# Statutory rape. **URL:** \ **Category:** Factual Questions\ **Created:** [March 20, 2006, 2:28am UTC](https://boards.straightdope.com/t/statutory-rape/349076 "2006-03-20T02:28:58Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![copperwindow](https://avatars.discourse-cdn.com/v4/letter/c/4af34b/32.png) [@copperwindow](https://boards.straightdope.com/u/copperwindow)\ **Post date:** [March 20, 2006, 2:28am UTC](https://boards.straightdope.com/t/statutory-rape/349076/1 "2006-03-20T02:28:58Z")
If I, a 29 year old male, have consensual sex with a 13 year old, I can get charged with statutory rape. What if I talk an 89 year old into it? Or someone with retardation? Is it against the law? ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [March 20, 2006, 2:44am UTC](https://boards.straightdope.com/t/statutory-rape/349076/2 "2006-03-20T02:44:51Z")
Depends where you are, and what the statutes say there. Essentially, there is no official crime named “statutory rape” – Rape is having sexual intercourse with another without their consent. Forcible rape obviously is done by compulsion of the rape victim. But according to the statute, there are people who are deemed incapable of giving consent. They include people below the specified age of consent, who are considered incapable of withstanding the blandishments of an older person and so incapable of giving consent in any real agreement-of-equals sense. In most places they also include those who are sufficiently mentally deficient to be incapable of forming an adult level of consent, regardless of their age. An 89-year-old woman in full possession of her senses might well be thrilled to have a 29-year-old male attempting to seduce her, and be quite capable of giving consent. If she is suffering from senility and hence incapable of giving consent on the same basis as mental deficiency, the same rule applies – sex with a person unable to give consent is rape by definition of statute, and hence statutory rape. There have been cases where someone engaged in sex with a woman so intoxicated that she was unable to give or withhold consent, and rape was charged; this would presumably be another case of statutory rape. It might be noted further that the law does not officially define that it must be a man charged with the rape of a woman, though homosexual rape is generally charged as buggery, sodomy, etc., depending on the state’s choice of terminology. But a 29-year-old woman engaging a 13-year-old boy in intercourse would be likewise chargeable with statutory rape, and similarly for an 89-year-old senile man, a mentally deficient man, etc. It’s fairly easy to identify where the whole concept of legal ability to consent falls down, and most states structure their laws in a way to deal with this. For example, in both New York and Pennsylvania, sex with a person of at least 14 where the two parties are less than four years apart in age is not deemed statutory rape, even though the actual age of consent to have sex with you as a 29-year-old is higher. ---
**Author:** ![copperwindow](https://avatars.discourse-cdn.com/v4/letter/c/4af34b/32.png) [@copperwindow](https://boards.straightdope.com/u/copperwindow)\ **Post date:** [March 20, 2006, 3:53am UTC](https://boards.straightdope.com/t/statutory-rape/349076/3 "2006-03-20T03:53:39Z")
> [@Polycarp](#): > > In most places they also include those who are sufficiently mentally deficient to be incapable of forming an adult level of consent, regardless of their age. What level is needed to reach “adult level”? > [@Polycarp](#): > > But a 29-year-old woman engaging a 13-year-old boy in intercourse would be likewise chargeable with statutory rape, and similarly for an 89-year-old senile man, a mentally deficient man, etc. Does this mean it is against the law for an 89-year-old senile man, a mentally deficient man, etc to have sex? ---
**Author:** ![Joey\_P](https://avatars.discourse-cdn.com/v4/letter/j/919ad9/32.png) [@Joey\_P](https://boards.straightdope.com/u/Joey_P)\ **Post date:** [March 20, 2006, 5:00am UTC](https://boards.straightdope.com/t/statutory-rape/349076/4 "2006-03-20T05:00:02Z")
> [@copperwindow](#): > > What level is needed to reach “adult level”? > > Does this mean it is against the law for an 89-year-old senile man, a mentally deficient man, etc to have sex? I _believe_ technically it’s illegal to have sex if your drunk, or rather illegal to have sex with a drunk person, they can’t give consent. But IANAL and very well could be wrong. ---
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [March 20, 2006, 2:42pm UTC](https://boards.straightdope.com/t/statutory-rape/349076/5 "2006-03-20T14:42:14Z")
[Age of Consent](http://www.ageofconsent.com) in the U.S. and around the world. ---
