The pros and cons of statutory rape laws
Recently, the Georgia Supreme Court heard arguments in
Dixon v. State. The case involves the conviction of Marcus Dwayne Dixon
for statutory rape and aggravated child molestation. (Dixon was
acquitted of rape and several other charges.)
Statutory rape is sex between an adult and a minor, while aggravated
child molestation also involves an injury. At the time of his offense,
Dixon was an 18-year-old high school football player who had sex with a
15-year-old female classmate. The aggravated child molestation statute
mandates a ten-year minimum sentence, and Dixon challenges the harshness
of the resulting penalty.
The case has attracted claims of racism, because the victim was a
white girl and the convict an outstanding African-American student with
a football scholarship to Vanderbilt.
One provocative underlying (though unstated) question that has
contributed to the notoriety of this case is whether the law can
legitimately send teenagers to prison for having sex with other
teenagers, in the absence of force. Because every state has a statutory
rape law in some form, this case presents a challenge to a long and
continuing tradition of criminal laws that confine men for what could be
consensual sex with minors who are close to the age of majority.
Such liability is controversial in a number of ways, but it also has
some benefits that are often overlooked by critics, thus leaving us with
a difficult dilemma that admits of no easy answers.
Statutory rape laws have a checkered past. A primary purpose was to
guard the virginity of young maidens against seduction by unscrupulous
cads. To give up one's "virtue" to a man who was unwilling to pay with
his hand in marriage was foolish and presumptively a product of
youthful, poor judgment.
Such laws had more to do with preserving female virginity than with
the force and violence that define rape. One sign of this is the fact
that a man could (and in some states still can) defend himself against
statutory rape charges by proving that his victim was already sexually
experienced prior to their encounter (and thus not subject to being
corrupted by the defendant).
Justifications for statutory rape laws Despite their unsavory
beginnings, however, some feminists have favored these laws as well.
Progressive women supported such statutes mainly as measures to help
combat the sexual abuse of young girls.
Though a statutory rape charge would not require proof of force or
coercion, feminists observed, young girls were (and may continue to be)
especially vulnerable to being raped by the adults in their lives. In
one study, for example, seventy-four percent of women who had
intercourse before age fourteen and sixty percent of those who had sex
before age fifteen report having had a forced sexual experience.
In addition, prosecutors attempting to prove rape in court have
historically faced significant burdens, such as corroboration
requirements premised on the complaining witness's presumptive lack of
For many years, legal thinkers like Eighteenth Century British Jurist
Sir Matthew Hale were convinced that rape "is an accusation easily to be
made and hard to be proved, and harder to be defended by the party
accused, though never so innocent." Thus, rape law did not provide a
reliable or efficacious vehicle for addressing most sexual violence, and
it continues to be of limited utility for acquaintance rapes, as I
discussed in an earlier column.
For this reason too, feminists may have viewed statutory rape laws as
a godsend. As long as there was sexual intercourse and an under-age
victim, the jury could convict. And more importantly, that possibility
itself might deter real sexual abuse.
Is statutory rape just rape without proof of one element? Viewing
statutory rape laws as salutary in this way does raise a serious
problem, however. In In Re Winship, the U.S. Supreme Court required that
prosecutors prove every element of a crime beyond a reasonable doubt
before a conviction can be constitutionally valid. Removing the "force"
element of rape and leaving only intercourse and age might seem to
amount, from some perspectives, to a presumption that the force element
of rape is established, without the prosecutor's having to prove it and
without the defense even having the option of affirmatively disproving
Such a presumption allows for the possibility that a fully consensual
sexual encounter will be prosecuted and punished as rape. Some might
understandably believe that this unfairly subjects essentially innocent
men to unduly harsh treatment, simply in the name of deterring other,
unrelated men from engaging in very different and far more culpable
sorts of conduct.
Responses to concerns about prosecuting consensual sex There are two
potential responses to this concern. First, at some level, we might have
doubts about the competence of a minor to "consent," in a meaningful
way, to sexual activity. Because of her youth, the minor might not fully
appreciate the full physical and emotional implications of her decision
(including the possibility of offspring for which she will likely have
little means of support).
Of course, many adults might also fall into this category, and the
decision to treat intercourse as distinctive in this way may simply
represent a revival of the old view that maidens should be protected
from the corruption of their virtue. Why, otherwise, should girls who
are sexually attracted to men be considered the men's victims rather
than participants in arguably unwise and socially costly but mutually
Another response to the concern about innocent men is more in keeping
with feminist concerns. It is that when sexual activity with a minor is
truly consensual, the activity is unlikely, at least in modern times, to
be prosecuted. In other words, to the extent that statutory rape is
truly a consensual and therefore victimless crime in a particular case,
it is highly unlikely to generate a criminal action.
