Should a Minor Have the Right to Say Yes? : Law: Two Florida men were accused of having sex with underage girls who gave consent. Charges were dropped in a ruling that may trigger child-rights showdown.

Erik Rodriguez and his 16-year-old girlfriend want to get married. The couple live together in his parents’ house, and she has made no secret of her desire to become pregnant.

Steve Williams, who works as a golf course landscaper, doesn’t have a steady girlfriend. But one day last year he did have sex with a 15-year-old girl from his neighborhood who had skipped school and had expressed no concern about the tryst, he says, even when “I kept telling her we could get into trouble.”

Rodriguez and Williams do not know each other. They have never met. Nonetheless, as a result of what each thought of as the most private of moments, the men have been charged with statutory rape and linked in a historic challenge to a law designed to protect children from sexual predators.

Weeks after an unprecedented court ruling that allowed 12-year-old Gregory Kingsley to sever all legal ties to his natural mother, the rights of children to make decisions for themselves is about to be tested again in Florida.

The question, as emotionally charged and legally complex as parental custody, is this: Can a mature minor consent to sex with an adult?

Williams, 21, and Rodriguez, 20, were charged with statutory rape after police and prosecutors received separate complaints from relatives of the two girls. In both cases, the men and the girls agree that the sex was consensual. Neither of the girls wanted the cases prosecuted.

In July, Judge Jerry T. Lockett of Lake County--the same central Florida county from which the Kingsley case arose--dismissed the charges as a violation of the state’s privacy amendment, which three years ago was found to guarantee a minor’s right to an abortion. Thus, wrote Lockett in his order, “if a minor is sufficiently mature (such that the law has to) accept her consent alone to an abortion, surely she may consent, as a matter of law and privacy, to the act which led to the necessity for the abortion, i.e., sexual intercourse.”

Lockett’s ruling applies only to the cases of Williams and Rodriguez, which became linked when the public defender representing both men filed a joint motion.

But the decision has already led to heated rhetoric in the debate over family values and seems certain to result in another high-profile judicial showdown over a child’s rights and society’s interest in protecting minors. And the state, for its part, has filed notice of appeal.

“Neither this (rape) case nor the Gregory K. case gives minors free rein over all decisions,” says Jerri A. Blair, the attorney who represented Kingsley. “But it does say that courts should hear children and start viewing minors in the context of whether they are mature enough to make decisions.”

According to some legal scholars, the challenge to Florida’s statutory rape law is likely to end up in the U.S. Supreme Court and to provide a precedent affecting similar laws in other states.

“It’s a unique case, and not an easy case,” says Bruce Rogow, the Nova University law professor who successfully defended the rap group 2 Live Crew on obscenity charges in 1990. “I see it as a contest between individual rights and the state’s attempt to set a proper moral tone.”

Civil libertarians, meanwhile, have lauded Lockett’s decision. “The law is antiquated, unfair and does not recognize the reality of today’s sexually active teen-agers,” says Robyn Blumner, executive director of the American Civil Liberties Union of Florida.

Prosecutors disagree. “The state privacy amendment (cited by Lockett in his ruling) does not have anything to do with people age 18 and over preying on little children,” says Florida Assistant Atty. Gen. Joan Fowler, who is expected to argue the case before the U.S. 5th Circuit Court of Appeals early next year. “Children cannot legally consent to sex. Children still need to be protected. That’s purpose of the law.”

The law in this case is the 1943 statute that forbids “lewd, lascivious or indecent assault” on or in the presence of a child under age 16. Furthermore, the law says, neither the “victim’s lack of chastity” nor “the victim’s consent is a defense to the crime.” Conviction of the second-degree felony is punishable by 15 years in prison.

Lockett’s decision to throw out the charges against Williams and Rodriguez was based on the same 1989 Florida Supreme Court ruling--called the TW decision--that enabled Kingsley to sue for the right to end legal ties to his mother and be adopted by the foster parents with whom he has lived for the last year. After a nationally televised trial in Orlando, a judge granted the boy’s request.

