The Constitutionality of Statutory Rape Laws
![handle is hein.journals/uclalr27 and id is 769 raw text is: THE CONSTITUTIONALITY OF STATUTORY
RAPE LAWS
The crime of statutory rape has traditionally been understood
as consensual intercourse with a female under a particular age.'
There are only two elements in the offense of statutory rape: the
age of the female and the act of sexual intercourse.2 Since the
male's age is not an element of the crime, traditional statutory
rape laws have failed to distinguish the consensual acts of peers
from the sexual exploitation of adolescent females by older men.3
Consent of the underage female is not a defense to statutory rape;
apparently she is conclusively presumed to be incapable of under-
standing the nature and consequences of sexual intercourse.4
1. See, e.g., 65 AM. JUR. 2d Rape § 15 (1972); R. PERKINS, CRIMINAL LAW 152-
71 (2d ed. 1969). In this Comment, the term statutory rape will refer only to gen-
der-based definitions of the crime unless otherwise specified. The term sexual inter-
course will refer only to heterosexual intercourse. The issues involved in protecting
young persons from homosexual advances are beyond the scope of this Comment.
2. Murphy v. State, 120 Ind. 115, 22 N.E. 106 (1889) (where female was under
the age of consent, it did not need to be alleged or proved that the intercourse was had
forcibly or against her will). Accord see, e.g., People v. Marks, 146 A.D. 11, 12, 130
N.Y.S. 524, 525 (1911); State v. Huntsman, 115 Utah 283, 204 P.2d 448 (1949).
3. See, e.g., People v. Atchison, 22 Cal. 3d 181, 583 P.2d 735, 148 Cal. Rptr. 881
(1978), in which the California Supreme Court noted that both the state's statutory
rape law protecting all females under 18, CAL. PENAL CODE § 261.5 (West Supp.
1980), and the statute protecting males and females under 14 from the lewd and las-
civious conduct of any person, CAL. PENAL CODE § 288 (West Supp. 1980), are di-
rected toward protecting the young from sexual exploitation. Unlike revised sex
offense statutes recently enacted in many states, see note 51 infra, neither California
statute requires an age differential between the perpetrator and the victim of sexual
exploitation. Yet, it has been found that persons who are convicted of nonforcible
sexual relations with youngsters between the ages of 12 and 15 may be classified as
either subculture offenders or near-peer offenders. Subculture offenders are
adults who belong to a portion of society which regards anyone past puberty as a
suitable sexual partner. Near-peer offenders are so close in age to their victims that
a sexual relationship is likely to be mutual rather than exploitative. P. GEBHARD, J.
GAGNON, W. POMEROY & C. CHRISTENSON, SEX OFFENDERS 102-03 (1965). See also
Slovenko, Statutory Rape, MEDICAL ASPECTS OF HUMAN SEXUALITY, March 1971, at
155: The 'victim' in statutory rape cases is often willing, if not seductive, while the
male may be equally young and ignorant of the law.
1 4. The presumption of incapacity to consent is discussed at notes 264-68 & ac-
companying text infra. Commentators have severely criticized this aspect of statutory
rape laws: [T]he law's refusal to heed the full consent of young girls, because of an
inflexible test of capacity to understand, seems unjustified. Protection of the 'pure
and naive' should be achieved without punishing many blameless men. Comment,
Forcible and Statutory Rape. An Exploration of the Operation and Objectives of the](ViewImageLocal?handle=hein.journals/uclalr27&div=30&collection=journals&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
The Constitutionality of Statutory Rape Laws
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most