Last Friday, a New Hampshire jury found Owen Labrie — the St. Paul’s School graduate who was accused of a raping a then-15-year-old freshman girl — not guilty on three counts of felony rape. However, he was found guilty of four sexual-assault misdemeanors, including three counts of statutory rape involving penetrating a minor with his penis, mouth, and finger.
In other words: The jury believed, despite Labrie’s assertions to the contrary, that the two teenagers did have sex. Yet, they were not convinced that Labrie forced the girl to have sex without her consent. However, because New Hampshire’s statutory-rape laws set the age of consent at 16, Labrie’s accuser, 15 at the time of the assault, was legally incapable of consenting to sex. Thus, though he was acquitted of felony rape, Labrie was found guilty of having sex with a girl who was below the legal age of consent.
Every state in the U.S. has some form of statutory-rape law, though the age of consent and level of offense varies. Based on the premise that, until a person reaches a certain age, they are legally incapable of consenting to sex, statutory-rape laws are intended to deter and punish predatory sexual behavior aimed at minors. As seen with the St. Paul’s verdict, forcible rape is often difficult to prove in a courtroom, and statutory-rape laws relieve the prosecution of the burden of proving a lack of consent in cases involving sex with minors. But they come with their own complications with regard to teenage sexuality.
Like many states, New Hampshire’s law includes a “Romeo and Juliet” clause, which is intended to protect teens from criminal charges as a result of having consensual sex with other teens. In New Hampshire, it’s illegal to have sex with anyone under the age of 13. It is a Class B felony to have sexual intercourse with a person between the ages of 13 and 16 if the other party is more than four years older. However, if the age difference between the two individuals is less than four years, the offense is classified as a misdemeanor. Since Labrie was 18 at the time of the assault, he was found guilty on four counts of sexual-assault misdemeanors, each of which come with a maximum sentence of 12 months. Prosecutors have also said that Labrie will be required to register as a sex offender for the rest of his life.
The St. Paul’s case points toward a possibility that concerns some legal experts: While in theory statutory-rape laws are intended to protect minors from sexual abuse, in practice, they can end up being used to punish consensual sex between teenagers. Reading transcripts from the trial, plenty of people would likely agree that, in Labrie’s case, the verdict seems justified. Yet, a growing body of research shows that statutory-rape laws are often selectively enforced with discriminatory outcomes. Historically, evidence shows that statutory-rape laws have disproportionately targeted homosexual relationships. Other research suggests that statutory-rape laws are often selectively enforced to police interracial relationships, and frequently target children from poor and working-class families.
In the U.S., statutory-rape laws have a complicated history. The original laws were gender-specific. According to Jailbait: The Politics of Statutory Rape Laws in the U.S., by Carolyn E. Cocca, England first codified statutory rape in 1285, making it illegal to have sex with a girl under the age of 12 (the age was later lowered to 10). Similar laws were imported to colonial America, though, for the most part, the rationale was less about inability to consent and more about protecting the premarital chastity of white maidens, which was viewed as their fathers' property until they married.
By the beginning of the 20th century, most states had raised the age of consent to 16 or 18. Around the same time, statutory-rape laws began to incorporate requirements that female victims be “of previously chaste nature” — ensuring that the law only applied to taking a young maiden’s virginity, and therefore couldn’t be used to protect women deemed to be of “indecent character.” By an odd-yet-convenient legal loophole, young women who were considered too young to consent to unmarried sex were thought to be mature enough to consent to marriage, and were thus able to have legal intercourse in wedlock. As a result, many women were married with children before the legal age of consent.
In the 1970s, second-wave feminists lobbied for changes to statutory-rape laws as part of a larger push for forcible-rape reform, which included broadening the range of offenses beyond penile-vaginal penetration, eliminating marital exceptions, and preventing a victim’s sexual past from being used as evidence in court. By 2000, all states had adopted gender-neutral statutory-rape laws. Currently, most states have some form of “Romeo and Juliet” clause, aimed to prevent teenagers who are close in age from being prosecuted at the felony level.
According to the Washington Post, 30 states currently consider 16 to be the age of consent; the remaining 20 states set it either at 17 or 18. However, statutory-rape laws remain controversial, since in many cases, they treat consensual teenage sex as a crime. The common logic is that, if sexual activity with a minor is truly consensual, it’s unlikely to be prosecuted. However, some legal experts have expressed concerns that this approach to legislating sex with minors often results in injustice. In a recent letter to the New York Times, Michele Goodwin, a professor of law at University of California, Irvine, expressed concern that “no coherent framework has been offered by politicians that responds to the contemporary realities of adolescent sexuality.” While arguably well-intended, statutory-rape laws remain an imperfect solution to punishing the sexual abuse of minors — and are often enforced in ways that perpetuate stereotypes and bias.