**Author:** ![Jessica\_Rabbit](https://avatars.discourse-cdn.com/v4/letter/j/bcef8e/32.png) [@Jessica\_Rabbit](https://boards.straightdope.com/u/Jessica_Rabbit)\ **Post date:** [March 20, 2006, 3:00pm UTC](https://boards.straightdope.com/t/statutory-rape/349076/6 "2006-03-20T15:00:05Z")
I dealt with this law a lot. For two reasons, one being to do with child abuse in the family, the other was that I was sexually active pretty early and have always been attracted, almost exclusivly, to people at least a few years older than me. It is not easy to find current, full laws on it in Australia. However, after a lot of searching, this is what I found (these are not for all of Australia, btw): Under 10 = Sex is never legal (although I could find out what would happen if you were both under 10, who do they punish? Anyone? Even the parents maybe? Over 10, under 15 = Sex is illegal if there is more than a 2 year age gap. Over 15, under 18 = Sex is only illegal for someone who is over 18 and resposible for the teenager. Over 18 = all “consentual” sex is legal (ie, at this point the teenager can consent for him/herself). So as you can see, there can be a lot to it. I was expecting to just find an age, one number, but (in Australia, at least) it can be far more complex. ---
**Author:** ![Shalmanese](https://avatars.discourse-cdn.com/v4/letter/s/45deac/32.png) [@Shalmanese](https://boards.straightdope.com/u/Shalmanese)\ **Post date:** [March 20, 2006, 3:04pm UTC](https://boards.straightdope.com/t/statutory-rape/349076/7 "2006-03-20T15:04:29Z")
> [@Jessica Rabbit](#): > > I dealt with this law a lot. For two reasons, one being to do with child abuse in the family, the other was that I was sexually active pretty early and have always been attracted, almost exclusivly, to people at least a few years older than me. > > It is not easy to find current, full laws on it in Australia. However, after a lot of searching, this is what I found (these are not for all of Australia, btw): > > Under 10 = Sex is never legal (although I could find out what would happen if you were both under 10, who do they punish? Anyone? Even the parents maybe? > > Over 10, under 15 = Sex is illegal if there is more than a 2 year age gap. > > Over 15, under 18 = Sex is only illegal for someone who is over 18 and resposible for the teenager. > > Over 18 = all “consentual” sex is legal (ie, at this point the teenager can consent for him/herself). > > So as you can see, there can be a lot to it. I was expecting to just find an age, one number, but (in Australia, at least) it can be far more complex. Are you sure about those numbers? According to [Age of Consent](http://www.ageofconsent.com/victoria.htm), the boundary is 16, not 15 and it varies state by state what the specifics are. ---
**Author:** ![Jessica\_Rabbit](https://avatars.discourse-cdn.com/v4/letter/j/bcef8e/32.png) [@Jessica\_Rabbit](https://boards.straightdope.com/u/Jessica_Rabbit)\ **Post date:** [March 20, 2006, 3:16pm UTC](https://boards.straightdope.com/t/statutory-rape/349076/8 "2006-03-20T15:16:07Z")
> [@Shalmanese](#): > > Are you sure about those numbers? According to [Age of Consent](http://www.ageofconsent.com/victoria.htm), the boundary is 16, not 15 and it varies state by state what the specifics are. The book in which I found those numbers is in my uni library, I’ll find it tomorrow and look it up again (that was a while ago, there might be a new book out now, I haven’t need that law in the last few months 😛 ::has found one great thing about being 18::). ---
**Author:** ![Billdo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/billdo/32/315_2.png) [@Billdo](https://boards.straightdope.com/u/Billdo)\ **Post date:** [March 20, 2006, 7:42pm UTC](https://boards.straightdope.com/t/statutory-rape/349076/9 "2006-03-20T19:42:48Z")
Under the article of the New York Penal Law on[Sex Offences](http://caselaw.lp.findlaw.com/nycodes/c82/a29.html): > [@Sec. 130.05(3)](#): > > 1. A person is deemed incapable of consent when he or she is: > (a) less than seventeen years old; or > (b) mentally disabled; or > © mentally incapacitated; or > (d) physically helpless; or > (e) committed to the care and custody of the state department of correctional services or a hospital, . . . , and the actor is an employee, not married to such person, who knows or reasonably should know that such person is committed to the care and custody of such department or hospital. . . . The terms in (b), © and (d) are defined as: > [@Sec. 130.00](#): > > 1. “Mentally disabled” means that a person suffers from a mental disease or defect which renders him or her incapable of appraising the > nature of his or her conduct. > 2. “Mentally incapacitated” means that a person is rendered temporarily incapable of appraising or controlling his conduct owing to the influence of a narcotic or intoxicating substance administered to him without his consent, or to any other act committed upon him without his consent. > 3. “Physically helpless” means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act. ---
