishing juveniles for participating in consensual sexual relationships with their peers achieves no legitimate penological goal, criminalizing sexual activity between juveniles through statutory rape laws violates the Eighth Amendment.231 IV. Prosecutorial Discretion Results in the Unfair Targeting of Teenage Boys, Rendering the Enforcement of Statutory Rape Laws Arbitrary and Capricious. Statutory rape charges against juveniles are rarely brought when compared to the number of individuals involved in sexual relationships that violate age of consent laws.232 Within this small number of charges, an overwhelmingly disproportionate number of defendants are male.233 While it is possible that a majority of offenders are male, it is unlikely.234 What is more likely, however, is the fact that prosecutors, who have an enormous amount of discretion when deciding to pursue these charges, tend to focus on teenage boys.235 While prosecutorial discretion is an important function within the United States justice system,236 its purpose is frustrated when it comes to statutory rape and teenagers.237 Prosecutorial discretion is necessary in order to save time and money in the court system; however, such discretion is not unbounded.238 The U.S. Constitution guarantees individuals that prosecutors and other law enforcement officials will not proceed against them in a manner that is arbitrary or based on any
Stine, supra note 150, at 1223-24. See Graham v. Florida, 130 S.Ct. 2011, 2028 (2010). 232 See KARYL TROUP-LEASURE & HOWARD N. SNYDER, OFFICE OF JUVENILE JUSTICE AND DELINQUENCY PREVENTION, STATUTORY RAPE KNOWN TO LAW ENFORCEMENT 4 (2005),available at http://www.ncjrs.gov/pdffiles1/ojjdp/208803.pdf; Michael M. v. Superior Court of Sonoma Cnty., 450 U.S. 464, 494-93 n.8 (1981) (Brennan, J., dissenting) (discussing the discrepancy between the number of statutory rape cases and teenage pregnancies). 233 See TROUP-LEASURE, supra note 232, at 1. 234 See, e.g., McKenzie v. State, 946 So. 2d 392, 395 (Miss. Ct. App. 2006) (discussing the possibility of female defendants).
231
230
See James, supra note 51, at 252-53. See David Bjerk, Making the Crime Fit the Penalty: The Role of Prosecutorial Discretion Under Mandatory Minimum Sentencing, 48 J. L. & ECON. 591, 592-93 (2005) (discussing the importance of prosecutorial discretion to an efficient criminal justice system as well as its importance in adequately protecting society).
236 237 238
235
See James, supra note 51, at 252-53. Wayte v. U.S., 470 U.S. 598, 608 (1985).
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unjustifiable standard.239 Many statutes without an age-gap provisions are incredibly vague, and thus, an impossible number of potential cases exist that prosecutors must weed through in order to bring an adequate number of charges.240 In essence, the prosecutors must determine for themselves the intended purpose of the law in order to enforce the law.241 For instance, the age of consent in Massachusetts is sixteen; yet when both participating juveniles are under sixteen, both are perpetrators of statutory rape and technically sex offenders.242 Although in these situations all individuals have violated the law, only one individual is labeled the perpetratorthe male.243 For instance, in Commonwealth v. Bernardo B., a fourteen-year-old boy had brief consensual sexual encounters with three twelve-year-old girls.244 When prosecutors were informed of the situation, the boy was arrested and prosecuted for statutory rape.245 The prosecutor did not dispute that the acts were consensual amongst the four juveniles, yet he proceeded only against the boy, labeling the three females as victims.246 Under Massachusetts law, the three girls were also eligible to be charged with statutory rape, yet the prosecutor refused to treat the females as perpetrators as well.247 The Massachusetts Supreme Court opined that this behavior was indicative of impermissible selective prosecution based on gender and that the Commonwealth was unable to make any showing to the contrary.248 The court permitted a more extensive look into the prosecutions motives for bringing a statutory rape charge targeting the only male in that case, however, there are many instances where such
Oyler v. Boles, 368 U.S. 448, 456 (1962). See Siji A. Moore, Out of the Fire and into the Frying Pan: Georgia Legislatures Attempt to Regulate Teen Sex Through the Criminal Justice System, 52 HOWARD L. J. 197, 222 (2008) (The Georgia Supreme Court found that there were about 7.5 million incidents of aggravated child molestation committed in the United States every year under Georgia's former aggravated child molestation statute.). 241 See SMITH & KERCHER, supra note 8, at 11-13. 242 MASS. GEN. LAWS 265, 23. Interestingly, while Massachusetts does not currently have an age-gap provision protecting juveniles, it does include age gaps in its definition of aggravated rape and abuse of a child. Id. 23A.
