Good, Bad and Wrongful Juvenile Sex: Rethinking the Use of Statutory Rape Laws Against the Protected Class

Abstract

This Article considers the question of whether statutory rape laws can and should be used against members of the class they were designed to protect. Many commentators have argued that meaningfully consensual sex among similarly situated and sufficiently mature teenagers should be beyond the scope of strict liability rape laws, but the question becomes more fraught in the context of the “contested outer limits” of adolescent sexuality – sexual contact among children and adolescents that offends social norms, leads to harmful outcomes or appears to be exploitative. What are the implications of using statutory rape laws against minors to target “bad sex”?

I contend that even in relation to “bad sex”, there are serious policy and constitutional objections to the use of statutory rape laws against a member of the class they are designed to protect. In jurisdictions without all-encompassing age-gap provisions, the response to sex among adolescents needs to be reformulated to ensure that the use of statutory rape laws against minors is confined to cases involving wrongful, as opposed to mere bad, sex, and is predicated on a clear and objective definition of exploitation, as opposed to mere fornication, as the punitive target.

Keywords: criminal law; statutory rape; children; juveniles; adolescents; sex; Romeo and Juliet