Underage sex, is it rape?

In My Humble Opinion
121

Date rape is rape, period. It’s a matter of technique, sometimes rapists jump women in dark alleys and sometimes rapists meet women through a dating app or in a bar and lure them somewhere private.

There was an article about this in The Atlantic a few years back. The article talked the efforts to clear the nationwide backlog of rape kits. There are many reasons the kits weren’t processed -frequently negligence, but sometimes they weren’t processed because there was no question about the identity of the attacker.
But when those kits were finally run and the DNA entered into a database, they got a lot of hits on other unsolved rapes. Lots of them, with all sorts of methodologies. Guys that had committed “date rapes” also committed violent stranger rapes. It turns out that some rapists might try to charm one woman in the bar….and if that doesn’t work out they might grab another woman in the parking lot. It’s the same guys, and most of them do it over and over. The other big finding from the rape kit study was that serial rape is way more common than it was previously believed to be.

122

I didn’t mean to claim statutory rape was never prosecuted. I am saying that I think it’s taken way more seriously now than in was in the early 1970’s. I can’t find any statistics on the subject, so this is my opinion. My opinion is not based on one incident, but the totality of my experience as someone that came of age as an attractive young woman in the early 1970’s ( I was 13 in 1970 ), as well as the experiences of my friends.

Here are some examples.

I went to a fairly liberal Episcopalian church and belonged to the youth group. We ate pizza and played guitar and sang Kumbaya and talked about the meaning of life. We also took weekend field trips and went to camp for a week in the summer. There were several youth advisors including some guys in their mid-twenties. Two of those guys were having sexual relationships with underage high school girls in the group, and buying them alcohol on the overnight trips.

In high school, some of my friends and I volunteered at the theatre in the local arts center, it had a cool sort of hippie vibe and a lot of the paid employees and other volunteers were men in their mid-twenties and everyone socialized together. It was very cool for us. We were going to real grown-up parties every weekend, like casual dinner parties with lasagna and wine and marijuana, or dress-up fundraisers with open bars ( and no one checking ID ). And a lot of the men were having sexual relationships with 15 and 16 year old volunteers.

The last example involves an arts program at a local university my parents paid for my sister and me to attend one summer. It was a real treat for us because it was a live-in program, and we stayed on-campus in a dorm, even though we lived less than 2 miles away. A lot of the instructors were young men in their twenties (are you seeing a theme?). It’s pretty much the same story, except one of the girls was also forcibly raped when she was extremely intoxicated.

These incidents have a lot in common. These guys weren’t what you’d consider creepy, they were good looking and intelligent and easy to talk to. We had a good time at the events I described and we were thrilled to be treated like adults. People knew it was happening, dozens of people knew about dozens of individual incidents (including the forcible rape) and no one ( including me )said anything.

It was a different time. I was there. It was different. People didn’t take statutory rape of teens as seriously. There were some pop psychology types that even maintained teens being sexually initiated by loving adults was a good thing. I’m not saying it was never prosecuted - I’m sure some well-connected vengeful father could make it happen, but I’m going to maintain it wasn’t the norm.

People also didn’t take marital rape as seriously as they do now. They didn’t take domestic abuse as seriously, either. They didn’t take child abuse as seriously either, unless the child actually collapsed in school. We all knew which of our classmates had parents that beat them. They had a rather lax attitude about older women and underage boys, that wasn’t even a crime yet in some places.

They didn’t really recognize the coercive potential of power differentials back then, either. You’ll notice my examples all involve men that were official adult advisors. They certainly didn’t understand that these differentials were problematic even when both parties were of legal age. When I was in college there was no policy - official or unofficial- against professors and teachers dating their students, and it was extremely common for students to sleep with (and even cohabitate with) their professors.

It really was different back then.

