The Female/Female Sexual Offense Case: What is the Moral of this Story?

There is a news story that came to my attention yesterday when one of my friends posted a plea on Facebook.  In case you have not read about it, a high school senior named Kaitlyn, who recently turned 18, was arrested for “lewd behavior” with her girlfriend, who was three years younger.  Both were under age when the relationship started.  (Note, I originally wrote that she had been arrested for statutory rape, but I have been corrected and have updated the article.)

The older girl was shocked when she was arrested and her entire future is in jeopardy.  She could go to jail and be listed as a “sexual predator” for life.

The parents of the arrested girl appealed to the public.  They say the two girls had “only one mutual consenting” experience and that the parents of their daughter’s former girlfriend only pressed charges because they are homophobic and they blame their daughter for “turning” their daughter gay.  Many LGBT activists have taken up her cause.

There is nothing magical about the age of 18 that makes someone suddenly responsible and ready to take on the world as an adult. We all know this. We’ve chosen that age for adulthood because we had to pick something. Historically, the justification for punishment for statutory rape is that children below a certain age are incapable of making significant decisions. Of course different people mature at different rates. “The laws originally were gender-specific: they punished a male who had sexual intercourse with a female not his wife under the age of consent. As of August 2000, all fifty states have gender-neutral statutory rape laws, in which either a male or female may be prosecuted for engaging in sexual activity with a male or female (who is not the perpetrator’s spouse) under the age of consent.” (See  Cocca, Carolyn E. Prosecuting Mrs. Robinson? Gender, Sexuality, and Statutory Rape Laws, Michigan Feminist Studies, University of Michigan Press. Cocca makes the argument that because of the marital exemption “age” is not really the operative category in these laws.)

Modern science has proven that in terms of brain development, bonding, relationships, and feelings are the focus of the years from the late teens to early twenties. Romances are more intense.  Love is more dramatic. Not until about the age of 25, and even 28 for boys, does “executive function” fully develop. That is to say: empathy, impulsivity judgment and learning from mistakes.

Of course no one thinks the age of consent should be 30.  Most people are married with a couple of kids by then.

Our law acknowledges that young people do have sex with each other.  The age of consent in most states is younger than the age of majority, the most common age is 16.  Under Florida law the age of consent is 18, there is an exception, however, that permits a person 23 years of age or younger to engage in legal sexual activity with a minor aged 16 or 17.  It seems safe to say, in any case,that few teenagers in the height of passion stop to check local statutes.

At age 15, the younger student in this case was not yet old enough to legally consent. So far all of the press has been focused on the Facebook pleas of Kaitlyn. So from this distance, it is impossible to judge whether the girls were well-matched in terms of emotional maturity or not.  With only one side telling the story, it is not fair to assume anything.

We may ask, as Kaitlyn’s family does, whether the family of the minor would have pressed charges if it has been a heterosexual encounter or whether they wanted to break up the relationship because they were outraged by the idea of a lesbian relationship.  The law doesn’t judge the parent’s motives in bringing the case.

Focusing too much on the homosexual aspect of this story risks losing sight of the big picture.  The same type of thing happens to 18 year old boys with younger girlfriends with some regularity.  (It doesn’t seem to happen often with 18 year old girls and 16 year old boyfriends. Cocca’s article touches on this subject.)

Whether or not the parents press charges surely depends on how they feel about the boyfriend or girlfriend.  If they approve of their 15 year old daughter’s 18 year old boyfriend, nothing bad will happen.

If they disapprove, they can press charges.  Boyfriend or child abuser. For the same activity, one teenager ends up with a warm memory of a high school romance.  The second faces prison and life-long stigma. There are a lot of reasons to be uncomfortable about this situation whether it is in a homosexual or heterosexual context, and that is what this story illustrates.

It seems likely that parents are more likely to object to their teen’s sexual partner if they perceive of that person as being not like them.  I did a cursory look for studies on this question, and I imagine a number of them must exist, but I am mostly speaking from intuition.  I did find references specifically to the impact of race in the Michelle Goodwin’s “Law’s Limits: Regulating Statutory Rape Law” in the Wisconsin Law Review. 

