Greeting, fellow lovers of the law! Today, we discuss something that is surely not likely to be in any way controversial, and that is statutory rape. A recent article, and the comments thereto, brought this topic up-

The issue is that the article re-states an allegation about statutory rape, but later in the article repeats that the police were contacted, but couldn’t do anything as the age of consent in the state is 16. From that, of course, a reasonable and dispassionate conversation ensued regarding the issue of statutory rape.

HA HA! No. Of course not. This is the internet.

But moving away from the specifics of that individual, and that heated conversation, the issue of statutory rape is an interesting prism to look at some other areas of criminal law. To start with, let us post a question to which I hope to provide an answer by the end- why is it called, “Statutory Rape?” In the United States, crimes are all defined by statute. So why statutory rape, and not statutory murder? Statutory arson? Statutory public intoxication?

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And that requires a bit of history. As previously noted in Loki’s Law Blog, we use a common law system. That meant, for a long time, that “crimes” (felonies, for example) were not defined by laws (statutes) written by legislatures, but were defined by the courts in cases. There wasn’t a “law” against murder, instead, “everyone knew” what murder was, and the court applied the common law to decide if you were guilty of it. And the same applied to rape- under the common law, a male could not be convicted of rape if the female consented to the activity (I apologize for using gender-specific terms here, but it was gender specific).

However, in 1275, we had the Statute of Westminster. “The King prohibiteth that none do ravish ... any Maiden within age.” BOOM! Statute. This was construed to mean that females under 12 could not consent to intercourse. About three hundred years later that age was changed to 10 .... um ... progress?

Anyway, to turn this to what matters- ‘MURIKA, we pretty much imported this whole cloth into the colonies, and kept it after we broke free, with the ages being variously 10 or 12 depending on the jurisdiction, remaining unchanged until reformers and progressives in the late 1800s and early 1900s raised the age of consent.

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So, while this was happening, something else was happening as well in the United States. Remember how all of those crimes were “common law” crimes. Well, people began to think that was ... unfair. After all, shouldn’t you have ... NOTICE of what the crime is? Shouldn’t there be a specific PROCESS (the elements of the crime) that needs to be used to convict you- not just what the Court says? Yep, due process baby! Anyway, the states codified the crimes into their laws, and abolished the old common law crimes. So the entirety of the criminal code was “statutory.” But, because of the long history of “statutory” rape, it was grandfathered in as a term that we still use today. In fact, if you look at your particular state’s criminal laws, you won’t find some “statutory rape law,” you will most likely just find a series of definitions under, say, a “sexual battery” statute with ages.

So, the gist of all of this is that “statutory rape” is not a separate crime from “rape rape,” and that there’s nothing special about it being “statutory.” But as shorthand for “having intercourse or other prohibited sexual contact, which is defined as non-consensual due to the age of the person you are having that intercourse or sexual contact with, and therefore sexual battery” it certainly works.

Finally, as a historical matter, like many issues in the law, this can make for interesting further reading. There are further articles out there that detail the advancement and development of statutory rape laws with patriarchal concerns (women and daughters as male property rights), the concomitant changes in America with the Mann Act and the changes to the age of consent, and scholarly work about the lack of protection afforded to racial minorities (and, of course, African-American slaves) in America. It’s a fascinating, if fraught, topic, and worth exploring.