We still have a long way to go, but it’s way better now. When I was a little girl I danced around to the Beatles singing “I’d rather see you dead little girl than to see you with another man.”
Speaking of rape culture, in my state, it was perfectly legal for a man to rape his wife until 1993. It’s still bad, but it’s way better than it was. We still need to keep moving forward, but don’t take our gains for granted.

123

I think it does in fact minimize it - how do you imagine it happens without some level of force? I’m in private and fooling around with some guy, He wants to go further than I do. I say no. Then what happens ? Maybe he stops, and then it’s all good, no rape. Maybe he doesn’t. Maybe he pushes me down so I’m laying on my back. He gets on top of me. He jams his knee between my legs. He pulls off my pants or lifts my skirt- or maybe I’m undressed already. I’m 5 feet tall and 100 lbs. He’s 5’6" and 150 lbs. How do I get him off me? Hasn’t he used force, even if that force is just his body weight?

I have been unable to find any good statistics regarding the use of weapons in stranger rapes - but I assure you, I have read enough police reports and pre-sentence investigations to know that not all stranger rapes involve weapons. The disparity in size and strength is often enough.

I want to point out to you that “date rape” is just a subset of “acquaintance rape” - just because the rapist is known to the victim doesn’t mean they were on a date. It could be a neighbor, a coworker or anyone else the victim knows. And that much of the reason the term “date rape” came into existence was because people previously didn’t see it as rape at all - including the victims.

124

It will be more of a deterrent, yes.

Not the question I asked.

There’s nothing “proportionate” about a 5-year sentence for rape.

Thinking there can be “mitigating circumstances” for rape is rape culture in action.

Definitely, IME. The odds of it turning into rapes, plural, also shoot up.

It’s also statutory rape when it’s a 30 y.o. with that 16 y.o. I’m OK with dropping the “statutory” for R&J cases, if others are OK with calling the 30-16 case just plain “rape” in all circumstances.

Although 19 vs 16 is still too big a gap for my standards, classmates or no.

125

I find this attitude problematic. Carried to its logical extreme, it suggests survivors of rape would be better off dead. I would not want a survivor of rape to internalize that. Some rapists may be worse than some murders and some rape survivors may wish they hadn’t, but I just can’t get on board with your assertion.

126

If that’s why people are objecting to it, I can see why, as that extreme is not what I mean. But you’ve also given me a better way of saying what I do mean:

OK. I’ll concede rape isn’t worse than murder, if my interlocutors concede rapists (as a group) are worse than murderers (as a group).

127

How should we determine that? Even on an individual level—never mind for now as a group—how should we decide whether Rapist A is better or worse than Murderer B?

Motive? Mens rea? Level of self-awareness?

128

The other problem with making the penalty for rape worse than the penalty for murder is that killing the victim afterwards becomes advantageous to the rapist.

129

No, we need (as a society) to start thinking of this at the group level.

Rapists are more pervasive across all levels of society, are far more likely to be repeat offenders, are more of a global problem (lots of places that aren’t high-murder are still quite bad rape-wise), etc. Rapists make the world worse to a degree murderers don’t (I’m not including political violence & wars under murder, here).

130

Yeah, still don’t know about that. Certainly society has (or societies have) a problem with enabling rape through a number of factors, but then that seems to say more about how society views rape than how you or I should view rapists as individuals or a group relative to murderers. I mean, if murderers could get away with murder just by offering explanations of “Sure she’s dead and I killed her, but it wasn’t murder. She asked me to shoot her dead and my word alone ought to be good enough to establish that,” or “Sure she’s dead, I killed her, and she pleaded with me to stop, but it wasn’t murder. As you can see, I was very careful not to leave any marks when smothering her to death,” then I think we’d live in an even shittier world than the one we do now where that kind of shit still flies (or in living memory did fly, even in the US) with rapists.

Which, again, is a problem. But says more about the problems of society re: rape than it does about the relative virtue of rapists versus murderers.

