The term statutory rape is used when the law presumes people under a certain age to be unable to give informed consent, and therefore define sexual contact with them as a felony regardless of the minor's actual consent. In this case, the age at which individuals are considered competent to give consent is the age of consent. There may actually be several ages of consent within a jurisdiction for different offences.
The crime of statutory rape was introduced into English law as a felony by the Statutes of Westminster [3 Edw, c.13, 1275] and later made a capital offence [13 Edw, c.34, 1285]. It was defined as
- a man (or boy)
- having (vaginal) intercourse with
- a girl
- less than 12 years of age
- not his wife.
It carried over to United States law and together with sodomy it constitutes the core of the sexual offences in the Anglo-Saxon tradition. Most clauses of the definition have, however, undergone important changes in recent years. Only the marital exception ("not his wife") remains yet unchanged.
The following currently only deals with United States law.
The age limit (commonly called age of consent) remained at ten or twelve years until the 1880s (Cocca, p. 23f., has a table). Following its raising in England by the the Criminal Law Amendment Act [48 & 49 Vict., c.69, 1885], a coalition of progressives, feminists, and religious conservatives was formed and successfully lobbied for a higher limit. It is remarkable that this coalition would remain essentially stable for more than a century, in spite of fundamental differences.
The offence now was more akin to seduction and from it the defence of promiscuity entered the law of statutory rape, its protection was now restricted to (evidently) white girls of ‘previously chaste character’. Another change that came about was the introduction of "age-span" provisions, first in New York, then, much later in many, but not all, other states. These provisions sought to decriminalise same-age sexual behaviour, albeit half-heartedly as often minor offences remained in effect that covered exactly these cases.
Broadening the definition
Part of the "rape reform" under way in the 1970s was to include other kinds of sexual activity besides vaginal intercourse in the definition in order to protect very young children.
The feminist agenda also encouraged use of gender-neutral language, which is now employed in every U.S. state.
Taken together these changes make statutory rape a very broad offence.
It should be said that statutory rape laws are very controversial and some consider them being unconstitutional. They point out that although the presumption of innocence is used in practically all other criminal cases, including murder of children, it is not used with respect to statutory rape, for which offences are measured only on the basis of age of the victim. That is, in murder cases the accused has the opportunity to provide evidence that he didn't kill the victim, but in statutory rape cases violence is assumed per si, through a conclusive presumption, solely on the basis of the age of the victim and regardless of any evidence to the contrary.
Therefore, even though all defendants in statutory rape cases have the right to an attorney, to speak in court, to a fair defense, to present mitigating circumstances, to a fair trial and the right to appeal, all these rights only serve as a way to determine the degree of the penalty to be applied, and the accused is already considered guilty before the trial begins, even when consent is proven beyond any reasonable doubt and when parental consent is documented.
For example, in May 2006, the Irish Supreme Court found the existing statutory rape laws to have been unconstitutional as it prevented the defendant from entering a defence (e.g., that he had assumed the other party was over the age of consent). This has led to the release of persons held under the statutory rape law and has led to public demands that the law be changed by emergency legislation being enacted.
- Carolyn E. Cocca: Jailbait : The Politics of Statutory Rape Laws in the United States. — Albany, NY: State University of New York Press, 2004. — xiii, 228 pp., 23 cm. — ISBN 0-7914-5906-3