Parents will no doubt find less cause to object if they think of the boy as being “like them” and not “other,” for example someone of a different race, religion, socio-economic class or sexual orientation.  So there is a valid question of exactly what we are policing. The consequences of prosecutions are very high.

Goodwin questions the morality of “disparately and permanently (for life) brand children for engaging in activities that are otherwise legal for adults” and points out that there are “legal and extralegal burdens on minors that may exceed that of adult, convicted rapists.”  She refers to the case of a young man she identifies as J.L.

Absurdly, unlike most adult rapists convicted of first-degree sexual assault,J.L. will never qualify for removal from the sex offender registry list; beyond possible incarceration until age twenty-one, he is forever restricted from living near any schools, playgrounds, parks frequented by children, or daycare centers.J.L.’s conviction dooms him to bear the mark of sexual predator on websites, government documents,and possibly a future driver license.The “mark” will follow him throughout the United States, as most states require sexual predators relocating from other jurisdictions to register within three days of arrival...J.L.’s “mark” as a sexual predator burdens him with the same potent and socially stigmatic punishment as that of a convicted, middle-aged pedophile who rapes a minor.

It is scary to even talk about sexual predator registries in our culture. No one wants to seem as though they are sympathetic to “child predators.”  But labeling a person for life as deviant, outside of society and unable to be redeemed is a serious thing to do.  It is not something we should ever engage in lightly.

What Kaitlyn’s story reveals is that a lot of people are not entirely comfortable with this situation.  We understand, intuitively, that there is a difference between a person who has just turned 18 and is still in high school who has a younger girlfriend or boyfriend and an adult in authority who preys on young people. Yet our system does not always make a distinction when it comes to registering someone as a “sexual predator.”

If there are people who are incurable sexual predators, who we can predict with almost certainty that they will re-offend, then we need to protect ourselves against such people.  But in the process, we do not want to forever destroy the life of a person who made an error of judgment (or just happened to hook up with someone her parents didn’t like) when he or she was young.

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8 comments

  1. Thank you for articulating this so well. When a friend of mine posted the petition, I had these thoughts, but didn’t have time to do the research and thoughtful writing you have done. I do disagree that teenagers don’t think about the statutes. I think “16 will get you 20” is still a current remark; young men were certainly aware of the dangers in relationships with under-age women when I was a teenager (admittedly quite a while ago.)

  2. That is a good point. I suspect, though, that you would think about the statutes if you had a feeling that the age difference was a bit naughty whereas if you were thinking that you were peers as these girls allegedly did, you might not.

    1. That is one of the points that I think both of the academic articles I referenced made. I think the second article went into that in some detail, the gender assumptions in the laws and whether they correspond to the reality of teenage sexual behavior.

  3. Laura Lee — Kaitlyn Hunt wasn’t arrested for “statutory rape.” The charge was termed “lewd or lascivious battery” with a minor. I’m not a lawyer but the Florida law is online here:

    http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0800-0899/0800/Sections/0800.04.html

    “Lewd or lascivious battery” is defined as an act where a person “engages in sexual activity with a person 12 years of age or older but less than 16 years of age.” And “sexual activity” is defined as “the oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object.”

    This means an 18 year old woman dating a 15 year old woman could be charged with lewd or lascivious battery even though the activity might also meet the healthy sexual relationship guidelines that the Unitarian Universalists use in their Our Whole Lives program:

    ** consensual (both people consent)

    ** nonexploitative (equal in terms of power, neither person is pressuring or forcing the other into activities or behaviors)

    ** mutually pleasurable (both receive pleasure)

    ** safe (no or low risk of unintended pregnancy, sexually transmitted infections, and emotional pain)

    ** developmentally appropriate (appropriate to the age and maturity of persons involved)

    ** based on mutual expectations and caring

    ** respectful (including the values of honesty and keeping commitments made to others)

    If Ms. Hunt and her 15 year old partner were meeting the healthy sexual ethics requirements that we teach in our congregations, is this particular instance a crime with a victim or a victimless crime?

