Walking the tightrope of statutory rape law: using international legal standards to serve the best interests of juvenile offenders and victims.

• Author: Pearlstein, Lisa
• Position: NOTES - Interview

INTRODUCTION I. HISTORY OF STATUTORY RAPE LAW IN THE UNITED STATES II. INTERNATIONAL LAW AND CHILDREN'S RIGHTS: THE CONVENTION ON THE RIGHTS OF THE CHILD A. Juvenile Defendants B. Victims III. STATES SHOULD USE INTERNATIONAL LEGAL STANDARDS AS GUIDANCE WHEN REVISING STATUTORY RAPE LAWS A. The United States Has Embraced International Law in the Past B. The Current U.S. Statutory Law Scheme Does Not Meet the Standards Set by International Law 1. Juvenile Defendants 2. Victims C. Recommendations CONCLUSION INTRODUCTION

In 1991, Amy Fisher, a sixteen-year-old high-school student, and Joey Buttafuoco, a thirty-six-year-old auto-body repairman, began an illicit affair. (1) The next year, Fisher, purportedly encouraged by Buttafuoco, shot Buttafuoco's wife in the head. (2) Fisher was sentenced to five-to-fifteen years for the shooting and Buttafuoco was sentenced to six months, the statutory maximum, for the statutory rape of Fisher. (3)

Compare Joey Buttafuoco to Genarlow Wilson. When Wilson was seventeen years old, he had consensual oral sex with a fifteen-year-old girl. (4) Before his conviction, Wilson was an honor student, football player, and his school's homecoming king. (5) He was convicted of aggravated child molestation and sentenced to a mandatory ten years in prison. (6) After serving over two years of his ten-year sentence, the Georgia Supreme Court ordered that he be released on the grounds that his sentence amounted to cruel and unusual punishment. (7) In 2006, the Georgia legislature amended the law to make conduct like Wilson's a misdemeanor. (8)

How does Joey Buttafuoco receive a significantly lighter sentence than Genarlow Wilson? In sentencing Buttafuoco, why did the judge not take into account his clearly negative impact on Fisher?

These two cases illustrate many issues that plague U.S. statutory rape law today. State legislatures promulgated these well-intentioned laws with the goal of protecting adolescents from adult sexual predators, but the laws have been expanded beyond their initial scope. Statutory rape laws are not only used to prosecute adults, but they are applied to adolescents who engage in consensual sexual acts with their peers. At the same time, the laws require prosecutors to focus on the ages of the individuals involved but do not encourage them to also consider the factors surrounding the illicit relationship.

States should reevaluate and revise their current statutory rape laws, and in so doing, they should be guided by international law. International law makes clear that countries should focus on rehabilitating juvenile defendants and serving the best interests of those victimized by statutory rape. Presently, state statutory rape laws simply do not conform to international legal standards.

First, criminalizing consensual sex between peers does not comport with international law. If the sexual act is truly consensual and is not coerced, the sexual acts essentially constitute victimless crimes. (9) Moreover, international law recognizes that juveniles are still developing mentally, emotionally, and physically and should not be as culpable as an adult charged with a similar crime. Because of these inherent differences between adolescents and adults, international law encourages nation-states to have a minimum age at which they can charge a juvenile for a crime. Many states in the U.S. do not have a minimum age for prosecution, and if adolescents are prosecuted and incarcerated for statutory rape, they may be subject to mandatory reporting laws and labeled sex offenders. These repercussions are extreme when compared to the nature of the act with which the juvenile is charged.

Second, international law prefers rehabilitation to incarceration and directs courts to look out for the best interests of the juvenile defendant. States should only incarcerate juveniles as a last resort, and even when incarceration is necessary, it should be complimented by rehabilitative treatment. In practice, states tend to arrest juveniles who have sexual relations with minors significantly younger than themselves and do not require rehabilitation that is sculpted to the needs of the juvenile offender.

Third, when an adolescent has sexual relations with an adult, international law requires states to serve the best interests of the adolescent and to take the his or her preferences into account. The victim may become pregnant or rely financially or emotionally on the defendant, or the victim may fear turning to an adult for help because of mandatory reporting laws. On the other hand, where the offender is emotionally or physically abusive, or is in a position of power over the victim, states often fail to administer sentences proportionate to the harm. Prosecutors and judges should take these factors into account when determining whether to prosecute individuals and in making sentencing decisions.

