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The Intimacy Discount: Prosecutorial Discretion, Privacy, and Equality in the Statutory Rape Caseload

61 Pages Posted: 29 Sep 2006  

Kay L. Levine

Emory University School of Law


Using qualitative data, I examine prosecutors' discourse regarding the effect of defendant-victim intimacy on prosecutorial understanding and handling of statutory rape cases. Prosecutors collectively and individually construct a dichotomy between exploitation and intimacy by first categorizing the behavior and status of defendants, victims, and their families, and then deploying those constructions when making case management decisions. Distinguishing between exploitation and intimacy helps prosecutors to use their resources more efficiently, to maintain credibility with the judiciary and the defense bar, and to serve substantive justice goals. But their assessments depend largely on an understanding of intimacy as privacy, as they focus more on the formal existence of a relationship than on the substance of that relationship or true equality between the partners. By sharply limiting the kinds of sexual encounters that qualify as intimate and therefore as deserving of a discount at filing or sentencing, prosecutors erect normative standards of moral character and invoke outdated sexuality norms that disadvantage vulnerable populations. Moreover, the intimacy discount shields from public and judicial scrutiny the full reach of the statutory rape law, which likely fosters its longevity in the face of controversy.

Keywords: prosecutorial discretion, sex crimes, statutory rape

Suggested Citation

Levine, Kay L., The Intimacy Discount: Prosecutorial Discretion, Privacy, and Equality in the Statutory Rape Caseload. Emory Law Journal, Vol. 55, p. 691, 2006; Emory Public Law Research Paper No. 06-25. Available at SSRN:

Kay L. Levine (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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