Statutory rape law and enforcement in the wake of welfare reform.

• Author: Oliveri, Rigel

Marguerite is just a few weeks shy of her sixteenth birthday. Her son is two-and-one-half years old. Her mother, already in poverty with an unstable living situation, kicked Marguerite out of the house when she became pregnant. Now Marguerite lives in the home of a family friend, relying on welfare benefits and Food Stamps to support herself. She attends school sporadically, and will probably stop altogether.

The baby's father, Tomas, is in his early twenties. Tomas used to be Marguerite's boyfriend. When Marguerite became pregnant at thirteen, Tomas indicated his willingness to help care for the child. Despite the fact that their relationship was occasionally violent, Marguerite hoped the two would get married and start a family. But as her due date came closer Tomas became distant, and they eventually stopped seeing one another. Now he lives nearby with a new, older girlfriend and has nothing to do with Marguerite or the child. She obtained a court-ordered paternity test, which indicates that he is indeed the father. Still, Tomas has never paid child support, and refuses to acknowledge paternity.

Marguerite is hurt, furious, broke, and alone in the task of raising her son. Her benefits may be cut off soon because of a new provision of the welfare law that requires teen parents to live with a relative to be eligible for assistance. She needs help retaining her benefits and obtaining a child support order against Tomas. Unfortunately, even if an order is issued, it is unlikely that he will ever pay. He is unemployed, undocumented, and a gang member. Marguerite desperately wants Tomas brought to court. She asks if he can be arrested for getting her pregnant when she was so young and then abandoning her. "All I really wish," she says, "is for him to come in and for the judge to tell him that he was wrong for what he did to me--that he should be helping to raise his son and that he shouldn't just ignore me like nothing ever happened."

Allison has just turned sixteen. She had her first baby when she was thirteen, and at fifteen she gave birth to twins. Allison's father was unable to take care of her after she became pregnant the first time. He was already receiving welfare benefits and raising her younger siblings. Her mother has a history of drug abuse, and Allison does not know her whereabouts. Allison lives in a tiny one-bedroom apartment with the children and their father, twenty-two-year-old Marcus. He is an undocumented immigrant who supports the family through odd jobs. Every dollar he earns goes to pay the rent. Allison also receives welfare benefits and Food Stamps for herself and the children.

Allison stays home and cares for the children while Marcus works. He helps her with the housework, and his sisters occasionally stop by to keep her company or watch the children. The couple plan to marry as soon as they get her father's legal consent.

Allison needs legal help to facilitate the parental consent to marriage and because she is in danger of having her benefits terminated. A new provision in the welfare law requires that she both attend school and live with a relative, unless she is married. She has not been to school in three years--since the eighth grade--and is terrified at the prospect of returning. Social services has been closely involved with her case. While there has been talk of the large age difference between the two parents, all those involved are reluctant to report Marcus to the authorities because he plays such an important role in the family. As her three children wail in concert, Allison asks for help: "I want to stay here and not go back to school. And I want to marry Marcus. Please don't let them report us. We do OK here. We are trying."(1)

INTRODUCTION

The stories of Marguerite and Allison share many common elements: both were impregnated at a young age by adult men; neither lives with a parent; both are indigent and receive welfare benefits; both are in danger of losing these benefits due to changes in welfare eligibility; and neither is likely to graduate from high school. Most significant for the purposes of this note is the fact that both girls have been the victims of felony statutory rape as it is defined by their state's penal code. If prosecuted, both Tomas and Marcus could face lengthy prison sentences, thousands of dollars in civil penalties, and deportation. There is, however, one crucial difference: For Marguerite, a statutory rape prosecution of Tomas would be a vindication of her suffering, a punishment imposed upon him for the pain and hardship he has caused her. For Allison, a statutory rape prosecution of Marcus would be a nightmare, depriving her of a crucial source of income and support. This difference, and what to do about it, defines the contours of some of the most difficult policy debates in America today.

