Statutory Rape: When Is a Crime Not a Crime?

The investigation was long, embarrassing and ultimately fruitless. With frustration, a Massachusetts district attorney announced early last month that without cooperation from the alleged victim, a teenage baby sitter, he could not bring charges of statutory rape against a member of this country’s most prominent political family, 39-year-old heating-oil executive Michael Kennedy.

But even in dropping the inquest, authorities managed to focus attention on a crime that seemed to have wandered out of an earlier era, a time when young women were known as jail bait. If accusations that he had sex with the baby sitter before she turned 16 served to tarnish Kennedy, they also reminded the public that a generation or more of sexual latitude did not wipe statutory rape laws off the books.

On the contrary, specialists say that after a lengthy period of relative dormancy, proscriptions set into place thousands of years ago with the Code of Hammurabi are returning. Motives for reviving these old regulations span the gamut from welfare reform to concern about teen pregnancy to a general angst about the oversexualization of this country’s young people--and reactions to the resurrection of statutory rape laws range just as broadly.

Some of the same factions that urged repeal of statutory rape laws in the sexually relaxed 1970s now view their enforcement as proof that America is moving toward more vigilant child protection policies in the 1990s; in an odd way, radical feminism and puritanism have become surprise allies on this issue. Many liberals and conservatives also find themselves in accord that sex between 14-year-olds and 40-year-olds is cause for legal opprobrium.

Especially in California, statutory rape is being pursued with new vigor--and with a new agenda. “It’s a huge national topic now,” said Mike Carrington, whose Office of Criminal Justice Planning oversees Gov. Pete Wilson’s stepped-up campaign to encourage prosecutions.

Fifty-three counties are participating in the 18-month-old Statutory Rape Vertical Prosecution Program, with a budget of $8.4 million. The prosecutions have been spotlighted as a key component of the governor’s Partnership for Responsible Parenting Initiative, Carrington said, adding: “California is the only state with this kind of an initiative at this time--although it’s about to be copied all over the place. I’ve never had so much interest in a single program from other states before. It’s wild.”

Under the program, Carrington said, 667 men around the state have been found guilty of unlawful sex with a minor--a conviction rate of “nearly 100%.” The effort is so aggressive that in some counties, investigators cull family support records to locate cases in which a young teenage mother has named a much-older man as the father of her baby.

Thousands more cases “are in the pipeline,” Carrington added, noting that before the initiative, “you’d be hard-pressed to find such a case. The district attorneys didn’t have the time, they didn’t have the resources”--and, he conceded, there wasn’t much interest.

California’s original statutory rape law dates from 1872, but the current regulation was enacted in 1970. Refinements, such as changes in reporting procedures, have continued steadily.

California is among 14 states where the so-called age of consent, when a person can legally agree to engage in sex, is 18. In five states the age of consent is 17; it is 16 in 27 states and the District of Columbia; 15 in two states. Hawaii and Pennsylvania have the country’s lowest age of consent, 14.

While “statutory rape” is widely accepted as a form of legal shorthand to describe sex between an adult and a minor, many states use terms such as “unlawful sexual conduct” instead. Universally, statutory rape laws are gender-neutral. But in fact, older women are seldom charged with engaging in relationships with young males. When an adult man is accused of having sex with a young male, the case generally is pursued under the rubric of child sexual abuse.

In California, it is a crime to have sex with anyone younger than 18 unless the two people are married to one another. An unmarried minor in California cannot legally consent to sex. If the two people are within three years of age of one another, the crime is a misdemeanor in California. With more than a three-year age difference, the adult perpetrator in California can be charged with a felony and may receive a prison sentence of up to four years.

Authorities were reluctant to provide names in these cases, which involve facts that are not public record.

Only weeks ago, for example, a 20-year-old Los Angeles man was sent to state prison for 16 months after admitting that he had been living with a girl who said she was 15 and whose mother said she was 13. Another 20-year-old in L.A. recently got a three-year state prison sentence after his 13-year-old girlfriend gave birth to their child. A 34-year-old Los Angeles video store owner got nine months in jail and five years on probation after admitting he fathered the baby his 16-year-old girlfriend is carrying. The video store owner boasted to detectives that he has three or five other children--he didn’t remember the exact number--with other teenage mothers.