In the Dixon case, for example, the 15-year-old victim claimed that
the defendant “tracked her down in a classroom trailer that she was
cleaning as part of her duties in an after-school job, asked if she was
a virgin, grabbed her arms, unbuttoned her pants and raped her on a
table.” This description renders the statutory rape and aggravated child
molestation prosecution something other than the state targeting
consensual activity for unduly harsh punishment.
Though Dixon was acquitted on the rape charge, that fact does not
rule out the possibility of sexual assault. It means only that the jury
was not convinced beyond a reasonable doubt that Dixon forced the
15-year-old girl to have sex against her will.
The normative question, then, becomes this: Is the likelihood that
consensual sex will be punished by imprisonment sufficient to override
the benefits of statutory rape legislation in facilitating the fight
against actual sexual abuse of young adults?
Is convicting in the absence of force unacceptable? One reaction to
this question is that even the theoretical possibility of convicting in
a case of consensual sex is unacceptable and unconstitutional.
Prosecutors and juries, on this reasoning, should not have the option of
finding a person guilty in the absence of force, regardless of how
unlikely they are to exercise that option. Consensual sex is not
The assumptions underlying this reaction, however, though
understandable, are at odds with other areas of the criminal law.
Consider drug laws. Possession of a large quantity of narcotics is
regularly treated as a far more serious offense than possession of a
smaller quantity. One reason is that the first is viewed as possession
with the intent to distribute (that is, drug dealing), while the second
is thought to be consistent with personal use. Since legislators and
others view dealing as much more harmful than mere possession, the
penalties are accordingly more severe.
Yet possession of a large quantity of drugs, though highly
suggestive, is not necessarily accompanied by an intent to distribute. A
person might, for example, possess large amounts of drugs to avoid
having to risk apprehension or sources drying out, through repeated
Suppose the drug statute did require proof of intent to distribute.
If so, then the judge would, on request, have to instruct the jury that
the bare fact of quantity alone is enough for a conviction only if the
jury draws the inference, beyond a reasonable doubt, that the defendant
intended distribution. Without such a finding of intent, the jury would
have to acquit.
With the statute providing instead that quantity is the sole element,
however, intent becomes legally irrelevant. As a result, even the
prosecutor and jury who know that the defendant is simply saving up for
an anticipated heroin shortage rather than planning to deal drugs, can
convict the defendant of the more serious felony without giving rise to
any grounds for appeal.
By crafting a statute without an “intent to distribute” element, in
other words, legislators target distribution without requiring its proof
(or even allowing for its disproof). One might characterize this as an
end-run around the constitutional requisite of proving every element of
guilt beyond a reasonable doubt.
The same “end run” accusation can be leveled against statutory rape
laws. Young girls may represent a substantial portion of rape victims,
perhaps because they are vulnerable and have not yet become sufficiently
suspicious of the people around them. In most cases, moreover, a truly
consensual encounter with a minor will probably not be brought to a
prosecutor's attention or trigger the prosecutorial will to punish.
As with drug possession laws, then, the omission of a requirement
that would pose proof problems might generally serve the interests of
justice, despite appearances to the contrary.
Consensual sex with minors is not a fundamental right What permits
legislatures the discretion to enact such laws, ultimately, is the fact
that (like drug possession), consensual sex with minors is not a
constitutionally protected activity. Even if it is victimless, sex with
a minor may be criminalized and punished severely without resort to a
force requirement. Indeed, it once was punished routinely in this way,
because of misogynist concerns about preserving female purity.
In modern times, though, when consensual sex among teenagers is
generally understood to be both common and profoundly different from the
crime of rape, there might still be a role for statutory rape laws in
protecting young girls from actual rapists, through deterrence and
through the real possibility of retribution.
Racism raised in the Dixon case A remaining concern is the worry
about racism specifically, and discrimination more generally, that
arises whenever officials are vested with a large amount of discretion.
In Dixon's case, one witness testified that the victim said that the
sexual intercourse in question was consensual but that she claimed it
was rape to avoid the wrath of her violent, racist father. This
testimony may have given rise to reasonable doubt in the jury on the
In easing the burden of proof at trial by eliminating the requirement
of proving force, then, the law does permit unscrupulous prosecutors and
complainants to bring charges on the basis of what is truly victimless
One does wonder, though, why a girl would tell a violent and racist
father about a sexual encounter with a black man in the first place,
rather than simply keeping the information from him, if the encounter
were actually consensual.
Are statutory rape laws worth their cost? In short, the crime of
statutory rape may have originated from repressive and misogynist
conceptions of sexuality. Nonetheless, it has (and may always have had)
redeeming characteristics, even from an enlightened perspective that
takes into account the realities of prosecuting rape and of women's
equality. It makes it easier, for example, to prosecute and thus to
deter real rapists who count on jury skepticism about acquaintance rape
Still, reducing burdens of proof relies a great deal on trust
victims and in prosecutors — that the omitted element will truly be
present when cases come to trial. If and when that trust is misplaced,
as may or may not have happened to Marcus Dwayne Dixon, a grave
injustice can result.
By Sherry F. Colb
16 February 2004