Lake County Assistant Public Defender William H. Stone, who represents Rodriguez and Williams, cited the TW decision in moving to dismiss the charges. He argued that the law represented “governmental intrusion (in violation of) fundamental rights to privacy” guaranteed by the state constitution.

Lockett agreed. In his six-page order, the judge not only cited the TW decision but also added that “consent must be a defense to the crime . . . (since) ‘statutory rape’ statutes were enacted originally based upon the presumption that victims of less than a certain age were legally incapable of giving their consent to sexual intercourse.”

But times have changed.

Williams and Rodriguez are unlikely players in a legal drama with such potentially far-reaching consequences: Neither has a criminal record. Neither could have imagined being written about or being invited to appear on nationally televised talk shows as a result of behaviors they know are common among their peers.

Williams described the girl he had sex with as “a casual friend,” someone who lives two blocks away from his home in the small town of Eustis. The charges against Williams were based on a complaint from the girl’s mother, who--after learning that her daughter had skipped school to meet Williams--felt that Williams’ parents did not respond appropriately when told of their son’s actions, according to Stone.

“Her parents really wanted me to go to jail,” says Williams, who has been mulling over an invitation to appear on Sally Jessy Raphael’s television talk show. “But I didn’t do nothing wrong. We consented.”

Rodriguez, who lives in St. Cloud, was charged after a complaint from his girlfriend’s sister. In his decision, Lockett said the girl “vehemently desires” the charges be dismissed and further commented that the victim “believes she is pregnant, a result which she desires.”

“Parenthetically,” the judge wrote, “the court noted the victim and the defendant sitting together, holding hands, on numerous occasions both in the lobby and in the courtroom.”

The California statutory rape law, which applies only to females under age 18, was upheld in 1981 when the U.S. Supreme Court, in a 5-4 decision, ruled that it did not discriminate against a Sonoma County man who challenged its gender bias. Although no challenges to the California statute have been mounted recently, Carol Sobel, senior staff counsel for the ACLU of Southern California, says, “The question of minors’ privacy rights is just coming up to the courts now. (The idea) that all sexual activity is coerced or illegal is an issue being raised.”

Stone, the public defender, charges Lake County prosecutors with using the statutory rape law in an attempt to impose “a puritanical outlook on lifestyles.”

But Lake County Assistant State Atty. John Carnahan bristles at that charge.

“I believe in the statute,” he says, “both from the legal point of view and as a correct statement of where our society ought to be.”

Lockett, who is Blair’s former law partner, is known as a conservative judge and not an activist bent on doing away with laws designed to protect minors. In his opinion in the rape case, he urged the Florida Supreme Court to re-examine “the broad language of the TW decision” and provide more guidance to state trial judges.

The ACLU’s Blumner, meanwhile, contends that rape laws based on the age of the minors may be outmoded.

“Making it illegal to engage in sexual activity is not a protection,” says Blumner. “There are laws against rape, but people are raped. The question here is one of consent. Can a 6-year-old engage in consensual sexual act? Clearly, no; they don’t have the capacity to decide. But can a 14-year-old? Possibly.”

The balance between individual rights and protecting minors might be struck by allowing a consent defense, Rogow suggests. In that way, minors would be presumed incapable of consenting to sex, but defendants would be able to present evidence to the contrary in court.

Meanwhile, Stone represents three other men charged with rape in similar circumstances. All the cases, he contends, are a waste of time and money.

“There’s nothing difficult about these prosecutions,” says Stone. “They are easy to file, and they boost convictions statistics. We need more pragmatism. We need the prosecutors to explain to parents that they have to go have a talk with their daughter or son instead of shucking it off on government to solve their problems. We have more important things to do than bother with stuff like this.”

The Law in Question

The Florida law: State statute 800.04, which describes statutory rape as “lewd, lascivious or indecent assault or act upon or in the presence of a child,” a second-degree felony. A child is defined as anyone, male or female, under age 16.

What it says: “Neither the victim’s lack of chastity nor the victim’s consent is a defense to the crime.”

The penalty: A maximum of 15 years in jail.

In California: The statutory rape law here applies only to females under age 18.