But the 33-year-old mother of a pregnant 14-year-old girl in Los Angeles was outraged when the girl’s 27-year-old boyfriend was charged with statutory rape. Court records show that they had all been living together, and, said Susan Powers, assistant head deputy of the sex crimes division for the L.A. County district attorney, “the mother did not understand why [authorities] were prosecuting this nice man [who] had a high school diploma.”

Some critics of the new push voice similar objections. “To a degree, it is simply misguided,” said New York journalist Sharon Thompson, author of “Going All the Way” (Hill & Wang, 1996), a landmark study of sexual activity among teenage girls. “Probably some of the people who are pushing for it actually think they will reduce teenage pregnancy or protect young girls. But I wonder how it helps the teenage mother and the baby to have the father in jail.”

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Statutory rape prosecutions can be cumbersome because of reluctance on the part of the underage female who may believe that she will be put on trial if she presses charges. Cultural relativism plays a role in this, since in some cultures, women are socialized to regard large age gaps in sexual relationships as normal. And then there is eros. Statutory rape, said criminologist Sharon G. Elstein of the American Bar Assn. in Washington, often involves “victims who really don’t think they are victims, victims who think they are in love.”

But prosecutors, among others, observe that romantic bliss is seldom a component of sexual relationships between young teen-age girls and their older male partners. Nor are these pairings often characterized by domestic or economic stability. “What we found, at least in L.A. County, is that in an amazing number of these cases there is a lot of duress and coercion, a lot of family violence and domestic violence,” Powers said.

“A lot of these girls are being injured or stalked or threatened. We also find a large percentage of men that go out into the community and are having sexual relationships with many different teenage girls. Some of them are getting many different teenage girls pregnant. This is something we didn’t know.”

Convictions would have been almost unthinkable before state funds allowed her office to dedicate two lawyers, two investigators and a secretary to enforcement, Powers said. Yet many officers, detectives and public defenders still question the value of the effort, viewing it as too low on the criminal offense chain to merit such attention. Such detractors say the females involved tend to look more like women than like girls, so why is it surprising that they act accordingly?

A 29-year-old man represented by L.A. County Deputy Public Defender Peter Swarth found himself in just such a situation and is doing time in county jail as a result. Jealous because her 25-year-old boyfriend was “messing around,” a sexually experienced 13-year-old came on to his client, Swarth said.

“She stands about 5-foot-9, she’s built like the proverbial brick outhouse, he figures she’s 19, and they have three different liaisons together,” Swarth said. When a police detective visited Swarth’s client at work, the man freely admitted to having sex with the girl, still believing she was not underage.

“There is no defense after that. The law states that a reasonable mistake is not a defense,” Swarth said. “I can’t imagine anything more undemocratic than not being able to raise a factual or legal defense”--that is, “I had no idea how young she was.”

In this instance, “overzealous prosecution took its toll, absolutely,” Swarth said. Driven by a mandate to increase statutory rape convictions, prosecutors are often overlooking civil liberties, he said. “Everybody is being swept along.”

The “hypocrisy of inconsistent enforcement” is what bothers criminal law specialist Alan Dershowitz of the Harvard Law School. “In California, you can be as old as 17 years and 11 months and it’s unlawful for you to be having sex. That’s ridiculous. Everybody in California is having sex.”

Sending someone to jail “should really require that he did something that we unanimously regard as just horrible,” Dershowitz continued. “Consensual sex with a 15- or 16-year-old is not universally regarded as horrible. It’s very different than what we know to be rape. We’ve all read ‘Lolita,’ and that’s why we have statutes about underage sex. I firmly believe 15-year-olds should not have sex. I also believe that many do. The rational approach is to move the age [of consent] down considerably and not use the law to criminalize acts that take place every day of the week.”

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No data exists on how many older men have teenage partners who do not have babies--as was the situation, all parties involved concur, in the Kennedy case. Until quite recently, even that kind of chronologically lopsided relationship might have been dismissed with a wink and a nod, said Elstein, who for the last year has directed a bar association research project on statutory rape.