Perhaps it would be better to say that the problem of society enabling rapists is, in practice and application, much greater than the problem of society enabling murderers. Although then again, we do have the second amendment in the US…

131

And I’m saying one tine of a multi-pronged approach to the problem is not being lenient on the (in reality, far too tiny a percentage of) rapists we do manage to convict.

132

I think the discussion of this issue is greatly complicated, and perhaps confused, by the practice of regarding underage sexual offences as a species of rape (“statutory rape”). This encourages a focus on the isssue of consent, of belief about consent, and relies on legal fictions like “a person under X age cannot consent” when we all know from our own experience that they can and sometimes do consent with enthusiasm.

At common law underage sex was not a species of rape, and the rationale for criminalising it had nothing to do with presumptions about who could and could not consent to sex. Consent was simply irrelevant. As we’ve already noted in the thread, at common law the age of consent was typically much lower than today - age 12 or 14, depending on jurisdiction and gender - and, at the time, this tended to align reasonably closely with the age of puberty. So, basically, what was prohibited was sex with someone who was not physically sexually mature, and the rationale had nothing to do with consent and everything to do with the inappropriateness or perversity of sex in that circumstance and the harm that it could inflect.

Right. When the age of consent was raised in the modern era - mostly during the twentieth century - this wasn’t based on any insight into whether teenagers could meaningfully consent or not, so much as on insight into the harms resulting from premature sexualisation. There was a growing awareness of emotional damage, and also as society became wealthier the economic disadvantage associated with single motherhood, and even the economic disadvantage resulting from impaired marriageability, in societies where virginity was valued, became more pronounced.

The recategorisation of the offence as a species of rape, which I think is largely a US thing, may simply have reflected the influence of puritanism in US culture. Rape was already a serious offence, and if other sexual offences were to be made seem suitably awful, catogorising them as rape certainly sent that signal. But it also has the effect of infantilising teenagers, particularly teenage girls, and produces bizarre outcomes like a boy of 16 being old enough to enlist in the army (and thereby risk serious injury and death) but a girl of the same age not being able to consent to sex (and thereby risk pregnancy).

In modern conditions the justification for the offence is not so much a presumption that a teenager cannot meaningfully consent so much as a belief that premature sexual activity is risky/harmful, especially where the relationship is not one of equality, even where consent is enthusiastic, and so the justification is the protection of young people from their own immaturity and from the selfish and predatory behaviour of others, rather than any kind of meaningful analogy with rape.

Things like “Romeo and Juliet” exceptions make more sense in this context. Teenagers having sex with one another may be seen as acceptable, or as undesirable but not best addresed through tghe criminal law in the way that a relationship between a teenager and a much older person would be. But the difference is not in the nature of the young person’s consent; it’s in the nature of the relationship.

133

Exactly.

And i wasn’t raped because i was large and strong for a woman, and he was small and weak for a man, and so he failed to force me.

I didn’t think it would be controversial to point out that date rape typically involves force. I thought it would be glaringly obvious.

134

Yes, sorry, i missed that swypo. I’m going to abuse my mod powers and fix that, since it’s confusing.

135

Depending on the circumstances there might be.

No it isn’t.
There is always the potential for mitigating circumstances in every crime, rape included. I don’t want a justice system that does not and cannot take that into consideration.
A move to your style of “justice” is a move to authoritarianism, a consideration of the factors involved in each criminal incident is not evidence of support for the “culture” of that crime.

And by your twisted logic that 19 year old is worse than a murderer and deserves the harshest penalty the law will allow and the facts of the case do not matter at all.
'There is nothing particularly remarkable nor inherently harmful about such a consensual relationship and nothing is gained by taking a hard line. Condemming the 19 year old to life? when both entered into it voluntarily? when no violence was involved? when no coercian was involved? when a stable and respectful relationship is obvious? You still think there are no mitigating factors in any prosecution and conviction of “rape”.

