Slight hijack: An age of consent website tells that the minimum age for marriage without parental consent in Mississippi is 15 for girls and 17 for boys. Also, the age of sexual consent varies from state to state. In some states it is 18, but in most states it’s now 16. A few have it set even younger, IIRC.
Hawaii used to have an age of consent of 14, but they changed it to the standard 16 a couple years ago, apparently out of embarresment that they had the lowest AOC in the nation.
" out of embarresment that they had the lowest AOC in the nation."
NH has a AOC, with permission, of 13.
In California you can have sex with someone under 18 with your folks permission because you can even get married under 18 with their permission as my niece did.
OK, my first answer was just off the top of my head. I’ve done a little (decidedly not comprehensive) research. (Please remember that IANAL, so don’t use my advice to plan your sexual activities, mmmkay?)
Whether a man can be convicted of statutory rape of a married female, or a female who had been married before the time of the alleged sexual act, depends on the terms of the statute that defines the crime. In states where the statute defines the crime as an act of sexual intercourse with “any female,” without indicating whether the absence of marriage is or is not an essential element of the offense, the courts have uniformly held that the fact that the female was married, or had been married, does not make her capable of legally consenting to the sexual act, and thus her marriage is no defense. These states include California, see, e.g., People v. Caldwell, 255 Cal App 2d 229 (1967); New York, see, e.g., People v. Barrows, 677 N.Y.S.2d 672 (NY Sup. Ct. 1998); Tennessee, see, e.g., Elkins v. State, 72 S.W.2d 550 (Tenn. 1934); Texas, see, e.g., Beezley v. State, 1 S.W.2d 903 (Tex. Ct. Crim. App. 1927); and Utah, see, e.g., State v. Huntsman, 204 P.2d 448 (1949).
On the other hand, in a few states, the crime of statutory rape is expressly defined as an act of sexual intercourse with an unmarried female under a given age, and thus in those states a man cannot be convicted of statutory rape of a married woman. In those states, however, the law is not clear whether a man can be convicted of statutory rape of a woman who had been married prior to, but was not married at the time of, the alleged crime. The following cases involve states with these statutes that don’t involve this situation, but imply that a male cannot be convicted of statutory rape of a female under the age of consent if the state fails to prove that the female was unmarried at the time of the sexual act: Colorado, see, e.g., Brown v. People, 210 P.2d 837 (1949); Florida, see, e.g., Lowe v. State, 19 So.2d 106 (1944); Louisiana, see, e.g., State v. La Borde, 99 So.2d 11 (1958); Mississippi, see, e.g., Summerville v. State, 41 So.2d 377 (1949); Missouri, see, e.g., State v. Langston, 382 S.W.2d 612 (1964); South Carolina, see, e.g., State v. Whitener, 89 S.E.2d 701 (1955).
I did not actually go and look at the various state statutes to see what the current state of the law is in the 50 states; rather, I just searched for relevant cases on Lexis, which generated the above information. But I did take a look at California’s statutory rape law (Cal. Penal Code sect. 261.5), which is much more draconian than you might expect. Any person who has sex with someone under the age of 18 and who is not married to that person – regardless of the age of the perpetrator – has committed a crime. If they’re within three years of age, it’s a misdemeanor (this includes where the perpetrator is, say, 14 years old, and the victim is 17 years old). If they’re greater than three years of age apart, then it can be a felony punished by imprisonment. Adults who have sex with minors (under age of 18) to whom they are unmarried are subject to additional fines.
I’m not sure how many other states have similar laws regulating the sexual activity of teenagers. A California state court did uphold the constitutionality of punishing a minor male for having sex with a minor female whose age is within three years of his own. *See In re T.A.J., 62 Cal. App. 4th 1350 (Cal. Ct. App. 1998). So those of you under 18, you might want to consider keeping it in your pants…
Well, when I worked as an psych tech in an adolscent psych hospital, we had a 15 year old (I think…may have been 16), that one day got really bored and trashed the unit.
We took her down, and put her in seclusion where she told me that the reason for her behavior was that she had been raped by her ex husband right before she came back in. Now, I was pretty sure she was lying…in fact, she had this look on her face that said “I know you know Im lying, but I also know that now you have to jump through a bunch of legal hoops”(she had been in treatment a bunch of times)…she was litteraly trying to keep from laughing as she told me. (after you deal with a few hundred of these kids, you start getting to know when their playing games)
So, I called CPS, as I was required to do by law. They didnt know what the hell to do. They said that being that she was married, she was no longer considered a child so why are you calling us? I said, well, thats what I am required to do by law. They said oh, yeah, I guess you are. Finally, they said to call the city she was from, and tell the police. And that CPS would file a report, but would not investigate any further.