240
239
See, e.g., Commonwealth v. Bernardo B., 900 N.E.2d 834, 837 (Mass. 2009); In re T.A.J., 73 Cal. Rptr. 2d 331, 333 (Cal. Ct. App. 1998); B.B. v. State, 659 So. 2d 256, 257 (Fla. 1995); Gammons v. Berlat, 696 P.2d 700, 700 (Ariz. 1985).
244 245 246 247 248
243
Bernardo B., 900 N.E.2d at 837. Id. Id. at 837, 841. Id. at 837-38, 841. See id. at 838.
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discretion goes overlooked.249 Many individuals argue that the reason statutory rape laws primarily target males is because males are simply more apt to engage in and initiate sexual activity with younger females than the converse, and thus, the discrepancy is not a result of selective prosecution.250 In reality, however, the discrepancy between the number of boys and girls who initiate sex is relatively minimal.251 Even if it were not so, the instances of discrimination do not add upfor example, in Gammons v. Berlat, a mentally disabled thirteen-year-old boy was convicted of statutory rape for engaging in consensual sex with his fifteen-year-old girlfriend.252 The prosecution did not charge the older female with any crime, and the court made no mention as to why.253 If selective prosecution is not a prevalent problem in statutory rape cases, why was the older female who was just as, if not more, culpable than the mentally incapacitated boy not accordingly charged?254 Strikingly similar cases such as these exist throughout states that do not have age-gap provisions in place.255 This abhorrent practice is overwhelmingly indicative of selective prosecution in that it is directed so exclusively against a particular class of persons . . . with a mind so unequal and oppressive that the system of prosecution amounts to a practical denial of equal protection of the law.256 There is a clear problem of arbitrariness when laws permit the targeting of teenage boys simply due to the fact that they are teenage boys while, more often than not, prosecutors turn a blind eye to the identical conduct of females.257
Compare id. with In re T.A.J., 73 Cal. Rptr. 2d 331, 333-34 (Cal. Ct. App. 1998); B.B. v. State, 659 So. 2d 256, 257 (Fla. 1995); Gammons v. Berlat, 696 P.2d 700, 700 (Ariz. 1985). See also Kay L. Levine, No Penis, No Problem, 33 FORDHAM URB. L.J. 357, 377-79 (2006) (discussing the overwhelming existence of literature targeting male perpetrators in statutory rape cases). 250 See Heidi Kitrosser, Meaningful Consent: Toward a New Generation of Statutory Rape Laws, 4 VA. J. SOC. POLY & L. 287, 291-92 (1997). See id. at 13 n.15 (The percentage of teens age 15-19 who had initiated sexual intercourse before age 14 was 8% of girls and 11% of boys in 1995 and in 2002, 6% of girls and 8% of boys.). 252 See Gammons, 696 P.2d at 700-01, 703-04. 253 See id. at passim. 254 See ARIZ. REV. STAT. ANN. 13-1405 (2011). 255 See, e.g., B.B. v. State, 659 So. 2d 256, 257 (Fla. 1995) (applying FLA. STAT. ANN. 794.05 (1996), which does not include an age gap provision); In re T.A.J., 73 Cal. Rptr. 2d 331, 333 (Cal. Ct. App. 1998) (applying CAL. PENAL CODE 261.5 (2011), which does not include an age gap provision). 256 United States v. Armstrong, 517 U.S. 456, 464-65 (1996) (quoting Yick Wo v. Hopkins, 118 U.S. 356, 373 (1886)) (internal quotation marks omitted).
