By Aara Ramesh
The exploitation of children is a real and present problem, one that has only worsened — like many others — as a result of the Covid-19 pandemic. Children are roped into forced labor; they are trafficked for sex; they are coerced into the production of child sexual abuse material — the list of crimes goes on.
There are, thus, many laws in place designed to protect children across these areas of concern. One extremely complicated example is that of the age of consent, both when it comes to sex and marriage. In the U.S., these laws vary from state to state and may have different exceptions and caveats in different jurisdictions.
Sexual coercion of children has been a long-standing problem across the world. One Department of Health and Human Services report from 2004 highlights the statistic that “adolescents who are sexually active at a young age are more likely to have experienced coercive sex.” Further, almost 75% of women who had had sex before the age of 14 and 60% before the age of 15 “reported having a forced sexual experience.”
Worryingly, the same report cited research that said half of all children born to minor girls were fathered by adult men, and the sexual partners of these young mothers were often 3–6 years older than them.
In today’s piece, we take a look at the history of the concept of an age of consent, and some aspects of this many-sided die.
According to most countries’ laws, a child is not considered to be capable of consenting to sexual activity. Who is defined as a “child,” however,” varies from country to country, and in the U.S., from state to state. In America it is generally understood that any sexual activity with children below a certain age are, thus, coercive by nature, regardless of whether both parties consented, because the underage party is not capable of consenting, legally speaking.
There are many different factors to consider here. One is the age of consent, i.e., the age at which “an individual can legally consent to sexual intercourse under any circumstances.” Another is the minimum age of the victim, which refers to the age “below which an individual cannot [legally] consent to sexual intercourse under any circumstances.”
Also taken into consideration in some states is the age differential, i.e., the difference in age between the victim and so-called “perpetrator” or “defendant.” Other factors that may be considered include when the sexual relationship began and the ages of the two parties at that time.
The way this may work, for instance, in Pennsylvania, is as follows: the law states that children younger than 13 years old cannot consent legally to any sexual act (this is the minimum age, then). Children between 13 and 15 years old are not considered able to consent to sexual activity with anyone who is four or more years older than them (this is where the age differential comes into play). Anyone 16 or older can legally consent to sexual activity (i.e., the age of consent is 16).
It’s hard to find an official list of the different age of consent and statutory rape laws. However, the Rape, Abuse and Incest National Network (RAINN) has made available a fairly comprehensive resource that can be found here.
A Brief History
According to some historians, when early statutory rape laws were introduced in the 1200s (around 1275 in England), the aim was to “protect the chastity of young women.” They were initially conceived as a way to protect girls, and girls alone. The experiences of boys and men were not considered relevant to this discussion. And it had more to do with protecting girls from “ruin” than from any modern understanding of how childhood sexual abuse and trauma can shape the development of an individual.
By 1880, many Western countries had established an age of consent around 12 or 13 years old. This ticked up to around 14 or 15 years old in Europe in the 1920s, and to around 16 in North America, mostly as a result of the burgeoning feminist movement and anti-prostitution sentiment among the public.
The debate, like our concept of “childhood,” has evolved over the centuries with changing social mores. In the 1970s, second-wave feminists began arguing for sexual liberation for young women and for gender equality in rape laws. As a result, language was modified to be more gender neutral, applying not just to “females” but to boys and men as well. It still, however, only applied to heterosexual intercourse, thereby discounting many cases involving young boys being abused by older men, for instance.
More recently, a few decades ago, the debate became characterized by a rising teen pregnancy rate. Then, as reports of systematic, complicit, and covert abuse by representatives of various organizations, like teachers, sports teams, the Catholic Church, and the Boy Scouts of America began to emerge, the narrative shifted once more.
This latter period has also shed a light on the widespread epidemic of abuse of young boys and men going underreported and unnoticed, as previously statutory rape and age of consent issues were seemingly considered only in regards to girls and young women.
As such, the purpose behind enforcing such laws has changed as well. Nowadays, much like with child labor regulations, age of consent decrees are enacted so as to protect minors, who are vulnerable, from sexual exploitation.
Today, the age of consent across the world varies from 13 to 18, as it does within the U.S., typically between 16 and 18 years of age. To put it simply: “More than 800 years after the first recorded age of consent laws, the one constant is the lack of consistency.”
The debate over age of consent and statutory rape is characterised by many viewpoints, but two primary ones are the desire to protect children from harm, on one hand, but also to allow young people — particularly women — to exercise their own sexual expression, freedom, and autonomy without being subject to legal worries under the guise of moral policing.
In addition to the aforementioned child abuse and pedophilia, there are other aspects that ought to be considered. One of these is the issue of child marriage.
