No penis, no problem.

• Author: Levine, Kay L.
• Position: Gendered statutory rape law

For eight months in 1999, a special education teacher in Montrose, New York had sex with several teenaged students during private, in-home tutoring sessions. (1)

In December of 1998, a thirty year-old church choir supervisor in Shrewsbury, Massachusetts had a sexual relationship with a fourteen year-old member of the choir. (2)

In Gwinnett County, Georgia, in 1998, a thirty-six year-old school bus driver exchanged alcohol for sex with a fourteen year-old classmate of the driver's daughter. (3)

In 2002, the forty-six year-old music director of a private school in a Boston suburb had sex with a fourteen year-old at the school. (4)

In 1998, in Antioch, California, a foster parent-foster child relationship led to the birth of a baby boy. (5)

INTRODUCTION

Sex between adults and teenagers is not a new phenomenon. Stories of adults molesting or seducing adolescents have littered the inside pages of newspapers for the past several decades, although the behavior itself can be traced back much farther than that. But the anecdotes mentioned above are not just examples of typical cases. In each of these instances, the sex occurred between an adult woman and an adolescent boy.

Certainly the paradigmatic example of the female child sexual abuser is Mary Kay Letourneau, the elementary school teacher in Washington State who became infatuated with one of her pre-teen students and eventually fathered two children with him. (6) But while the media portrayed her as an anomaly, Ms. Letourneau is merely the most visible member of a class of criminals--adult women who have sexual encounters or relationships with boys, in violation of statutory rape laws in every state in the United States.

Is this a new form of crime? Is the female statutory rapist a new breed of criminal, and the boy a new type of victim? One might think so, given the gendered history of the statutory rape law itself and the academic legal literature on the issue. Legal scholars writing for the past fifty years--a time period that brackets the Supreme Court's decision in Michael M. v. Superior Court of Sonoma Count (7)--implicitly and nearly universally assume that statutory rape defendants are male and their victims female. (8) Moreover, gendered assumptions about the statutory rape drama seem to comport with the obvious facts of life. Society is, after all, dominated by unwritten scripts that tell males and females how to behave sexually and how to respond to stress or fear, (9) and these schemas tend to illuminate acts of male perpetration and female victimization while keeping underground the existence of female-perpetrated abuse and male victimization. (10)

Scientists working in the fields of psychiatry and psychology, however, have uncovered evidence that tells a different story. They have found a surprisingly high percentage of female sex abusers in the population and have documented an extensive array of child sexual abuse committed by women against boys, abuse that includes rape, child molestation, and even incest. (11) In so doing, they have started to identify the motivations that underlie this behavior and to assess boys' experience of sexual victimization, which, contrary to popular belief, can be every bit as traumatic as that suffered by girls. (12)

Today, twenty-five years after Michael M., the academy's failure to notice female sexual exploitation of male minors puts us at risk of unwittingly reinforcing a gender regime in which the rights of both males and females are decimated by biology. Given the scientific data, legal scholars must resist the temptation to rely on the highly gendered notions of age-differential sexual experiences that have animated scholarship in the past. We can and should use studies of female sexual abusers to inform our understanding of female-perpetrated statutory rape and to suggest ways to alter the criminal justice system's responses to both victims and defendants involved in these crimes. To continue to pretend that women are not capable of seducing or manipulating boys to have sex, or to conclude that women who behave this way are too rare to merit attention, will enslave us to the unfortunate habits and stereotypes of the past and cause us to abandon an entire class of victims who deserve better.

