# Legal question about rape **URL:** \ **Category:** Factual Questions\ **Created:** [November 19, 2000, 4:09pm UTC](https://boards.straightdope.com/t/legal-question-about-rape/41852 "2000-11-19T16:09:58Z")\ **Posts on this page:** 18\ **Page:** 1
**Author:** ![quasar](https://avatars.discourse-cdn.com/v4/letter/q/48db29/32.png) [@quasar](https://boards.straightdope.com/u/quasar)\ **Post date:** [November 19, 2000, 4:09pm UTC](https://boards.straightdope.com/t/legal-question-about-rape/41852/1 "2000-11-19T16:09:58Z")
Let’s assume for the sake of the question I am about to propose that two 17 year olds, Mike and Laura, are engaging in sexual relations. One day Mike becomes 18, an adult in the eyes of the law. The next day they have sex once again. Technically, even though Laura has been Mike’s girlfriend for years, he raped her since she is a minor and he is not. Could he be convicted on charges of statutory rape, or is there a provision in the law that allows for exceptions to the norm, such as this one, to happen without any legal punishment being imposed? ---
**Author:** ![wring](https://avatars.discourse-cdn.com/v4/letter/w/838e76/32.png) [@wring](https://boards.straightdope.com/u/wring)\ **Post date:** [November 19, 2000, 4:17pm UTC](https://boards.straightdope.com/t/legal-question-about-rape/41852/2 "2000-11-19T16:17:00Z")
depends. Some states will take the “relative” age into account (no, not the age of the relative), but that they wouldn’t charge a person who is only a little older than the other person. Other states (and my state, MI is one) do not take this into account, so I did talk to a guy who at age 17, had a mutual sexual encounter with a 15 year old and has to register as a child molester. ---
**Author:** ![RealityChuck](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/realitychuck/32/195_2.png) [@RealityChuck](https://boards.straightdope.com/u/RealityChuck)\ **Post date:** [November 19, 2000, 4:26pm UTC](https://boards.straightdope.com/t/legal-question-about-rape/41852/3 "2000-11-19T16:26:09Z")
It depends mostly on whether the D.A. wants to press charges. If the age difference is great, they usually do; if they’re 18 and 17, they don’t usually bother. ---
**Author:** ![Una\_Persson](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/una_persson/32/346_2.png) [@Una\_Persson](https://boards.straightdope.com/u/Una_Persson)\ **Post date:** [November 19, 2000, 4:34pm UTC](https://boards.straightdope.com/t/legal-question-about-rape/41852/4 "2000-11-19T16:34:23Z")
In Kansas, yes, he would be a rapist. It would be entirely up to the descretion of the local DA whether to prosecute. This happened when I was in HS, to a guy who was hated deeply by the girl’s parents, who I understand were counting the days down until he turned 18. Then they called the police who caught the couple out at Olathe Lake. Although no sex was happening at the time, they found a single condom in the glove compartment of the car, which they said was “prima facie evidence tht sex had occured or was about to”. A jury agreed. He was also denied entrance into the diversion program due to a previous drug charge from when he was under 18 (don’t know how they could do that, but it happened), so although he served no jail time, he still was out thousands in court costs, and he now has a felony record. He was a creep, true, but I don’t think justice was really served by these actions. ---
**Author:** ![bibliophage](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bibliophage/32/7615_2.png) [@bibliophage](https://boards.straightdope.com/u/bibliophage)\ **Post date:** [November 19, 2000, 10:33pm UTC](https://boards.straightdope.com/t/legal-question-about-rape/41852/5 "2000-11-19T22:33:02Z")
> [@](#): > > \*Originally posted by Anthracite \* > **they found a single condom in the glove compartment of the car, which they said was "prima facie evidence tht sex had occured or was about to.** God damn! That seems more than a little unfair. I know guys who haven’t gotten laid in years who still keep a condom in their wallets just in case. The laws by country and state are summarized [here](http://www.ageofconsent.com/ageofconsent.htm). In the U.S. the age of consent ranges from 14 in Hawaii to 18 in about a dozen states. Most states seem to use 16 or 17. Click on the state in question for details about age differences. For example, in Maine, it is illegal if the older person is over 18 and the younger person is between 14 and 16, but only if the age difference is at least 5 years. So 18-14 and 45-16 are both legal, but 21-15 and 18-13 are illegal. In Maine there is another clause making it illegal for school employees to have sex with students, even if the ages would otherwise make it legal. ---