    Of course, any sexual relationship that can send one to jail could be considered unhealthy. But would that mean all same-sex sexuality was unhealthy before the US Supreme Court overturned state sodomy laws? In this instance, many of us considered the law to be unjust. Maybe the same is true for Kaitlyn and her girlfriend?

    I will agree that the Florida law as written was broken. And I’m guessing that whether this sort of crime is reported or not depends on how the parents of a youth might view the relationship.

  4. Thanks for the clarification. I think that what I wrote still stands, although some of the details about Florida law in this case are muddy. I was writing about the story from memory, but looking up articles on policing of sexual behavior of young people more broadly to put it in a wider context. I didn’t plan on naming the girl in the case, because I do have some concerns about how this kind of publicity might impact her, but not referring to her by name got too awkward.

    As I understand it, the consequences for Kaitlyn would be similar to what I described even though I incorrectly call it statutory rape in that the 18 year old could face jail time and be registered as a sexual offender. As I recall, she would be able to petition to get off the list at some point.

    In any case, my question was not whether the law was broken. It was whether the law should be applied or should criminalize what it does and how we’ve come to make these choices. So we are probably actually in agreement.

    Your point about relationships landing people in jail brought this to mind: I’ve actually been studying Lord Alfred Douglas and Oscar Wilde lately, and that relationship is often described as “unhealthy” and “dangerous.” Douglas is said to have “ruined” Wilde, when in fact it was society’s reaction and not the love that ruined them both. But I digress.

    The conflating of consensual sex between young adults and rape (which happens when young people convicted of sex across age lines are forced to register as sex offenders) does not reflect the reality of young people’s lives, and I suspect that many of the well-meaning people who created these laws were sexually active themselves during the teen years.

    I do want to be cautious here and say that there are cases in which a young person really is not mature enough, when the difference in power between two parties is troublesome. The problem is that it is not as straightforward as pointing to an age on a line. It’s a case where a one-size fits all solution really fits none. The law should probably be the last line of defense and other interventions should come first unless it is a truly dangerous situation.

    UUs are a minority. Not every young person goes through something like OWL. That is a shame, really, because it would be better if those boundaries were clearly taught rather than maintaining silence about sex, leaving young people to figure it out on their own, and then calling in the police to sort it all out. There is so much ideological difference about sexuality, though, that I fear such a thing could never be taught in public schools.

    I didn’t express an opinion as to whether what happened between the two girls was morally right or wrong, which is a different question than what is legally allowed, because I don’t feel I know enough to judge that.

    I only have Kaitlyn’s parent’s word that they were well matched in maturity and that the relationship was mutually consensual. Kaitlyn is innocent until proven guilty. So I give her the benefit of the doubt. But I don’t know actually what the younger girl thought or said happened, for all I know she told her parents that she didn’t want to do it and felt pressured, either because that is true or because she feared her parents’ reaction. (And she should not have to justify herself to the public if she doesn’t want to.) I would not like to rush to judgment simply because I suspect homophobia might be at play. It would be terrible to vilify the younger girl’s family (and by extension the younger girl) and then to find out that everything was not as it seemed. So if it seems I am equivocal, I am for that reason, out of fairness for all parties.

    I do think it is fair to ask if the public would give the same benefit of the doubt to an 18 year old man in this situation. If it were an 18 year old male and a 15 year old female and the parents of the boy made a similar plea– “it was consensual, the girl is young, but she’s really mature for her age, her parents are only filing charges because they don’t approve of our son (say because he is black or working class), this charge could ruin his whole life.”

    Do we feel the same way about it or do we harbor more suspicions about him?

    Come to think of it, if Kaitlyn were working class and not college bound, would we give her the same benefit of the doubt? (By “we” I don’t mean you, I mean in general culturally.)

    Asking these questions is not to diminish the situation this individual is in. Nor do I ask as a way of downplaying the role that homophobia probably plays in this case. I see this, rather, as an opportunity to ask an important question. Are we criminalizing the sexual behavior of young people out of legitimate fears about exploitation or are we in effect policing the boundaries of “us” and “not us?” (You can experiment with a boy, but not a girl! I’m calling the cops! That guy is not like us, I don’t trust him, I’m calling the cops!) I suspect when it comes down to it, it’s some messy combination of both and that we need to work hard to separate these two.

