"261.5. (a) Unlawful sexual intercourse is an act of sexual
intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor.
“A current or previous dating or marital relationship shall not be
sufficient to constitute consent where consent is at issue in a
prosecution under Section 261, 262, 286, 288a, or 289.”
California PENAL CODE SECTION 261-269
&
“Although children cannot be prosecuted for felony statutory rape (unlawful intercourse between an adult and a child) because the child is the victim in such a crime, there is no parallel with regard to misdemeanor statutory rape, which by its terms involves sexual intercourse between two children.”
T.A.J. (1998) 62 Cal.App.4th 1350 [73 Cal.Rptr.331]. Court of Appeal, First District, Division 2.
My point is that the premise of the law is that a person under the age of consent is incapable of giving consent to sex because he or she does not understand the quality of the act. But if you don’t understand the quality of your act you are in law not guilty of any offence (because of mental incapacity). So it seems to me that the CA law is trying to have its cake and eat it: it holds that each of two seventeen-year-olds who have sex together both understands and fails to understand the significance of the act.
And seventeen-year-olds, for Chrissake! Seventeen! The idea that a person of seventeen does not understand the significance of sex seems absurd. At seventeen I was expected to understand vector calculus and Special Relativity. Does anyone really think that sixteen and seventeen-year-olds in California are not fucking one another left, right and centre?
The capacity to consent and the capacity to commit a crime are not linked except conceptually. Since this is GQ and not GD, I’ll limit my explanation to the factual observation that, at common law, minors (being those under the age of 21) could not consent to enter nonvoidable contracts… but at the same time, they were able to be convicted of a criminal offense just as an adult starting at the age of 7. Perhaps we can chalk this up to the notion that certain kinds of “consent” require high levels of moral/intellectual functioning (in this example, consenting to a binding contract), whereas for other kinds of “consent,” a much lower level of moral/intellectual functioning will suffice (“consenting” to live in society and being subject to the criminal laws).
California’s not necessarily trying to “have it both ways.” They’re just trying to deter teenagers from having sex – whether with each other or with adults. Even if a teenager is deemed to lack the mental functioning required to “consent” to sex in a meaningful way because teenagers cannot appreciate the full consequences of the act, surely teenagers possess the mental faculties to realize that if they engage in sex with another teenager, they have committed a crime. The inability to consent to sex is not the same thing as the incapacity to apprise the wrongfulness of one’s actions in the sexual sphere (where there are definite guidelines – such as “thou shalt not sleep with an underage girl” – to guide one’s actions).
My friends daughter is 15 she WILLINGLY and CONSENTUALLY had sex with a 20 year old guy. She contracted warts so the mother of the daughter decided to press charges against the guy and charged him with rape. Can this really be rape if the daughter had sex with him WILLINGLY? (I think the mother was just ticked off the daughter got warts and got them so bad that she had to have laser surgery)
I don’t know where this took place, Isabelle, but in the U.S. and most other countries where the legal system is descended from the UK’s, the answer is clearly yes.
Children (however the jurisdiction defines a child) do not have the legal authority to consent to sex any more than they have the legal authority to drink or to buy a house. You say that your friend’s daughter “WILLINGLY and CONSENTUALLY has sex.” Maybe it was willing, but in the technical sense, it was not consensual – in the eyes of the law kids simply cannot consent. Since non-consensual sex is rape then the fact that the child is willing doesn’t matter – her willingness isn’t consent until she becomes an adult.
In practice, the penalties for statutory rape are typically significantly less than for “regular” rape, and there are certainly lots of kids having sex that never get prosecuted, but the state can define crimes of this nature however it wants, and traditionally sex with a minor is considered rape.
It might be unfortunate for the fellow in question if he ends up being prosecuted for this crime, but it’s pretty damn skeevy for a 20 year old to be sleeping with a 15 year old – even outside of the legal definitions, in most cases anyone with common sense should be able to see that he’s an adult and she’s a kid. (Not to mention the diseases he’s spreading.)
In Canada that scenario would be legal-- although I’m not sure you can get married at 14 here. 14 is the minimum legal age to have sex.
However police in BC are now trying to charge a 34 year old guy with sexual assault because he had sex with a 14-year-old. They argue that he lied about his age-- so the teen wasn’t able to give meaningful consent.
Barbarian, expect that guy to get off. “Rape by fraud” is hard to make out (assuming that Canadian law is like American/British law on this point). This subject has been discussed to death on this board (usually in the context of whether a transsexual who lies about his or her sex in order to get someone into bed has committed rape). See, for example, here (2/5ths of way down thread) and here (5/6ths of way down thread).