“Traditionally we’ve seen a larger societal acceptance for relationships between younger girls and older men. Look at Hugh Hefner, look at Jerry Seinfeld,” she said. But throw in a culturally loaded word like “rape,” Elstein said, and the tolerance goes away. “Statutory rape takes in sexuality, power, gender, race and culture,” she said. The buttons it pushes are political and moral.

The beefed-up drive to enforce laws banning sex between adults and minors began as an effort to reduce teen pregnancies. Recent research by social ecologist Mike Males of UC Irvine put a lie to the assumption that children born to girls under 16 were fathered by males close to the same age. Rather, Males found that “90%-plus of pregnancies for girls who have babies before 16 result from sex with guys older than 16. More than half of this--66%--involves guys who are 19 or more, what we call post-school men.”

Males, author of “Scapegoat Generation: America’s War on Adolescents” (Common Courage Press, 1996), came to this finding via research on effects of abstinence education on junior high students. While concluding that such efforts represent “almost a total waste of time,” he determined that in cases involving very young mothers, “at least a century of statistics demonstrates that we are talking about adult-teen pregnancy.”

Males’ data are supported by research from the Alan Guttmacher Institute, a nonprofit organization that studies population issues, as well as by studies by developmental psychologist Judith Musick, vice chairwoman of the nonprofit Ounce of Prevention Fund, a teen parenthood program in Chicago.

But Musick, one of the first to show a link between early childbearing and older sexual partners, stressed that the number of children born to girls 15 or younger is low, about 6% to 8% of all teen pregnancies. In that context, the renewed zeal over statutory rape regulations represents little more than “one more search for a simple answer when it comes to a policy solution,” Musick said. “It’s like, ‘Oh, now we’ve got it!’ ” Instead, he believes, “It’s one thread, one thread in a giant tapestry. But that kind of ambiguity is hard for people who are making policy to deal with. They’d rather rush from one cause to another.”

Legislators seeking to reform federal welfare policy followed precisely that pattern, in the view of Brian Wilcox, director of the Center on Children, Families and the Law at the University of Nebraska.

The newest federal welfare reform package contains a section requiring states to take action to review statutory rape laws and their implementation, he noted. The notion that babies born to hapless--or hyper-sexed--underage females are a huge drain on welfare coffers even played itself out in the 1996 presidential election, when Republican Bob Dole blamed “older men preying on young girls” for “the plague of illegitimacy,” and called on governors to enforce statutory rape laws.

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Moral dudgeon about underage sex crosses partisan lines, and Dole found himself echoing the “punish the predators” line of thinking espoused by the Progressive Policy Institute, a Democratic Party think tank. With the ABA’s Elstein, Progressive Policy Institute Vice President Kathleen Sylvester has spent more than a year interviewing young women, law enforcement officials and policymakers. Sylvester contends that when young teens are involved, statutory rape is tantamount to child sexual exploitation.

“When a 13-year-old is involved with a 30-year-old, that is an inherently unequal relationship. By its very nature, the relationship is coercive,” Sylvester said. But as a society, “we forgot that. We forgot that girls who look like women are still emotionally and developmentally girls.”

The prism of early teenage pregnancy was a way to reactivate the subject of statutory rape, Sylvester said. “But now we need to broaden the discussion to look at older men and very young girls in general, because they don’t all become pregnant. The effects are just as devastating, because it is exploitation.”

Politicians may be beating the drum of statutory rape, but Elstein, Sylvester’s colleague, said most people would rather not talk about it. “We have a big problem in this society. We’re completely schizophrenic about sexuality, and completely out of our minds about adolescents,” Elstein said. “We wish they would go away and come back when they finish college.”

More than just “a weird political agenda--a perverse political agenda,” said Michelle Oberman, a law professor at De Paul University in Chicago, the new emphasis on this crime “is incredibly revealing. It shows a poignant absence of concern about the overall welfare of young girls. We only care about the girl when she is pregnant, and at that point we do the worst thing we could do--we lock up the one source of support for her and her child.”

Ideally, she said, statutory rape laws “should be rewritten and enforced.” Girls are safe, she said, “in a world where you enforce.”