In sum, the current U.S. system falls to adequately meet the needs of both juvenile defendants and victims of. statutory rape. States should not criminalize sexual acts between two peers. Where the defendant is a juvenile and has sexual relations with a significantly younger minor, the state should emphasize rehabilitation.

In those cases where the victim engages in sexual relations with an adult, the state should make an individualized determination in order to come to a resolution that is in the best interest of the victim.

Part I of this paper provides an overview of the history of statutory rape law in the United States. Part II provides an overview of children's rights in international law, focusing on juvenile defendants and victims. Part III explains how many states fail to adequately protect juvenile defendants and serve the needs of victims. In revising their statutes, states ought to recognize that the Supreme Court has looked to international law and they should be similarly guided when revising their statutory rape laws. Part III concludes with recommendations on how states can use international legal standards as guidance in revising their statutory rape laws.

1. HISTORY OF STATUTORY RAPE LAW IN THE UNITED STATES

   Statutory rape laws were originally codified in thirteenth century England and adopted by the United States common law system. (10) The laws defined the age of consent as ten years old, (11) but in the late nineteenth century, states raised the age of consent in order to protect young girls from older male aggression. (12) In the 1970s, feminists called for reform of statutory rape laws because the laws were not gender-neutral and were aimed at protecting young girls from older male aggression, and not young boys from older female aggression. (13) Although the Supreme Court held that gender-specific statutory rape laws do not unconstitutionally discriminate on the basis of gender, (14) all states have revised their laws to be gender-neutral. (15)

   Proponents of statutory rape laws initially argued that these laws were necessary to protect young people from coerced sexual activity. (16) In a relationship with a large age disparity, state legislatures assumed that a young person could not make a sexual choice within that relationship. (17) Other proponents believed that young people are too immature to make such a decision and unable to realize the long-term consequences of their actions. (18) In addition, proponents of these laws have tied sexuality to morality, believing that it is immoral for juveniles to engage in any sexual activity. (19)

   Until the 1990s, statutory rape laws were largely unenforced and were deemed to be paternalistic laws. (20) The statutory rape debate was rekindled due to studies that concluded that adult men fathered most of the babies born to teenage girls. (21) First, the Alan Guttmacher Institute found that half of the fathers of babies born to mothers between the ages of fifteen and seventeen were twenty or older. (22) A second study, conducted by the University of California, discovered that two-thirds of babies born to school-aged mothers were fathered by men of post-high school age. (23) Through these studies, proponents of statutory rape laws tied statutory rape to an increase in teenage pregnancy and pushed legislatures to take steps to punish men who violate these laws. (24) Advocates of statutory rape laws believed that if states actively enforced them, predatory men would not prey on adolescent girls and teenage pregnancy would drop overall. (25) Although statutory rape is generally criminalized by the states, Congress has enacted legislation addressing the issue. First, the federal statutory rape statute provides that a person in the "special maritime and territorial jurisdiction of the United States" who engages in sex with a minor (1) between the ages of twelve and sixteen, and (2) at least four years younger than the offender may be fined and/or imprisoned for up to fifteen years. (26) In addition to the federal law, Congress enacted the 1996 Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), commonly known as the federal welfare law, which contains provisions directed at state statutory rape laws. (27) Congress believed there was a link between predatory older men and teenage pregnancy, and in order to decrease teenage pregnancy, Congress advised states and local jurisdictions to "aggressively enforce statutory rape laws." (28) By incorporating these sections into PRWORA, Congress intended to lower teenage pregnancy rates by lowering overall national welfare rates. (29)

   Even after the passage of the sexual abuse statute and PRWORA, current state laws differ widely on definitions of statutory rape. State statutory rape laws may be categorized into two groups. The first group consists of those states that have a single age of consent, meaning that a minor younger than that age cannot legally consent to having sex. (30) Within each state, the specified age of consent ranges from sixteen to eighteen years old. (31)...