**Author:** ![handy](https://avatars.discourse-cdn.com/v4/letter/h/b5a626/32.png) [@handy](https://boards.straightdope.com/u/handy)\ **Post date:** [November 19, 2000, 11:27pm UTC](https://boards.straightdope.com/t/legal-question-about-rape/41852/6 "2000-11-19T23:27:51Z")
“D.A. wants to press charges” Hmmmmm, I always thought it was the folks who have to bring charges as they are legally responsible for children. ---
**Author:** ![quasar](https://avatars.discourse-cdn.com/v4/letter/q/48db29/32.png) [@quasar](https://boards.straightdope.com/u/quasar)\ **Post date:** [November 19, 2000, 11:35pm UTC](https://boards.straightdope.com/t/legal-question-about-rape/41852/7 "2000-11-19T23:35:57Z")
I understand (even though I not share) the law’s intent on establishing a particular age as a starting platform to endow an individual with the right to make decisions regarding his/her sexuality. Where I was trying to get at is this: why would a law-abiding event, such as Mike and Laura having sex, be suddenly considered illegal if there has not being a change in the existing legislation, the age differential between the involved parties has remained constant, and the relation is still consensual? ---
**Author:** ![douglips](https://avatars.discourse-cdn.com/v4/letter/d/e68b1a/32.png) [@douglips](https://boards.straightdope.com/u/douglips)\ **Post date:** [November 19, 2000, 11:42pm UTC](https://boards.straightdope.com/t/legal-question-about-rape/41852/8 "2000-11-19T23:42:21Z")
> [@](#): > > \*Originally posted by handy \* > \*\*“D.A. wants to press charges” > Hmmmmm, I always thought it was the folks who have to bring charges as they are legally responsible for children. \*\* I believe it depends on jurisdiction, but in many cases the DA can press charges without some civilian saying “I was wronged!” For example, spousal abuse where the victim refuses to testify/press charges, can still be prosecuted by the DA in some places. So, if Billy Bob and Mary Sue’s daughter Betty Lou, age 12, is having sexual relations (with her parents’ consent) with Joey Ray, age 42, the DA can prosecute even though the parents say it’s OK with them. ---
**Author:** ![Max\_Torque](https://avatars.discourse-cdn.com/v4/letter/m/e9bcb4/32.png) [@Max\_Torque](https://boards.straightdope.com/u/Max_Torque)\ **Post date:** [November 19, 2000, 11:49pm UTC](https://boards.straightdope.com/t/legal-question-about-rape/41852/9 "2000-11-19T23:49:54Z")
> [@](#): > > \*Originally posted by quasar \* > **Where I was trying to get at is this: why would a law-abiding event, such as Mike and Laura having sex, be suddenly considered illegal if there has not being a change in the existing legislation, the age differential between the involved parties has remained constant, and the relation is still consensual?** You’ll forgive me for not looking up exact statutes, but, in your example, the kids are probably quite safe. Most states’ rape statutes, besides setting the minimum age for which sex with a legal adult may be considered “consensual”, also provide something along the lines that “it is an affirmative defense to prosecution that the actor is not more than 3 years older than the victim”. Hence, you shouldn’t go to jail for having sex with your girlfriend as long as she’s more than 15 years old on your 18th birthday. I say “shouldn’t” only because you never know how this wacky stuff’ll turn out. If you want to read some state statutes, go to [Age of Consent](http://www.ageofconsent.com). ---
**Author:** ![Tristan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tristan/32/18058_2.png) [@Tristan](https://boards.straightdope.com/u/Tristan)\ **Post date:** [November 20, 2000, 1:01am UTC](https://boards.straightdope.com/t/legal-question-about-rape/41852/10 "2000-11-20T01:01:35Z")
Also, keep in mind that at least here in CA, from what I’ve heard, it’s not legal for minors to have sex at all, regardless of who it’s with… So your 16 year old son, who’s having sex with his 16 year old girlfriend, is in danger of getting a sex charge of some sort… I misremember which one right now. Pretty jacked up, but where do you draw the line, with 12 year old girls busting _ahem_ out and dressing like 22 year olds going clubbing? Where is the line? ---
**Author:** ![Lamia](https://avatars.discourse-cdn.com/v4/letter/l/8e7dd6/32.png) [@Lamia](https://boards.straightdope.com/u/Lamia)\ **Post date:** [November 20, 2000, 3:02am UTC](https://boards.straightdope.com/t/legal-question-about-rape/41852/11 "2000-11-20T03:02:28Z")
> [@](#): > > \*Originally posted by quasar \* > \*\*Let’s assume for the sake of the question I am about to propose that two 17 year olds, Mike and Laura, are engaging in sexual relations. One day Mike becomes 18, an adult in the eyes of the law. The next day they have sex once again. Technically, even though Laura has been Mike’s girlfriend for years, he raped her since she is a minor and he is not. Could he be convicted on charges of statutory rape, or is there a provision in the law that allows for exceptions to the norm, such as this one, to happen without any legal punishment being imposed? > \*\* Aside from the age gap thing mentioned by several other posters, in some areas statuatory rape laws only apply if the minor involved was a virgin. ---