Unbeknownst to many, the U.S. actually has a child marriage epidemic of its own. Per some estimates, around 300,000 children under the age of 18 were married between 2000 and 2018 in the U.S. In July, the state of New York raised the age of consent for marriage to 18; it had been 14 until 2017, when it was raised to 17 with parental or judicial consent.
Similarly, just last month, North Carolina’s legislature moved closer towards passing a bill that would make it more difficult for adults to marry children in the state. The bill would raise the minimum age of consent for marrying to 16, from the current 14, and would limit the age gap between a 16-year-old and potential spouse to four years. North Carolina is currently one of the most popular regional destinations for such unions, with around 93% of the state’s child marriages in 2019 involving one adult party (as opposed to two minors getting married).
Having age of consent laws in place ostensibly protects children from being married off, in some cases to their rapists or to predators who groomed them. Take the infamous case of Mary Kay Letourneau, the teacher who raped Vili Fualaau, a 13-year-old student of hers, only to marry him after she was released from prison. The couple had two children together before Fualaau was even 15 years old.
Though both parties said their relationship was consensual, it is generally understood that Fualaau was too young to be able to knowingly consent to sex and fatherhood, even if they married when he was legally an adult.
In a 2018 documentary, Fualaau characterized the episode as such: “At the end of the day, it was a real love story.” But, crucially, he added, “A lot of things that should have gone through my mind at the time weren’t going through my mind.”
“Romeo and Juliet” Laws
Another gray area in this legal battle is the distinction between adults preying on vulnerable minors, and adolescents, a handful of years apart in age, engaging in sex. Some say that “low-risk adolescents” should be allowed to engage and experiment with sex without fears of facing a steep jail sentence, fine, or an entry onto the sex offenders’ registry. Engaging in sex should not condemn a teenager to a lifetime of unintended consequences and punishment.
Often called “Romeo and Juliet” cases, the term traces its roots back to the eponymous play by William Shakespeare, in which Romeo was believed to be around 16 years old and Juliet 13. In modern times, as they consummated their secret marriage, Romeo could, in some states, be labelled a sex offender. Note: this situation would undoubtedly be an example of child marriage as well.
For instance, the case of Genarlow Wilson, a young Black man who, at 17, engaged in a sexual act with a 15-year-old girl in 2003. Wilson was accused of, prosecuted for, and convicted of aggravated child molestation as a result. The mandatory minimum sentence for the crime was 10 years. Wilson served two of those years in prison before the Georgia Supreme Court overturned his conviction and released him from incarceration in 2007, when he was 21.
Another article cites the example of Shane Sandborg and his wife Kristina, who met and fell in love when they were 17 and just under 16, respectively. They married and Kristna fell pregnant. When police found out, they charged Shane with criminal sexual abuse, and he was put on the sex offender registry for ten years. Despite being married, with three children, Shane could not attend school functions, or go to the park with his child out of fear of being caught out in violation of the conditions of his conviction.
In most cases, these sorts of “Romeo and Juliet” laws state that individuals with an age difference between (typically) two to four years are not considered offenders or predators if they engage in sexual activity. Some states may also require there to be proof of a “dating relationship” along with those age differences.
The problem, according to one researcher, is that these laws are not applied uniformly. Whether a person in such a circumstance is charged depends on the prevailing mood in the community, the police, the parties involved, the prosecutor, and, often, on “how angry the parents of the younger party are.”
It is rare, some experts say, for those caught in a “Romeo and Juliet” situation to be violent offenders, if they can be called offenders at all in some cases. As such, the argument goes, they should not be penalized with a lifelong spot on the sex offenders’ registry.
With adult predators there is always the real risk of re-offending, which is why things like the sex offender registry exists in the first place. But, with adolescents in relationships, this may not necessarily be the case. It just might be a situation of two teenagers in love. Said Tonia Maloney, president of Illinois Voices for Reform, in 2011, “The majority of these guys are no threat to anyone,” yet they are treated “exactly the same as a child molester or a rapist.”
There are few who would argue that the existing system is unnecessary. Unfortunately, people do co-opt very genuine concerns to suggest that there need not be age of consent laws, citing historical societies as proof that adults have long had sexual relationships with minors, to no ill effect. This is not the case, as organizations like RAINN make clear. Child sexual abuse, assault, molestation, trafficking, victimization, and grooming are real and very urgent threats.
But, many say, this system should not be etched in stone. The trade-off between protecting children and allowing older teens the space to explore their sexuality does not need to be a binary one. As the definitions of childhood and sexuality have evolved over the last millennium, so too must the system instituted to protect children.