**Author:** ![copperwindow](https://avatars.discourse-cdn.com/v4/letter/c/4af34b/32.png) [@copperwindow](https://boards.straightdope.com/u/copperwindow)\ **Post date:** [March 21, 2006, 12:17am UTC](https://boards.straightdope.com/t/statutory-rape/349076/10 "2006-03-21T00:17:57Z")
So does this mean that the mentally impared are not leagally allowed to engage in sex? ---
**Author:** ![Zabali\_Clawbane](https://avatars.discourse-cdn.com/v4/letter/z/ecd19e/32.png) [@Zabali\_Clawbane](https://boards.straightdope.com/u/Zabali_Clawbane)\ **Post date:** [March 21, 2006, 12:24am UTC](https://boards.straightdope.com/t/statutory-rape/349076/11 "2006-03-21T00:24:29Z")
I think that law means if the person is in a mental facility, one of the workers in that facility can’t have sex with the patient/inmate. That’s how I understood it. ---
**Author:** ![copperwindow](https://avatars.discourse-cdn.com/v4/letter/c/4af34b/32.png) [@copperwindow](https://boards.straightdope.com/u/copperwindow)\ **Post date:** [March 21, 2006, 12:48am UTC](https://boards.straightdope.com/t/statutory-rape/349076/12 "2006-03-21T00:48:13Z")
Okay, let’s dumb it down a bit. If I’m a person suffers from a mental disease or defect which renders me incapable of appraising the nature of my conduct, what ever that means, can I have consenual sex without the state telling me that in actuallyity, I was raped? ---
**Author:** ![Zabali\_Clawbane](https://avatars.discourse-cdn.com/v4/letter/z/ecd19e/32.png) [@Zabali\_Clawbane](https://boards.straightdope.com/u/Zabali_Clawbane)\ **Post date:** [March 21, 2006, 1:07am UTC](https://boards.straightdope.com/t/statutory-rape/349076/13 "2006-03-21T01:07:52Z")
I’d say it depends on the person. I do think there are some people who are the mental/emotional age of a child involved in court cases because they had sex, and the prosecutors went forth with the idea that they could never consent, because they can’t understand things as an adult can, and ever will be able to due to their illness. (I can’t bring up cites for this, maybe someone knows of one of the cases I’m speaking of.) Some people will never be able to give consent, but the number is pretty low I’d say. ---
**Author:** ![doreen](https://avatars.discourse-cdn.com/v4/letter/d/858c86/32.png) [@doreen](https://boards.straightdope.com/u/doreen)\ **Post date:** [March 21, 2006, 1:18am UTC](https://boards.straightdope.com/t/statutory-rape/349076/14 "2006-03-21T01:18:01Z")
> [@copperwindow](#): > > Okay, let’s dumb it down a bit. If I’m a person suffers from a mental disease or defect which renders me incapable of appraising the nature of my conduct, what ever that means, can I have consenual sex without the state telling me that in actuallyity, I was raped? The person suffering from a mental disease or defect which renders him or her incapable of appraising the nature of their conduct _cannot_ have consensual sex, because the person is legally incapable of consent. But the mental disease or defect doesn’t mean someone with an IQ of 85, or who has been diagnosed with depression. Think of someone far more disabled, the sort of person whose parents spend their lives worrying about who will take care of him or her after the parents die, because the child will never be able to live on their own. The kind of people who have guardians to make the medical, financial and legal decisions that the person is incapable of making for him or her self ---
**Author:** ![copperwindow](https://avatars.discourse-cdn.com/v4/letter/c/4af34b/32.png) [@copperwindow](https://boards.straightdope.com/u/copperwindow)\ **Post date:** [March 21, 2006, 1:31am UTC](https://boards.straightdope.com/t/statutory-rape/349076/15 "2006-03-21T01:31:14Z")
> [@doreen](#): > > The person suffering from a mental disease or defect which renders him or her incapable of appraising the nature of their conduct _cannot_ have consensual sex, because the person is legally incapable of consent. But the mental disease or defect doesn’t mean someone with an IQ of 85, or who has been diagnosed with depression. Think of someone far more disabled, the sort of person whose parents spend their lives worrying about who will take care of him or her after the parents die, because the child will never be able to live on their own. The kind of people who have guardians to make the medical, financial and legal decisions that the person is incapable of making for him or her self Okay, let’s say I’m an 89 year old suffering from alzheimer disease. I’m living in an assisted living program and I’m not completely sure where I am. In my haze, I go to a bar and meet someone who thinks alzheimer disease is kinda sexy and I think “well, I haven’t had sex in the past decade, and I think I miss it…”. Was I raped, even if I put the moves on? ---