257 251
249
See City of Chicago v. Morales, 527 U.S. 41, 56 (1999).
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Because current statutory rape laws lacking age-gap provisions permit arbitrary enforcement by police and prosecutors based on factors such as gender the law must be stricken down in order to comport with constitutional guarantees.258 Thus, age-gap provisions are necessary to ensure a more constitutional and efficient legal system.259 V. A Case Study: Massachusetts Should Enact Legislation Modeled After the Model Penal Codes Age-Gap Provisions. Massachusetts current statutory rape laws do not contain any age-gap provisions.260 The current applicable law permits juveniles to be prosecuted when both are under the age of consent, as well as when there is as little as a one-month age gapand technically, even less.261 As such, it does not comport with societys current social mores, and the law inadequately protects the interests of juveniles.262 More importantly, these laws are currently unconstitutional under the Eighth Amendment, and are also unconstitutionally vague because they encourage arbitrary enforcement and selective prosecution.263 Because of this, Massachusetts must reform its laws in order to comport with the nations evolving standards of decency.264 The creation of a Romeo and Juliet exception will not sufficean age-gap provision must be implemented.265 Massachusetts should adopt the Model Penal Codes statutory-rape provision and allow for an age gap of four years.266 This will best protect juveniles from unfair prosecution, and recognize that consensual activity among peers is not worthy of criminal punishment.267
258 See id. (discussing how a statutes vagueness may encourage arbitrary and perhaps even discriminatory practices by law enforcement).
Cf. Henry L. Miller & Corrine E. Miller et al., Issues in Statutory Rape Law Enforcement: The Views of District Attorneys in Kansas, 30 FAM. PLAN. PERSP. 177, 177 (1998), available at http://www.d.umn.edu/cla/faculty/jhamlin/3925/Readings/StatutoryRape.html (discussing a study involving Kansas District Attorneys and their attitudes towards statutory rape protections). The attorneys were split virtually down the middle in terms of age-gap provisions. Id. at 178. However, only one attorney out of the ninety-two that were surveyed stated [l]eave it to the discretion of the prosecutor. Id.
260 261 262 263 264 265 266 267
259
See MASS. GEN. LAWS Ch. 265, 23 (2010). See id. See supra Part III.A.1. See supra Part III-IV. See supra Part III.A. See infra Part V.A. Infra Part V.B. See Eden, supra note 155.
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A. Romeo and Juliet Laws Inadequately Protect Juveniles. As implicated above, Romeo and Juliet exceptions to statutory rape charges that simply lessen penalties or lower the degree of the offense are not sufficient.268 In states with Romeo and Juliet laws, an individual is still forced to suffer the humiliation of going to trial for something that is in line with the social norm, and may still be punished, even if not to the extent of an adult offender.269 While proponents argue that Romeo and Juliet laws provide some necessary safeguards, this is not enough.270 Romeo and Juliet laws still subject juveniles to prosecution and punishmentwhich means they do not overcome the Eighth Amendment and arbitrariness issues that plague states without any age-gap provisions.271 Prosecution decisions regarding two consenting teenagers engaging in sexual activity should not be left to the unfettered discretion of prosecutors.272 There is no substantial reason for making one teenager an offender for participating in an act that has become a norm within society, even if the juvenile will receive less time than if he or she was an adult.273 Instead, Massachusetts should completely decriminalize consensual sexual activity between two close-in-age juveniles.274 While society does have an interest in preventing things such as teenage pregnancy, there is no need for the criminal or juvenile court to handle these types of cases even if they are eventually dismissed.275 Massachusetts should therefore adopt an age-gap provision that absolves juveniles from criminal liability where the activity was consensual and the peers are within a certain agerangethe only remaining issue is determining where the age-gap lines should be drawn.276 B. What Age Gap Is Best? Most of the age-gap provisions that exist typically allow for age gaps ranging from two to six years.277 There is a substantial difference between those gaps, especially when teenagers or children are involved, considering
See SMITH & KERCHER, supra note 8, at 11, 13. See id; infra Part I.C.2. 270 See SMITH & KERCHER, supra note 8, at 11, 13; infra Part I.C.2. 271 See supra Part I.C.1. 272 See Eden, supra note 155. 273 See Parker, supra note 194 (discussing why teenagers who engage in sexting should not amount to child pornography under the retributivist theory).
