Statutory Rape

Abstract

This chapter considers statutory rape, where liability is imposed solely by virtue of the fact that the complainant is underage. It questions whether presuming incapacity makes sense, at least in the case of older adolescents. One problem is that the law is internally inconsistent. First, it presumes incapacity when a juvenile has sex with an adult but not when she has sex with another juvenile (under so-called Romeo and Juliet provisions). Second, it implicitly recognizes capacity to consent when imposing aggravated penalties in cases where the intercourse was actually nonconsensual. One way to avoid this inconsistency would be to abandon the notion that (older) juveniles are per se incapable of consenting and instead view sex with such persons as analogous to other strict liability offenses intended to prevent harm to potentially vulnerable members of society. Such an approach would have the side effect of allowing a reasonable mistake-of-age defense.