**Author:** ![JRDelirious](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jrdelirious/32/9531_2.png) [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)\ **Post date:** [March 21, 2006, 2:08am UTC](https://boards.straightdope.com/t/statutory-rape/349076/16 "2006-03-21T02:08:01Z")
**cooperwindow** , whether you are capable of “appraising the nature of your conduct” would be a question before the experts that examine you in the investigative phase of the case, and before the Court in the trial phase. And it would be a very rare DA/Court that would not have at its disposal a large body of precedent and psychologists’ writings as to what exactly meets that test in your jurisdiction: **they will not be making it up out of thin air for you.** (That, as opposed to us in this Message Boards, who have to speculate some hypothetical “Anywheresville” district where some generic universal rule applies.) And if you indeed are diagnosed as having a degree of mental disability that renders you incapable of any meaningful consent, by the standard of the Law and the Court, then under the law (at least where I live) the other party has committed a sexual battery and **whether or not you wanted it or even enjoyed it is not determinant.** In “statutory” rape, one of the basic presumptions is that the party who is an adult in full use of his/her physical/mental faculties should know better than to take advantage of someone who is not so, and is legally obligated to not go along with the advances of the impaired person. In your latest hypothetical, the “someone who thinks dementia’s sexy” would probably get off with a mental impairment defense of his/her own, as any court in the land would rule that that’s just not normal… ---
**Author:** ![copperwindow](https://avatars.discourse-cdn.com/v4/letter/c/4af34b/32.png) [@copperwindow](https://boards.straightdope.com/u/copperwindow)\ **Post date:** [March 21, 2006, 2:23am UTC](https://boards.straightdope.com/t/statutory-rape/349076/17 "2006-03-21T02:23:05Z")
I have sexual relations with my girlfriend (I hope that’s not “too much information” for the teeming millions). I am **not** a board certified psychiatrist, and cannot make an accurate diagnosis as to her state of mind. How am I to know whether or not I am raping her? And if she were hypothetically incapable of aIppraising the nature of her conduct and overpowered me by stregnth and rapes me, was I raped? Were either of us rapes, so far as the law is concerned? If both of us and incapable of appraising the nature of our conduct and we have sex, who raped who? ---
**Author:** ![Zabali\_Clawbane](https://avatars.discourse-cdn.com/v4/letter/z/ecd19e/32.png) [@Zabali\_Clawbane](https://boards.straightdope.com/u/Zabali_Clawbane)\ **Post date:** [March 21, 2006, 2:34am UTC](https://boards.straightdope.com/t/statutory-rape/349076/18 "2006-03-21T02:34:44Z")
If you are that uncertain, you might go with the idea put forth in [this](http://www.nbc11.com/news/2647671/detail.html) news story. ---
**Author:** ![doreen](https://avatars.discourse-cdn.com/v4/letter/d/858c86/32.png) [@doreen](https://boards.straightdope.com/u/doreen)\ **Post date:** [March 21, 2006, 2:46am UTC](https://boards.straightdope.com/t/statutory-rape/349076/19 "2006-03-21T02:46:33Z")
> [@copperwindow](#): > > I have sexual relations with my girlfriend (I hope that’s not “too much information” for the teeming millions). I am **not** a board certified psychiatrist, and cannot make an accurate diagnosis as to her state of mind. How am I to know whether or not I am raping her? Actually, in NY it’s pretty easy to know. If you don’t know that she has such a mental disease or defect, then that’s an affirmative defense and you won’t be found guilty of rape if you’re believed-( if you’re even somehow arrested and prosecuted). Could work if you picked her up in a bar after she wandered out of the group home. Probably not if you grew up living next door to each other. BTW, the standard for being capable of consent in NY is not all that different from the standard for being held criminally responsible. So if you’re both incapable of consent, chances are neither of you can be held crimminally responsible either. ---
