Turning girls into women: re-evaluating modern statutory rape law.

• Author: Oberman, Michelle
• Position: Symposium: Gender Issues and the Criminal Law

Introduction

During the spring of 1993, a group of teenage boys who called themselves the Spur Posse combined adolescent competitiveness and sexual bravado to develop a "game" in which members of the group sought to have sexual relations with as many females as possible. Members scored one point for each sexual conquest -- i.e., each time they achieved orgasm with a girl.(2)

The gang first made headlines when eight of its members were arrested on charges ranging from lewd conduct with a minor under the age of fourteen to rape by intimidation.(3) From a legal perspective, the astonishing thing about the Spur Posse case was not the fact that the gang members wanted to have sex with more than one partner,(4) nor even that they actually had so many partners.(5) Rather, it was that after weeks of investigation, the Los Angeles County District Attorney's Office dropped all of the charges except one on the grounds that its "policy [is] not to file criminal charges where there is consensual sex between teenagers."(6)

While the District Attorney's office classified the sex these boys had as consensual, others went even further, endorsing it as healthy. Some parents of Spur Posse members bragged about their sons' escapades. One mother said, "What can you do? It's a testosterone thing. "(7) One father referred to his son as a "virile specimen." (8) Another father was quoted as saying, "Nothing my boy did was anything that any red-blooded American boy wouldn't do. He has to defend himself from these girls. They are promiscuous."(9)

Although the criminal justice system labeled the sex "consensual," there was no evidence that the girls considered their experiences pleasant or recreational. Quite the contrary image seems to emerge from the media accounts, which describe rather violent encounters, rife with ambivalence and coercion, and seemingly void of mutual affection.(10) Yet, neither the District Attorney's statements nor the media provide any real insight into the girls' views of their experiences.(11) Rather than yielding a sense of what "consensual" sex meant to the girls involved, the Spur Posse stories contain only defensive justifications for the sexual episodes, such as the girls had consented,(12) or the girls were sluts and the boys could not be blamed, since "boys will be boys."(13)

The sexual activities described in the media accounts were not glorified games of "spin the bottle," nor even scenes of furtive intercourse with a boyfriend in the back seat of a car. Rather, they were stories of a fifteen-year-old boy who climbed through a bedroom window and demanded sex from an eleven-year-old girl;(14) of a group of boys lining up to have sex with one girl, whose clothes had been taken away from her by gang members demanding that she have sex with them, since she had had sex with another member;(15) and of boys who described their typical sexual encounter as "just throw a couple of pumps, and you're done,"(16) and who distinguished it from the kind of sex one had with a girl one really liked: "Whores you just nut and you leave. Good girls that are fine and respectable, you give them the allnight thing, you please them and romance them ... and eat them out and shit."(17)

Although it is conceivable that a teenage girl might "consent" to sexual intercourse in some circumstances, the seemingly facile conclusion that so long as she consents, any act of intercourse with her is freely chosen and, therefore, legally permissible is troubling. While girls may dress and act like sexy women, they are still girls.(18) And the fact that some girls might consent to sex which is inherently exploitive, such as that documented in the Spur Posse accounts, is not evidence of their competence to consent, nor of their "womanliness," but rather, of their immaturity and vulnerability to exploitation.(19)

A multiplicity of factors induce girl to consent to sex:(20) to feel liked or loved,(21) to feel closer to someone,(22) to become popular.(23) Desire often is not the motivating force in girls' sexual exploration.(24) Moreover, girls sexual partners are not necessarily restricted to teenage boys. Indeed, one recent study demonstrates that a considerable percentage of teenage girls' male partners may in fact be over the age of twenty.(25) In the not too distant past, these factors contributed to a general assumption that, in sexual matters, just as in other adult matters, girls could not take care of themselves-that because of their immaturity and some adults' skills in playing to girls' insecurities, adolescent girls needed society to help take care of them.

