§33.08 STATUTORY RAPE

• Jurisdiction: United States

§33.08. Statutory Rape¹⁶⁹

So-called "statutory rape" involves a different type of unlawful sexual intercourse from the kinds discussed in previous sections of this chapter: it involves sexual intercourse by a male with a female of such a young age that the law conclusively presumes that she is incapable, because of her age, of consenting to the intercourse. It is assumed that the girl, because of her youth, cannot fully understand the moral, psychological, and physical significance of that to which she may have "consented." Therefore, the male is guilty of statutory rape if he has intercourse with the underage female, even though there is no force or fraud involved by the male. In addition, the offense is one of strict liability:¹⁷⁰ even if the male reasonably believes that the female is old enough to consent, he is guilty of the crime nonetheless.

The "age of consent"—the age at which a female is considered old enough to consent to intercourse—varies by state, but can be as old as 18 years of age.¹⁷¹ Many states today have divided the offense into degrees, depending on the age of the female, and sometimes based on the disparity of ages between the defendant-male and the female. For example, Alabama treats sexual intercourse by a female under 12 years of age as rape in the first-degree if the male is at least 16 years old; it is rape in the second degree if she is between 12 and 16 years of age and he is at least two years older than she.¹⁷²

In earlier centuries, the assumption of sexual naivete of most "underage" girls may have been justified, but today it is far less so. Nonetheless, statutory rape laws are still considered appropriate to reduce the risk of sexual exploitation, particularly by older males, unplanned pregnancies,¹⁷³and the psychological and economic effects of early sexual relations and pregnancies.

Statutory rape laws have been unsuccessfully attacked on constitutional grounds. It has been argued that the offense, which only protects underage females and not underage males who may be exploited by older females, violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Courts have held that the gender distinction is justified because of the distinct harm that only a female can suffer — pregnancy.¹⁷⁴ Similarly, attacks on strict liability statutory rape laws, on the ground that they result in disproportional punishment of some violators, have failed, even though the offense is often punished...