**Author:** ![Go\_You\_Big\_Red\_Fire\_Engine](https://avatars.discourse-cdn.com/v4/letter/g/eada6e/32.png) [@Go\_You\_Big\_Red\_Fire\_Engine](https://boards.straightdope.com/u/Go_You_Big_Red_Fire_Engine)\ **Post date:** [March 21, 2006, 5:35am UTC](https://boards.straightdope.com/t/statutory-rape/349076/20 "2006-03-21T05:35:41Z")
> [@Jessica Rabbit](#): > > I dealt with this law a lot. For two reasons, one being to do with child abuse in the family, the other was that I was sexually active pretty early and have always been attracted, almost exclusivly, to people at least a few years older than me. > > It is not easy to find current, full laws on it in Australia. However, after a lot of searching, this is what I found (these are not for all of Australia, btw): > > Under 10 = Sex is never legal (although I could find out what would happen if you were both under 10, who do they punish? Anyone? Even the parents maybe? > > Over 10, under 15 = Sex is illegal if there is more than a 2 year age gap. > > Over 15, under 18 = Sex is only illegal for someone who is over 18 and resposible for the teenager. > > Over 18 = all “consentual” sex is legal (ie, at this point the teenager can consent for him/herself). > > So as you can see, there can be a lot to it. I was expecting to just find an age, one number, but (in Australia, at least) it can be far more complex. Not quite right. The [Criminal Code act of 1995](http://www.comlaw.gov.au/ComLaw/Legislation/ActCompilation1.nsf/bodylodgmentattachments/22A699DE2F39A8F3CA25711600152625?OpenDocument) states(268.14, you’ll have to scroll a lot): > [@](#): > > (1) A person (the perpetrator) commits an offence if: > (a) the perpetrator sexually penetrates another person without the consent of that person; and > (b) the perpetrator knows of, or is reckless as to, the lack of consent; and > … > (3) In this section: > > consent means free and voluntary agreement. > > The following are examples of circumstances in which a person does not consent to an act: > > (a) the person submits to the act because of force or the fear of force to the person or to someone else; > (b) the person submits to the act because the person is unlawfully detained; > © the person is asleep or unconscious, or is so affected by alcohol or another drug as to be incapable of consenting; > (d) the person is incapable of understanding the essential nature of the act; > (e) the person is mistaken about the essential nature of the act (for example, the person mistakenly believes that the act is for medical or hygienic purposes); > (f) the person submits to the act because of psychological oppression or abuse of power; > (g)the person submits to the act because of the perpetrator taking advantage of a coercive environment. Also, this is a [historical act](http://lawsearch.gov.au/html/histact/1/906/0/HA000560.htm) that I am not sure is still relevant as I have not much experience with law(they amending it at the moment, so it must be?), but I have found nothing more recent: > [@](#): > > 92E.(1) A person who engages in sexual intercourse with another person who is under the age of 10 years is guilty of an offence punishable, on > conviction, by imprisonment for 17 years. > (2) A person who engages in sexual intercourse with another person who is > of or above the age of 10 years but under the age of 16 years is guilty of an > offence punishable, on conviction, by imprisonment for 14 years. > (3) It is a defence to a prosecution for an offence under subsection (2) if > the defendant establishes that: > (a) he or she believed on reasonable grounds that the person upon whom the > offence is alleged to have been committed was of or above the age of 16 years; > or > (b) at the time of the alleged offence, the defendant was not more than 2 > years older than the person upon whom the offence is alleged to have been > committed; > and that that person consented to the sexual intercourse. Also, if you’re under 10 you are “incapable” of committing a crime. See the Criminal Code Act 1995, under Part 2.3 Division 7. So, if two 10 year olds have sex, no-one is punished. Currently, if you are in NSW there is a discrepency between the sexes and sexual orientation for the age. There is a [bill](http://www.apo.org.au/linkboard/results.chtml?filename_num=15361) that is being passed that will make this equal at 16. This is also denying people the ability to [claim a reasonable mistake of age (3a above int he historical act)](http://www.parliament.nsw.gov.au/prod/parlment/hansart.nsf/V3Key/LA20030506009). But way to go for bringing in the fact you like having sex with older men. It’s really appropriate in GQ. [Next page](https://boards.straightdope.com/t/statutory-rape/349076.md?page=2)