136

It is not. At least, it’s rape here in South Africa too. The entire sexual offences legislation was given a substantial overall, a process completed as recently as 2016, precisely because common law was deemed inadequate (for instance, under our old laws, only women could be raped).

Note that the law explicitly allows that teenagers can consent, but nonetheless criminalizes it (which is why I’ve used the term “meaningfully consent” earlier in the thread)

The relevant portion of the amended Act:

15 Acts of consensual sexual penetration with certain children (statutory rape)

(1) A person (‘A’) who commits an act of sexual penetration with a child (‘B’) who is
12 years of age or older but under the age of 16 years is, despite the consent of B to
the commission of such an act, guilty of the offence of having committed an act of
consensual sexual penetration with a child, unless A, at the time of the alleged
commission of such an act, was-
(a) 12 years of age or older but under the age of 16 years; or
(b) either 16 or 17 years of age and the age difference between A and B was not
more than two years.

I’m generally on board with my country’s framework for this, even though I have different ideal values for some specifics like minimum age and allowable age difference.

137

Please, do give specifics for these “circumstances”

Rape, by its nature, doesn’t allow for mitigating circumstances. “I was drunk” is no excuse. “I was facing peer pressure” is no excuse. “She showed me a fake ID” is no excuse. “I really wanted to” is definitely not an excuse. Even “they held a gun to my head” is IMHO no excuse - they should have taken the bullet.

So, that’s a “no” on my offer, then…

Yes, there is. 16 y.o.s are not remotely at the same level of maturity as 19 y.o.s, their class grade notwithstanding. And it would certainly be remarkable here, because it already would be illegal.

138

I gave you specifics in the post you’ve replied to regarding a 19 year old and a 16 year old…

both entered into it voluntarily? when no violence was involved? when no coercion was involved? when a stable and respectful relationship is obvious?

To me that doesn’t even rise to the level of requiring prison at all let alone 5 years, let alone your own requirement of full life and no release.

No, you’ve just asserted this and I’m not convinced. There is nothing magical about a rape conviction and sentencing that makes it immune from considerations of mitigating circumstances. No crime is nor should be.

Is this the offer you made?

Because I’ve made no distinction between the two terms, call them all “rape” in the same way if you wish. It isn’t the terminology that bothers me, it is the insistence that all acts and all convictions under that term are necessarily all equal, that mitigating factors are not possible and that ultimately all deserve the harshest sentences possible.

Then I can only assume you’ve never been either 16 or 19 and have never interacted with them to any extent. It is trivially true that some 16 year olds are far more mature and capable of reasoned decision making than some 19 year olds.
Can they enter into a mutually beneficial sexual relationship? absolutely. They can and many, many do. I see no benefit to society in jailing a 19 year old involved in such a relationship for life and never releasing them.

139

Those weren’t the kind of rapes where there was a 5 year sentence I was referencing…

Not trying to convince you, just giving my opinion.

Yes, I magically sprang from the head of Zeus aged 21 :roll_eyes: And I definitely don’t have a teenager daughter exactly in that age range :roll_eyes: :roll_eyes:

How many teenage kids do you have, since you’re so keen to personalize this?

140

Well you didn’t reference them nor cite them in your initial comment. If you said that a 5 year sentence for rape was not proportionate …and then gave the specifics of that particular situation, then I may well agree that it wasn’t proportionate.
That’s the thing with looking at the individual cases, it works both ways.
I can easily imagine circumstances where the 16/19 case was not deserving of prosecution at all, and also circumstances where a life sentence was deserved.

I have two, 14 and 16. This isn’t an academic exercise for me nor my wife, such conversations have taken place. My daughter is 16 and, before you ask, no I wouldn’t automatically be shocked or concerned if she was in a sexual relationship with a 19 year old. I certainly wouldn’t assume that they needed to be locked up for life.
Both my wife and I were sexually involved with other people in our teenage years that were very similar to the scenario you give, many friends of ours too. Nothing particularly shocking about it and nothing worthy of life sentences in jail.