Statutory (is Not) Rape: Reshaping the Criminalization of Underage Sex, and Beyond

Abstract

Statutory rape is a unique form of rape, age-dependent, on the one hand, and consent-indifferent, on the other hand.

This ancient offense had historically aimed to protect little girls' sexual chastity as parental property. Although this rationale is outdated and obsolete, the offense has survived. The battle against underage intercourse endures, relying on the age of victims or age disparities to base the assumption, that intercourse, even with consent, is nevertheless unwanted, causing teenagers physical and emotional harms.

When carefully reviewing the modern attributed rationales of the offense, we find some unconvincing so-called harms, on the one hand, and incoherency of over-inclusiveness and under-inclusiveness, on the other hand. Age and numbers ease legal enforcement, prosecution and conviction, as well as social condemnation. However, they also flatten the offense, over-criminalize, and focus our attention away from the main problem: preventing sexual exploitation.

The article proposes to reform statutory rape law, to better fit the rationale of preventing sexual exploitation and negate over-criminalization, either by including exploitation as an element of the offense, or by creating a unique defense of proving its absence. What is wrong in underage sex is not really age or age disparity, but something much more significant: abuse of power, lies and manipulation, disrespect and objectification.

This valuable normative lesson exceeds statutory rape. This article calls to further utilize the refined normative basis, to tackle other facets of sexual exploitation, far outside the realm of underage sex, and protect adults from offensive social norms and practices, that are currently uncovered by the present rape offenses.

Keywords: rape, statutory rape, underage, intercourse, juvenile, minor, pregnancy, harm, consent, paternalism, exploitation, abuse, criminalization