CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, November 5, 2019

Harduf on Statutory Rape

Asaf Harduf (Zefat Academic College) has posted Statutory is Not Rape: Reshaping the Criminalization of Underage Sex, and Beyond on SSRN. Here is the abstract:
Statutory rape is a unique form of rape, revolving around a certain age-dependent human group, and indifferent to victims' consent, suggesting that consent does not rule out criminalization.

This ancient offense had historically aimed to protect little girls' sexual chastity as parental propriety. Although this rationale is outdated and obsolete, the offense has survived. The battle against underage intercourse endures, relying on the age of victims or age disparities to base the assumption, that intercourse, even with consent, is nevertheless unwanted, causing teenagers physical and emotional harms.

When we carefully look at the modern attributed rationales of the offense, we see some unconvincing so-called harms, on the one hand, and incoherency of over-inclusiveness and under-inclusiveness, on the other hand. Age and numbers make legal enforcement, prosecution and conviction easy, as well as social condemnation. However, they also flatten the offense, over-criminalize, and focus our attention away from the main problem: preventing sexual exploitation.

The article proposes to reform statutory rape law, to better fit this rationale and negate over-criminalization, either by making exploitation an element of the offense, or by creating a unique defense, showing the absence of exploitation. What is really wrong in underage sex is not age or age disparity, but something else: abuse of power, lies and manipulation, disrespect and objectification.

This valuable normative lesson exceeds statutory rape. The article calls to further utilize the refined normative basis, to tackle other facets of sexual exploitation, far outside the realm of underage sex, and protect adults from offensive social norms and practices, that are currently uncovered by rape offenses.

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