    There should be a Hippocratic oath about laws, don’t you think? First, do no harm.

  5. Laura Lee wrote:

    I do think it is fair to ask if the public would give the same benefit of the doubt to an 18 year old man in this situation. If it were an 18 year old male and a 15 year old female and the parents of the boy made a similar plea– “it was consensual, the girl is young, but she’s really mature for her age, her parents are only filing charges because they don’t approve of our son (say because he is black or working class), this charge could ruin his whole life.”

    Actually, we do a have a recent case that is pretty close to this — a 17 year old male and 15 year old female who had engaged in oral sex:

    http://en.wikipedia.org/wiki/Wilson_v._State_of_Georgia

    The Georgia law had a “Romeo and Juliet” exception for penile-vaginal intercourse but giving oral sex to a 15 year old and receiving oral sex from a 15 year old meant mandatory minimum 10 year sentence and lifetime registration as a sex offender.

    The Wilson case probably involved both racism and sexuality-negative cultural attitudes towards oral sex that were changing at the time of Mr.Wilson’s conviction. At the time of the conviction, there was plenty of outrage at the disproportionate penalty imposed on Mr. Wilson. The Georgia legislature changed the law after his conviction.

    The complex and sometimes ambiguous ethical questions about Kaitlyn’s case and Wilson v. State of Georgia were explored in Harmful to Minors: The Perils of Protecting Children From Sex by Judith Levine:

    http://en.wikipedia.org/wiki/Harmful_to_minors

    At the time when she wrote this book, Ms. Levine praised the statutory rape laws in the Netherlands that were in effect when she wrote her book:

    ** criminalized sex when the younger party was less than 12 years old

    ** sex when the younger party was between 12 and 16 was subject to greater scrutiny to ensure that it was consensual — inquiry done by a judge and other factors like parental outrage were not relevant according Ms. Levine — basically the adolescent could veto parental outrage

    ** sex when the younger party was over the age of 16 would be the same as other adult-adult sex in terms of consent.

    Ms. Levine’s take on this was that this law attempted to legislatively acknowledge that adolescents may or may not be empowered to make decisions about their sexuality and this is very situational. The Netherlands did change this law after Ms. Levine’s book came out in 2002 to make 16 years old the firm age boundary for consensual non-statutory rape sex. I don’t know if this legal change was due to problems with the law or other cultural factors in the Netherlands unrelated to the law.

    The book is an interesting read and Ms. Levine gives a shout out for the good comprehensive sexuality education work that Unitarian Universalists do with Our Whole Lives and the earlier About Your Sexuality program that we created in the late 60’s and early 70’s.

  6. That does sound quite reasonable. The Netherlands is an entirely different country though. We in the U.S. don’t pay much attention to things they do over there.

    Actually, in the U.S., culturally we tend not to like laws that allow for any judgment in their interpretation. We tend to think that if the same law is applied without exception to everyone it results in an outcome that is fair. We like “three strikes and you’re out” and so on. It takes all the messy human decision making out of things. In truth, if context is not taken into consideration the one size fits all approach is often a one size fits none. I am trying to recall the title of a book I read on this subject, but it eludes me right now.

    A lot of the same issues were at play in the Oscar Wilde case for “gross indecency with another male person” back in 1895. Even though both of the men were adults, Lord Alfred Douglas was about 23 I think when this happened and Wilde was around 40. Douglas’s father made a big show of protecting his innocent son from the terrible influence of the older man. Behind the scenes the court decided not to try to bring charges against Douglas because they believed he was a victim. Douglas was not allowed to testify because Wilde’s lawyer surmised that it could not help because any defense Douglas made of Wilde would only be seen as proof that he was completely under the influence of Wilde, the evil Svengali. In that case, of course, consent wasn’t an issue because it was simply illegal for two men to do anything sexual with each other. Which was important for society because…. That’s where I get a bit confused.

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