This note examines the dilemma of statutory rape in light of the recent nationwide trend toward stricter statutory rape laws and stepped-up enforcement activity. Part I contains a brief historical overview of statutory rape laws, with a focus on the changing normative goals underlying the laws in different historical contexts. Part II locates the origins of the current legislative and enforcement trends in the recent movement to reform the country's welfare system. It discusses the impact of the federal legislation on teen parents, and examines sociological data on the correlation between teen pregnancy and statutory rape. Part III surveys various states' legislative and enforcement efforts to "get tough" on statutory rape.

Part IV examines some of the analytical difficulties presented by stricter statutory rape laws and their aggressive enforcement. Specifically, this Part looks at: the issues of teens' capacity for consent and the role that they should play in the prosecution decision; the privacy and substantive due process rights of both teens and offenders; and the practical needs of parenting teens. These issues lead to a modest proposal for changing the way in which statutory rape cases are prosecuted.

Part V explores the inherent problems and paradoxes in the current legislative and enforcement trends. In particular, it examines the conflicting goals of aggressively punitive policies, the disconnect between the law in theory and the law as it is applied, and the fact that stricter laws and policies are unlikely to have a significant effect. These findings lead to a bolder suggestion: that we may instead want to reconsider whether to have statutory rape laws at all.

1. STATUTORY RAPE LAW, PAST AND PRESENT

   Throughout history, societies have used statutory rape laws to accomplish a variety of normative goals. Examining the details and purposes of a particular society's laws against statutory rape can reveal a great deal about that society's conception of gender roles, morality, and sexuality. Who is targeted, who is protected, and why can reveal the scope and details of a community's priorities and assumptions as well as a history book.

   Statutory rape laws have existed for thousands of years in one form or another, with some authors arguing that they appear in the ancient Code of Hammurabi.(2) Statutory rape laws were incorporated into English law in the thirteenth century, and later absorbed into the American legal system from the English common law.(3) Several factors indicate that the primary purpose behind these early laws was to protect the chastity of vulnerable, virtuous young women, treating them as "special property in need of special protection."(4) First, early statutory rape laws were gender specific, criminalizing adult sexual relations with girls, but not boys. In addition, defendants could raise a promiscuity defense, arguing that no crime occurred if the victim was herself sexually experienced--thus possessing no chastity to steal. This has led some scholars to conclude that statutory rape law served more to protect girls' chastity than to actually punish men who coerced sex from them.(5)

   The late nineteenth century saw a wave of statutory rape law reform. Concerned about the spread of disease and protecting young girls from abuse, an odd coalition of Victorian feminists, Socialists, religious groups, and Progressives mobilized to strengthen the laws and raise the age of consent.(6) They succeeded, and these achievements were a victory for the moral reform movement, which had "social purity" and uplift of the lower classes as its primary concerns.(7) Such movements in the Victorian Era were simultaneously self-righteous and protective, motivated as much by the fear of licentiousness among the poor as concern for their well-being.(8)

   Little changed in statutory rape law until the 1970s. In the wake of the sexual revolution and at the beginning of the modern feminist movement, statutory rape laws across the country were both liberalized and modernized. The atmosphere of sexual liberation and women's empowerment may have caused some feminists, if anything, to want to expand girls' sexual freedom and options and to abandon outdated expectations of chastity for teen girls.(9) Many states began passing gender-neutral statutory rape laws. Several states decriminalized sex among teenagers, and set up a framework in which sex would only be prohibited if the victim were under the age of consent and there was a significant age gap between the parties. Other states abandoned the "promiscuity" defense altogether, although several retained it.(10) It was at this point that a new rationale emerged for statutory rape laws, particularly the ones that remained gender specific. As the Supreme Court made clear in perhaps the best-known of all statutory rape cases, Michael M. v. Sonoma Country Superior Court, the state's interest in preventing out-of-wedlock teen pregnancy was now considered an important purpose of statutory rape law.(11) The Court specifically found the state had an interest in reducing the negative "social, medical, and...