Nonetheless, over the past two decades, society has revised its thinking about girls' sexuality. The law reflects this revision through the current formulation and application of statutory rape laws. Since the early 1970s, through a variety of de jure and de facto reforms, society has displaced 700 years of law premised upon girls' inability to give legally valid consent to sex.(26) This change has been supported by a broad coalition of liberals, public health advocates, medical experts, feminists, judges, and legislators. For the most part, the law now gives its tacit blessing to "consensual" acts of sexual intercourse with minors.

"Consensual sex" is a legal term of art. When asked to define and identify consensual heterosexual sex, differentiating it from coerced sex, modem scholars divide themselves into various camps. Some believe that there can be no truly consensual sex in a society premised upon the sexual, social, and

economic subordination of women.(27) Others acknowledge that a woman's sexuality is constructed, but argue that even within the oppressive construct, women experience sexual desire and pleasure, which the law must work to identify.(28) Still others advocate adoption of a "rational criminal law of sex," which would abandon. the conjunction of force and nonconsent in the law.(29)

At its core, this debate is about the validity of an individual's consent to sex, and the conditions under which that consent will insulate someone who engages in sex with that individual from later criminal liability for that act. Considerable legal scholarship discuss the criminal justice system's struggle to differentiate consensual sex from nonconsensual sex (i.e. rape). Primarily, this work addresses the system's inability to identify nonconsensual sex in the absence of evidence of force.(30)

Far less scholarly attention has focused on the nature of a valid consent to sex. As an academic matter, this might seem a rather easy question. Those who are not legally competent cannot consent to sex, and thus, evidence that they consented will not provide a defense against a rape charge. However, as a practical matter, those who are not legally competent often are sexually active. The most challenging members of this category are teenage girls, over half of whom are sexually active.(31) Almost everyone would agree that age is relevant to an assessment of an individual's ability to consent to sex. A five-year-old's consent should not constitute a defense to a charge of rape against her.(32) However, when the alleged victim of a sexual assault is a consenting adolescent, the consensus falters, and society is forced to determine when a girl is old enough to say "yes" to sex.

As a result of moving to a consent-based standard in the enforcement of statutory rape laws, modem criminal law has turned girls from "jail bait" into "fair game" without considering the nature and meaning of consensual sexual activity for girls, or whether any of the factors that might induce consent should be legally impermissible. The presumption underlying modern law governing adolescent girls' sexuality is that girl are mature enough to make autonomous decisions regarding sexuality. However, the growing body of research on female adolescence calls into question the presumption that girl are fully capable of protecting themselves. That is, researchers consistently have found that for girls, adolescence is a time of acute crisis, in which self-esteem, body image, academic confidence, and the willingness to speak out decline precipitously.(33) Such evidence reveals a significant likelihood that girl are vulnerable in sexual encounters -- vulnerable in precisely the manner which the common law of statutory rape anticipated and sought to remedy.

This Article challenges the assumptions underlying modern statutory rape law by contrasting them both with other legal paradigms governing adolescents, and also with the current psycho-social literature regarding adolescence. Section I analyzes modem statutory rape law, and documents and evaluates the decriminalization of sexual activity involving minor girls. Section II explores the treatment of minors in other areas of the law, evaluating the extent to which the law has increased minors' rights and obligations in other civil law contexts. This analysis reveals surprising inconsistencies in the law's treatment of minors. While the law continues to intervene to protect minors in decision-making involving contracts and medical treatment, in most cases the law holds minor girls to an adult standard when evaluating their decisions regarding sexual activity. Section III describes current research in adolescent development, and specifically addresses limitations on girls' capacity for autonomy and consent in sexual interactions. The final section builds on this evidentiary basis, arguing that in light of girls' vulnerability to coercion, law makers must revive and reconfigure the crime of statutory rape.

1. Legal Regulation of Teen Sexuality

   The Los Angeles District Attorney's office issued the following statement in an attempt to justify its decision not to file charges in the Spur Posse Case: "After completing an extensive investigation and analysis of the evidence, our conclusion is that there is no credible evidence of forcible rape involving any of these boys...