**Author:** ![Bear\_Nenno](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bear_nenno/32/3358_2.png) [@Bear\_Nenno](https://boards.straightdope.com/u/Bear_Nenno)\ **Post date:** [November 20, 2000, 3:55am UTC](https://boards.straightdope.com/t/legal-question-about-rape/41852/12 "2000-11-20T03:55:14Z")
Here. This is a post I made in another thread. It only applies to Florida though… [http://boards.straightdope.com/sdmb/showthread.php?threadid=28516](http://boards.straightdope.com/sdmb/showthread.php?threadid=28516) > [@](#): > > Well obviously laws are going to be different in every state and especially in other countries. I can tell you all how things are done here in the sunny state of Florida. > > Sex without consent is ilegal at any age… duh! > Now sex WITH consent gets a little trickier. > > If the victim (does not matter if male of female) is under 12 then the crime is a SEXUAL BATTERY, a CAPITAL felony. This varies a little depending on other factors like mulitple aggressors or underaged aggressors and so on. But for the most part it is a capital felony and they get to sit in OLD SPARKY the electric chair for their crime. > **794.011 Sexual battery.** – > (2)(a) A person 18 years of age or older who commits sexual battery upon, or in an attempt to commit sexual battery injures the sexual organs of, a person less than 12 years of age commits a capital felony, > > Now you are all wondering “What about 12 and 13 year olds? Can we have sex with them in Florida?” > > Of course not!! > We have a crime for that too. (\*\*800.04 Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age.-- \*\* It’s really long!) > > It is usually a third or second degree felony depending on factors involved, but for the most part, any person having sex with or in front of a person under 16 is committing a crime. THAT INCLUDES A 15 YEAR OLD HAVING SEX WITH ANOTHER 15 YEAR OLD. Someone posted earlier about a law in their state that lets people the same age, or close to the same age,have sex. Not here. Of course you have to consider the fact that no cop is going to arrest two high school freshman for having sex. At least I’m not! And if a parent complains that their daughter had sex with a boy and they want the boy arrested, their daughter would have to be arrested too, because two consenting 15 year olds having sex with each other are commiting a felony. > > Sucks huh? and speaking of sucking, oral sex is ilegal here too. but that is an issue for another thread. > > No you are asking yourselves. “So we can have sex with people over 16 right??” > > Well maybe… This is where the age of consent comes on. 16 and 17 year olds can have sex with anyone under 24. So teenagers can start having sex at 16 and they do not have to worry when their partner turns 18 before they do, or anything like that. 16 - 23 is a pretty big gap but that is how it is here. And anyone 24 or older who has sex with a 16 year is commiting a crime. But a 23 year old shagging away with a person on their 16th birthday is doing nothing wrong, at least not legally wrong. > > **794.05 Unlawful sexual activity with certain minors.** – > (1) A person 24 years of age or older who engages in sexual activity with a person 16 or 17 years of age commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. As used in this section, “sexual activity” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another; however, sexual activity does not include an act done for a bona fide medical purpose. > > None of the laws here are sexually biased. Females have been sentenced for sexual battery on males and even other females. > > Hope this helps… > > Bear ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [November 20, 2000, 2:01pm UTC](https://boards.straightdope.com/t/legal-question-about-rape/41852/13 "2000-11-20T14:01:38Z")
> [@](#): > > \*Originally posted by Bear\_Nenno \* > [Florida Statute] > **794.05 Unlawful sexual activity with certain minors.** – > (1) A person 24 years of age or older who engages in sexual activity with a person 16 or 17 years of age commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. As used in this section, “sexual activity” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another; \*\*however, sexual activity does not include an act done for a bona fide medical purpose. \*\* > [second boldface added] “Hey doc? Listen, I need a prescription …” Sua ---