So I call the police. I tell them the situation. It takes them about 30 minutes just to figure out if goes to juvinile or not. Finally, I get on the phone with a decetive from Juvinile(out of default…he said she wasnt a juvinile). I tell him her name, and he starts laughing. He says he’s arrested both her and her ex husband more time than he can count. He says, “She’s scamming you”, and I say “probably, but I have to report it” he says “Ok, tell her detective xxxx said to call him when she gets out and he’ll file a report”. She wasnt too thrilled to hear his name.
Anyway, the consensus seemed to be that since she was emancipated, she was an adult legally. Course this is Texas, not the US or anything.
Here’s Texas’s statutory rape law (Tex. Penal Code sect. 21.11):
(a) A person commits an offense if, with a child younger than 17 years and not the person’s spouse, whether the child is of the same or opposite sex, the person:
(1) engages in sexual contact with the child or causes the child to engage in sexual contact; or
(2) with intent to arouse or gratify the sexual desire of any person:
(A) exposes the person’s anus or any part of the person’s genitals, knowing the child is present; or
(B) causes the child to expose the child’s anus or any part of the child’s genitals.
(b) It is an affirmative defense to prosecution under this section that the actor:
(1) was not more than three years older than the victim and of the opposite sex;
(2) did not use duress, force, or a threat against the victim at the time of the offense; and
(3) at the time of the offense:
(A) was not required under Chapter 62, Code of Criminal Procedure, to register for life as a sex offender; or
(B) was not a person who under Chapter 62 had a reportable conviction or adjudication for an offense under this section.
© In this section, “sexual contact” means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person:
(1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or
(2) any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person.
(d) An offense under Subsection (a)(1) is a felony of the second degree and an offense under Subsection (a)(2) is a felony of the third degree.
[Note: a second degree felony is punishable by between 2 and 20 years imprisonment and up to a $10,000 fine (Tex. Penal Code sect. 12.33), and a third degree felony is punishable by between 2 and 10 years imprisonment and up to a $10,000 fine (Tex. Penal Code sect. 12.34).]
Ack – hit submit too soon. Meant to add that this corresponds with my earlier conclusion based on the case law that, in Texas, it’s statutory rape even if the minor is married so long as the perpetrator is not the spouse.
These laws give exclusive sexual rights to each of the couple, if both are minors.
I just thought that was kinda interesting.
So while it may be TECHNICALLY against the law(in some states) I suspect a conviction might be hard to get…if for example I was on a jury for a case like this I think I would certainly take it into account if the female(it would most likely be the female) had been or still was married at the time of the alleged offense
Of course the prosecutor might be able to keep the jurrors from ever knowing her marital status on the grounds it is her past sexual history and not supposedly revelent(sp?)…IMO though this is one time her history would be
She can still consent with her husband, right? Because it would be pretty silly to get married if you can’t have sex.
All I can say is that it figures this is California we’re talking about, because this is completely insane. So, even though they’re both minors, HE is responsible, and she is not? How on Earth is that considered fair and just, not to mention providing him with “equal protection under law”?
Oh, and Bricker, you are the one who made tohe original assertion. Therefore, it is your job to prove yourself right, not mine to prove you wrong. Mr. Hand did some of the work for me though. His explanation is quite thorough.
" A California state court did uphold the constitutionality of punishing aminor male for having sex with a minor female whose age is within three years of his own. "
Yeah, right on. Most likely neither of them can support the child so the taxpayers have to pay for the child. Which is why we in California like to have a high age of consent 
Tommyturtle said:
This would be jury nullification, Tommyturtle. Either the jury follows the law or doesn’t. One way to discourage jury nullification is to try to prevent venirepersons with biased views from getting onto the jury. Another way to encourage such a jury to follow the law would be to do as you suggest, excluding the marital history of the victim from evidence:
At one time, most statutory rape laws created an affirmative defense where the victim was “unchaste.” A few states might still retain laws with that defense, but most states have abolished such defenses and instead enacted “rape shield” laws – rules that make evidence of the victim’s sexual history inadmissible. Obviously, if the state’s statutory rape law makes the victim’s marital state an element of the crime, then the rape shield law would not bar such evidence.