The argument proceeds in two parts. Part I documents the statutory rape law's gendered essence, explaining the formal law's traditional gendered classification scheme, the Supreme Court's approval of that approach, and the literature and enforcement policies that have reinforced this division between the sexes over time. A careful review of the history and literature shows that the law itself has fitted us with blinders, compelling us to focus exclusively on harms caused to girls by adult men and to ignore the possibility of female-perpetrated statutory rape of boys, even in the years since the law became officially gender-neutral. Part II begins with a discussion of the societal scripts that constrain our ability to accurately interpret the behavior of both genders when it comes to sex. It then introduces the psychiatric and psychological literature about female sexual abusers and male sexual abuse victims. The evidence we can extract from these studies--about the frequency of female abusive behavior, the nature of such behavior, and the likely motivations of both victims and perpetrators--should inform how we handle these issues in statutory rape literature in the future.

PART I: THE GENDERED HISTORY OF STATUTORY RAPE

Our highly gendered way of thinking about the participants in statutory rape derives, first and foremost, from the statutes that defined the crime for much of its history. In light of the gendered language embedded in the traditional statutory definition of 'age of consent' sex crimes, the equal protection arguments this language generated, and the patterns of enforcement for the past century, it is no surprise that lawyers almost instinctively regard statutory rape as a crime committed by men against girls.

Criminologists and historians have consistently documented that, since at least the 1700s, violent and property crimes are an overwhelmingly male phenomenon. (13) While scholars have debated the source of this gender disparity in crimes whose formal definitions are gender neutral, (14) the issue remained hidden in the statutory rape caseload until the end of the twentieth century. Why? Because for much of its history, statutory rape, commonly defined as sex with a person under the legal age of consent, was statutorily constructed in gendered terms. (15)

The epitome of the gendered statutory rape law is the California statute that was challenged and upheld by the United States Supreme Court in Michael M. v. Superior Court of Sonoma County (16) in 1981:

Unlawful sexual intercourse is an act of sexual intercourse accomplished with a female who is not the wife of the perpetrator where the female is under the age of 18 years. (17) As the California statute demonstrates, statutory rape was traditionally understood as a crime that could happen only to females; indeed, the "female" victim specification appears twice in just a few lines. The law further gendered the putative actors by requiring that the victim not be the wife (an exclusively female status) of the perpetrator, who, by definition, must be male. (18) Given these statutory elements, any gender disparity in the defendant population stemmed directly from the crime's structure; law enforcement or reporting bias was not an issue.

In the 1950s, the state legislatures' approach to defining statutory rape came under attack in the legal academy. (19) Early critics identified the sexist notions embedded in the rationales that supported the enactment of statutory rape laws. (20) Later, as constitutional law scholarship expanded to include Fourteenth Amendment substantive due process and equal protection analysis, scholars began to frame the earlier ideological arguments as constitutional violations. In so doing, they argued that gendered statutory rape laws violated a minor female's right to privacy and unfairly discriminated on the basis of gender. The privacy argument was largely abandoned in later years, at least in part because the equal protection argument took center stage when it was tested before the Court in Michael M. From the beginning, the male perpetrator-female victim dyad inherent in the statutes' terms formed the core of these debates.

Even after states excised gendered language from their statutes and thereby eliminated the law's formal distinction between the sexes, legal scholars continued to write about statutory rape as a male-on-female phenomenon. In their view, the absence of the formal legal requirement did little to change the dynamic of the problematic relationship, and these scholars continued to assume that the "statutory rape problem" meant men taking unfair advantage of girls. This view was amply supported by the history of statutory rape enforcement, which, even in the present, gender-neutral era, has largely focused on male defendants.

The following pages provide a brief history of the legal issues presented by statutory rape law in the United States, both before and after the parties' respective sexes defined the crime itself. The evidence contained herein shows a persistent tendency by legal institutions both to construct and to interpret statutory rape in highly gendered ways.

1. Statutory Rape's Gendered Origins

   Legal academics have recounted the history of statutory rape law's creation in decidedly gendered tones. The emphasis on sex-differential treatment animates the scholarly discussion of both the law's origins and the constitutional violations it triggers. In foregrounding these arguments I do not mean to imply that the gendered cast is faulty or contrived--my own research into the history of statutory rape suggests that it is highly accurate (21)_but rather to highlight that the male perpetrator/female...