**Author:** ![Una\_Persson](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/una_persson/32/346_2.png) [@Una\_Persson](https://boards.straightdope.com/u/Una_Persson)\ **Post date:** [November 20, 2000, 2:10pm UTC](https://boards.straightdope.com/t/legal-question-about-rape/41852/14 "2000-11-20T14:10:04Z")
> [@](#): > > \*Originally posted by SuaSponte \* > \*\* > > > [@](#): > > > > \*Originally posted by Bear\_Nenno \* > > [Florida Statute] > > **794.05 Unlawful sexual activity with certain minors.** – > > (1) A person 24 years of age or older who engages in sexual activity with a person 16 or 17 years of age commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. As used in this section, “sexual activity” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another; \*\*however, sexual activity does not include an act done for a bona fide medical purpose. \*\* > > [second boldface added] > > “Hey doc? Listen, I need a prescription …” > Sua \*\* Ehh…I’m just glad no one made any cracks about “beef injections” yet. Oops! ---
**Author:** ![handy](https://avatars.discourse-cdn.com/v4/letter/h/b5a626/32.png) [@handy](https://boards.straightdope.com/u/handy)\ **Post date:** [November 20, 2000, 4:12pm UTC](https://boards.straightdope.com/t/legal-question-about-rape/41852/15 "2000-11-20T16:12:55Z")
"Also, keep in mind that at least here in CA, from what I’ve heard, it’s not legal for minors to have sex at all, regardless of who it’s with… " Not so. First of all, a minor is someone under 21. A child is someone under 18. Yes, in California, children can legally have sex under 18 if their folks give permission. My sister gave permission for her daughter to get married when she was under 18, the legal age of consent in California. Some actors also get married under 18. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 20, 2000, 7:49pm UTC](https://boards.straightdope.com/t/legal-question-about-rape/41852/16 "2000-11-20T19:49:38Z")
As so many other posters have stated, every state’s laws are a bit different. The situation described in the OP could be completely legal, completely illegal, or, as the OP speculates, legal before and illegal afterwards. It just depends on what the law says. That out of the way, it’s not unheard of for the law to permit behavior at one age that it would frown upon at another. Bert, a 20-year-old, may not drink liquor, and can be arrested for possessing it. But if the next day is his birthday, he may now legally possess and drink it. Why is the OP’s situation substantially different? By the way - Anthracite’s “Although no sex was happening at the time, they found a single condom in the glove compartment of the car, which they said was ‘prima facie evidence tht sex had occured or was about to’. A jury agreed.” I suspect there was something more. A condom in the glove compartment is circumstantial evidence. While circumstantial evidence alone certainly can sustain a conviction, it must reasonably exclude all other innocent hypotheses. The condom, even in a car with two teens on a “lover’s lane,” does not do this. This is not to say that it didn’t happen – juries will often convict on factually or legally insufficient evidence. The problem here, if this did happen as described, was that the judge should have dismissed the case, or granted a motion for a new trial afterwards, or the defense attorney should have moved for dismissal, moved for a new trial, or appealed. Appellate decisions are full of cases reversed for just this kind of lack. - Rick ---
**Author:** ![Tristan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tristan/32/18058_2.png) [@Tristan](https://boards.straightdope.com/u/Tristan)\ **Post date:** [November 21, 2000, 12:54am UTC](https://boards.straightdope.com/t/legal-question-about-rape/41852/17 "2000-11-21T00:54:16Z")
> [@](#): > > \*Originally posted by handy \* > \*\*"Also, keep in mind that at least here in CA, from what I’ve heard, it’s not legal for minors to have > sex at all, regardless of who it’s with… " > > Not so. First of all, a minor is someone under 21. A child is someone under 18. > > Yes, in California, children can legally have sex under 18 if their folks give permission. My sister gave permission for her daughter to get married when she was under 18, the legal age of consent in California. Some actors also get married under 18. \*\* I’ve heard that before, but when I discussed it with a fella that’s taking law classes (for fun, he’s really a computer geek) he said that it was a common misconception. Of course, I have no actual cites, but I am going to ask my 2 cop friends and see if I get the same answer. This is an interesting thread. Hmmm… the wife and I think we’ll vacation in Florida this year… heheh (just kidding folks, yeesh!) ---
**Author:** ![handy](https://avatars.discourse-cdn.com/v4/letter/h/b5a626/32.png) [@handy](https://boards.straightdope.com/u/handy)\ **Post date:** [November 21, 2000, 1:24am UTC](https://boards.straightdope.com/t/legal-question-about-rape/41852/18 "2000-11-21T01:24:44Z")
Tristan, I was a moderator on a board once (not this one). The boss got a lawyer & the lawyer explained minors/children & we went by what he said.