Blalron said:
I don’t think I was being clear enough, Blalron. I was referring to an underage woman who either (1) is married, or (2) was married but is now divorced or widowed having sex with a man to whom she is not married. For example, suppose that you are a married 17-year-old woman in a state where the age of consent is 18. If you have an affair with your boss, he might have just committed statutory rape. That was the situation I was trying to speak to (see Tommyturtle’s OP).
In all states, as far as I know, it is not illegal for a minor woman to have sex with her husband, assuming that the marriage is legal. Even in California!
And speaking of California, Lizard, you said:
Again I apologize for my lack of clarity. In my example of how California’s statutory rape law, I implied that only males were liable. In fact, the law is gender neutral. Both the 14-year-old male and the 17-year-old female in my example above would have committed a misdemeanor. But that does not necessarily mean that both will be charged by the prosecutor. It’s incredibly difficult to make out a constitutional claim for discriminatory prosecution.
Moreover, California could constitutionally amend its statutory rape law to provide that only men and not women could be held liable. The case Michael M. v. Superior Court dealt with an Equal Protection clause challenge to a statutory rape law that punished adult males who have sex with minor females but not adult females who have sex with minor males, and upheld the constitutionality of the law. Since this was a gender discrimination, the Supreme Court applied so-called “intermediate scrutiny” to the law: it would be constitutional only if the gender classification was “substantially related to an important government interest.” The Court concluded that it was. The Court’s rationale was that the law’s gender classification was based on real biological differences rather than sexual stereotypes (women bear the risks of pregnancy in a way men don’t when engaging in underage sex such that underage women need more protection than underage men), such that the classification was substantially related to the important government interest of preventing teenage pregnancy. [The Court ignored the fact that its explanation for the law was not why the law was originally passed – it was a sexist measure enacted in the late 19th Century designed to protect girls’ virginity.] But assuming that Michael M. is still good law, and California can punish the underage male and not the female every time…
Mr. Hand I agree with keeping her other past sexual history out of the court(if the girl was the town “bike”)that doesn’t mean it’s OK for someone else to give her a shot…kind of like saying “but everyone else is speeding why are you picking on me”"
But if a girl is MARRIED then she is also presumably able to consent to someone(her husband) for sex why pretend it’s different with someone else?
I cannot see saddling a guy with a sexual predator rap in that situation.
You’re right a procecutor worth his salt would definitely keep ME off a jury in a case like that.(Or hide the circumstances so I didn’t know about her being married)
I understand Tommyturtle’s logic, and agree to some extent. But the only way to resolve the issue would be to make the age of consent be the same as the minimum age to be married without parental consent.
Marrying implies consent to sex.
So if two seventeen-year-olds have sex together they are each guilty of the statutory rape of the other? That’s draconian!
Regards,
Agback
It may be a fine point, Agback, but the CA law doesn’t use the word “rape”. I happen to agree that it’s not rape when both consent.
Rape, as we’ve heard many times, isn’t sex. It’s violence.
No, that’s not so.
Ordinarily it is so – the person making the claim bears the burden of proof.
But in this case, although it appears to me be making the claim, really, it’s you: you’re saying there is at least one state in which the underage female’s marriage transforms her ability to consent to sex with an older person not her spouse. I say there is no such state, but how can I prove it? You can prove me wrong, by listing one state’s laws that make this exception.
In other words, when the claim is that ‘X’ does not exist, the burden falls to the opposing side to show at least one instance of ‘X’.
- Rick
Nope. I said no such thing. What I said was:
I never said there definitely is a state where this state of affairs holds. What I said was that we couldn’t be certain the laws are as you described them everywhere without doing some research. And we can’t. There are all kinds of arguments for and against every type of sex crime law, but that doesn’t make them uniform everywhere. You presented a good, logical argument for your position, but that by itself doesn’t necessarily reflect the real state of affairs. Pardon the expression, but there is no law that says the law in every state must be logical, consistent, or even fair at first glance, as Mr. Hand’s example showed.
Many good points have been raised, but here’s my question…
Who is going to press charges? The girl who is having an affair? The 35 year old committing the crime? The girl’s husband? Or the girl’s parents?
Usually there wouldn’t be much of an issue unless the girl is agreeing that she was raped, statutory or otherwise. Even rape cases involving adults (women AND men) aren’t always brought to the police or to court. Sometimes it’s a matter of embarassment on the victims part, and a lot of times it’s simply lack of evidence (the victim washed it all away or waited too long to report it).