269 274 275 276 277
268
See supra Parts III-IV. See A Practical Guide to D.C. Law for Teens and Young Adults, supra note 26. See Eden, supra note 155. SMITH & KERCHER, supra note 8, at 12.
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the large amount of maturation that takes place in such a short span of time.278 Equally as important, however, is the fact that all adolescents do not mature at the same ratethe maturity level and cognitive ability of seventeen year olds, for example, are often quite different.279 The Model Penal Code is often adopted by states, and many of these laws have become majority rule.280 In regards to statutory rape, a number of states chose to adopt the Model Penal Code.281 The Model Penal Codes age gap provision makes any age span of less than four years not subject to criminal prosecutionprovided, of course, that there is factual consent.282 This provision is ideal, as any less or any more may not adequately protect adolescents.283 It is important to remember that high school students are typically up to four years apart.284 If Massachusetts adopted the Model Penal Code provision, it would permit high school students to engage in sexual activity without fear of prosecution, so long as they are just under four years apart.285 Massachusetts should work to adopt the Model Penal Code provision in order to best represent the interests of all juveniles and to comport with societys evolving standards of decency.286 A four-year age difference is ideal to protect non-predatory adolescents from potentially receiving jail time or any other sentence for engaging in an act with an individual who is deemed mature enough to spend each and every day at a school surrounded by older individuals like himself or herself.287 While a fifteen year old engaging in sexual behavior with an eighteen
See JUVENILE JUSTICE CTR., AMERICAN BAR ASSN, ADOLESCENCE, BRAIN DEVELOPMENT & LEGAL CULPABILITY 1-2 (2004) available at http://www.americanbar.org/ content/dam/aba/pub lishing/criminal_justice_section_newsletter/crimjust_juvjus_Adolescence.authcheckdam.pdf.
279 See JUVENILE JUSTICE CTR. & YOUTH LAW CTR., AM. BAR ASSN, KIDS ARE DIFFERENT: HOW KNOWLEDGE OF ADOLESCENT DEVELOPMENT THEORY CAN AID DECISION-MAKING IN COURT 6 (2000), available at http://www.njdc.info/pdf/maca1.pdf (Individual adolescents develop along different dimensions at different rates.). 280 See Paul H. Robinson & Markus Dirk Dubber, An Introduction to the Model Penal Code 1 (Mar. 12, 1999), available at www.law.upenn.edu/fac/phrobins/intromodpencode.pdf. 281 See Deborah W. Denno, Why the Model Penal Codes Sexual Offense Provisions Should be Pulled and Replaced, 1 OHIO ST. J. CRIM. L. 207, 208 (2003) (noting that many of the factors that shaped the creation of the Codes sexual offense provisions are reflected in modern rape statutes today). 282 See id. 283 See SMITH & KERCHER, supra note 8, at 10-11. 284 See Fawn Johnson, Do We Need Four Years of High School?, NATIONAL JOURNAL (May 9, 2011), http://education.nationaljournal.com/2011/05/do-we-need-four-years-of-high.php. 285 286 287
278
See MODEL PENAL CODE 213.3(1)(a). See supra Part III.A.1-2. See SMITH & KERCHER, supra note 8, at 10.
