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Age Gap Distinctions and Statutory Rape Laws

A Guest Answers:

Dear Reader,

We've received more questions about statutory rape concerning age-gap distinctions, so I'll try to answer what I didn't cover in the previous article on statutory rape.

Now, I'm not a lawyer; I'm a web wonk. Please do NOT use this page as legal advice.

~Webmistress Cynth~

PS: If you have a question on the strictly legal aspects of underage sex, ask the folks at www.Sexlaws.org

Dear Panel,

If a minor has sex with a minor – for example: a 17 year guy having sex with a 17 year old girl – is that statutory rape since they are both of "legal" age to have sex?

– Ashley
female, age 17, USA

Cynth Answers:

Dear Ashley,

If both people having consensual sex are the same age, it's not statutory rape.

But it may be confusing to some people about the term "minor" and the concept of when it is "legal" to have sex. "Age of consent" and "age of majority" are sometimes legally distinct, depending on where you live:

  • Age of consent means the age at which you can legally consent to having sex.
  • Age of majority is the age at which you can enter into legal agreements and transactions.

Those below the age of majority are usually called "minors". Those below the age of consent are usually called "under the age of consent."

 

Dear Panel,

I am 16 and I am dating an 18 year old. We both live in California. If we had sex would it be unlawful?

I read that as long as there is no more than 3 years' difference, it is legal. Is this true?

– Confused
female, age 16, USA

Cynth Answers:

Dear Confused,

It is illegal to have sex with him, because the age of consent in California is 18.

If someone were to press charges against him for statutory rape, the two years' age difference would make him guilty of a misdemeanor, which carries lesser penalties than If he were three years older, when it would be a felony.

 

Dear Panel,

I am currently 17 and my girlfriend is 16. We have our birthdays on the same day which is March 25. I will be turning 18 and she will turn 17.

Can anyone besides her call Statutory Rape on me including her parents? I have read the penal codes and they are confusing so I thought I would ask you about it.

Could you please tell me everything and maybe show me laws to give me a little more confidence?

Thank you very much.

– Jeff
male, age 17, California

Cynth Answers:

Dear Jeff,

It seems arbitrary that sex with your girlfriend becomes illegal when you reach your eighteenth birthday, but it's true. Anyone can press charges against you for statutory rape in California, because she will still be younger than 18. If you are convicted, however, California law will count it as a misdemeanor, and not a felony, because you are less than three years older than she is.

I can't tell you "everything" because I don't know everything, but I researched the relevant California penal codes at AgeofConsent.com. A lawyer or your local District Attorney could answer any more questions you have.

Although your case makes statutory rape laws seem arbitrary, a story from one of our readers illustrates why the law might protect someone underage from being exploited.

 


Dear Panel,

My younger brother got involved in a serious relationship when he was 17. The girl was 15. The relationship progressed and he (obviously) turned 18 and she 16. They had consentual sex throughout the relationship and got pregnant.

They moved from Texas to Florida and tried living together but broke up. Now she's moving back to Texas. Now he's going to be 20 and she, 18. Can she still sue for statuory rape?

– Scared Sister
female, age 21, Texas, USA

Cynth Answers:

She or anyone else can press charges against him for statutory rape because the age of consent in Texas is 17. But Texas has an "affirmative defense to prosecution" clause, tried in 1999, which may consider the act "not a criminal offense" because he is less than three years older than she is.

She can sue him, however, for damages caused by physical, mental and psycholgical distress from having to endure a sexual relationship, a pregnancy, a major move, and maybe motherhood, adoption, or abortion (you didn't specify what they did about her pregnancy) while being so young.

 

Dear Panel,

I am a 21 year old female. When I was 18 years old I was dating a 14 year old and my mother told me that even if we were just dating it was considered statutory rape.

His mother knew that we were dating and didn't care. We are both Christians and we do not believe in premarital sex. We just wanted a relationship that was strictly just spending time together and sharing our days. 

Now I am 21 years old and I like a 17 year old Christian. I want to know if just dating him is illegal or if my mom was just trying to scare me because she didn't like the other guy.

Thank you.

– Confused in Kansas
feamle, age 21, USA

Cynth Answers:

Dear Confused in Kansas,

Dating (without sex) is legal regardless of your age. Dating is not statutory rape.

Your mother might have been scaring you because she is alarmed that you show a pattern of dating children when you're supposed to be an adult.

 

Dear Panel,

I live in Maine, and I'm a little confused about the statutory rape laws.

Is it legal for a 16 year old to be with a 23 year old?

– Not Sure
female, age 16, USA

Cynth Answers:

Dear Not Sure,

Anyone can "be" with anyone else, regardless of age; it's a Constitutional right (known as "the right of the people peaceably to assemble") given to Americans in the First Amendment.

And if you're asking about sex, the age of consent in Maine is 16, and therefore it is legal (but not advisable, in my opinion) for a 16 year old to have sex with a 23 year old.

In many other American states, it would be illegal.

 

Dear Panel,

Me and this guy have been talking and we really like each other, but I am 17 and he is 25.

Should that matter?

What do I do?

– Confused
female, age 17

Cynth Answers:

Dear Confused,

If you are a teenager, age will always matter! During this time in your life, milestones like

  • driving permits,
  • driver's licenses,
  • work permits,
  • watching R-rated movies,
  • voting,
  • enlisting in the military,
  • drinking alcohol,
  • gambling, and
  • buying lottery tickets, tobacco products, adult magazines, or weapons

depend on your age. You will change and mature as you pass those milestones and deal with the temptations those milestones allow you.

A 25-year old has already passed those milestones, and he is probably exposed to many situations that you are not legally ready to experience.

And if you're below the age of consent, sex with someone your age could land him in to jail. If he is known to be alone with you while you are dating, he may be vulnerable to charges and allegations of statutory rape.

You should find out the statutory rape laws for your area, and proceed with caution. Don't let him manipulate you!

 

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