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.