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year old might seem extreme in some circumstances, sending the eighteen year old to prison is not the answer to this less-than-ideal situation.288 If society has an interest in preventing sexual occurrences between these two individuals, the answer more adequately lies with parents and schools.289 Educating teenagers on the psychology of sex would be a fairer and more effective way to circumvent those issues and would not force an individual to go to prison for something that should not be criminally punishable.290 Some states have age-gap provisions that span only two or three years.291 While these provisions are certainly preferable to none, the fact that high school students range from approximately fourteen to eighteen is a strong indicator that students within this four-year age gap are close enough in maturity to permit everyday social interaction and foster friendshipsbe it through class, the lunchroom, or after-school activities.292 Thus, drawing the line at two or three years may be inappropriate in the criminal justice context.293 Again, there are other, less drastic, answers to addressing any potential objectionable relationships without the involvement of criminal sanctions, such as education, parental monitoring, and, if necessary, parental restraining orders.294 In contrast, an age gap of five years would be excessivethis would permit a recent high school graduate to engage in a sexual relationship with someone who is still in middle school.295 The modern education system does not indicate that there are circumstances where this relationship would have a reasonably foreseeable origin, and the difference of maturity between the two would make consent much less likely, and in turn, an aspect of coercion more probable.296 In cases where the older individual suffers from a cognitive disability, diminished capacity, or some other mitigating factor, prosecutorial discretion would still exist to prevent an unjust conviction.297 While line drawing based on age always risks some level of
See James, supra note 51, at 241-42. Cf. Dini Rossenbaum, Strict Liability and Negligent Rape: Or How I Learned to Start Worrying and Question the Criminal Justice System, 14 CARDOZO L.J. & GENDER 731, 754 (2008) (discussing education programs implemented in schools when statutory date-rape reform proved unsuccessful).
289 290 291 292 293 294 295 296 297
288
Cf. id. SMITH & KERCHER, supra note 8, at 12. See, e.g., Eden, supra note 155. See SMITH & KERCHER, supra note 8, at 13. See id. at 17. See COCCA, supra note 22. See id. See Bjerk, supra note 236 (discussing prosecutorial discretion in certain instances).
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arbitrariness, they still must be drawn.298 A four-year age gap is the most appropriate considering modern societys current practices, as well as the fact that this age gaps exists both in the federal statute, and the Model Penal Code.299 Therefore, Massachusetts should follow the Model Penal Code and adopt its four-year age-gap provision.300
CONCLUSION
Teens today have sex. Society has progressed to a point where this is no longer taboo, and puritanical laws that criminalize such behavior do more harm than good. Sexual activity is on the rise, and not only do statutory rapes laws not prevent teens from having sex, but they unjustly punish those that are selected for prosecution. Laws are meant to conform to social mores, and statutory rape laws that do not contain age-gap provisions to protect children and teenagers are not in line with current reality. Thus, they are in contravention of the Eighth Amendment, and this must be remedied. While many individuals may believe that children need protection from sex, criminalizing those that have sex is not the way to protect themplacing a 13 year old in jail for engaging in sexual conduct with another thirteen-year-old could not be further from protection. Instead, states such as Massachusetts must adopt age-gap provisions and leave the judicial system out of an issue that does not belong in the hands of law enforcement and prosecutors.
298 See Roper v. Simmons, 543 U.S. 551, 568-69 (2005) (drawing the line for capital punishment at eighteen). 299 300
See MODEL PENAL CODE 213.3 (1962). See id.; see also Eden, supra note 154, at 9.

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Michael Lindenberger, Wilsons Sentence Overturned, http://www.time.com/time/nation/article/0,8599,1677087,00.html.

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(B) the victim:

GA. CODE 16-6-3 (2010).

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Eden, supra note 15.

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Statutory rape laws are meant to protect adolescents from predators.184

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Id. at 159, 160. See Lindenberger, supra note 1.

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See City of Chicago v. Morales, 527 U.S. 41, 56 (1999).