March 13, 2012
Christopher & Christopher on the Paradox of Statutory Rape
Russell Christopher and Kathryn Hope Christopher (University of Tulsa College of Law and affiliation not provided to SSRN) have posted The Paradox of Statutory Rape (Indiana Law Journal, Vol. 87, No. 2, p. 505, 2012) on SSRN. Here is the abstract:
What once protected only virginal girls under the age of ten now also protects sexually aggressive males under the age of eighteen. While thirteenth-century statutory rape law had little reason to address the unthinkable possibility of chaste nine-year-old girls raping adult men, twenty-first-century statutory rape law has failed to address the modern reality of distinctly unchaste seventeen-year-old males raping adult women. Despite dramatically expanding statutory rape's protected class, the minimalist thirteenth-century conception of the offense remains largely unchanged -- intercourse with a juvenile. Overlooked is the new effect of this centuries-old offense -- a sexually aggressive seventeen-year-old raping an adult now exposes the adult rape victim to statutory rape liability. By being raped, the adult rape victim satisfies the minimal elements of the offense, lacks any defenses, and thereby commits statutory rape of her juvenile rapist. Therefore, the offense of statutory rape criminalizes being raped; that is, it criminalizes being the victim of rape. Paradoxically, while the offense of rape prohibits committing rape, the offense of statutory rape prohibits being raped. What the law of rape seeks to protect us from -- being raped -- the law of statutory rape punishes us for.
March 13, 2012 | Permalink
I agree with the position that the statutes should be cleaned up out of recognition of the author's point that the "no defenses" statutes do criminalize being a rape victim (even if prosecutors don't charge them). But in the worst examples of prosecutorial overreach cited in the article, such a clean-up wouldn't have prevented prosecution.
Posted by: Aaron | Mar 13, 2012 8:22:19 PM