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The Continuing Criminalization of Teen Sex

From: Best Sex Writing 2012: The State of Today's Sexual Culture

Sometimes it seems as if we live in a world that is getting more fearful about teens by the day. But while the specific concerns may be new, targeting youth really isn’t. In fact, at least since the dawn of recorded history, adolescents have caused adults a fair amount of stress, even as the sources of that stress have changed from generation to generation. Today, people seem to be worried about sexting and self-injury, teen moms and bi-curiosity. A few years back, it was school shootings, the oral sex epidemic, and methamphetamine. When I was growing up in the late 80s and early 90s, AIDS was on everyone’s mind, and the panic over heavy metal (does listening to it lead to Satanism? Murder? Suicide? Too much black eye make-up?) was just calming down. Ten years earlier alarm bells had been raised about young runaways. Before that it was hippies, pot-heads and free love. That had followed fears about hoodlums, the homosexual menace and teen marriage, which had only appeared after anxiety about flappers and girls who wanted to ride bicycles in short new haircuts. Indeed, adult nervousness about teens has always run the gambit. But while we fret over just about everything, the idea of minors having sex seems to elicit a unique brand of paranoia, and these days this paranoia has convinced a surprising number of people that an ever expanding list of sexual experiences should actually be prosecutable offenses when they involve minors.

This view is a demonstrated shift from the recent past. When I was in high school twenty years ago, most kids weren’t worried that the long arm of the law would get involved in their highly personal, and obviously juvenile, sexual encounters (though black boys who dated white girls, and gay boys, have always had to look over their shoulders). And usually, this was for the best. Personally, I'm pretty sure that my rocky road to adulthood would not have been any smoother had the authorities discovered the revealing Polaroids that my 14-year-old girlfriends and I took of ourselves at a sleepover. Or had my 17-year-old boyfriend (a fellow who, if Facebook is to be believed, is now a happily married father of two) been charged with the crime of statutory rape when we had sex the following year. But things have changed over the past two decades, and we are currently living in a world with a legal system that can lump together pedophiles and two teenagers having sex, and which can treat kids who text naked pictures of themselves to a classmate the same way it treats child pornographers.

This change has occurred for a few reasons. One is that we are at a crossroads where old laws are meeting new technology with sometimes catastrophic collisions. Another is that over the past fifteen years there has been an increase in the enforcement of statutory rape laws. These are laws that ban someone over the age-of-consent (which is different in every state) from having sex with someone under the age-of-consent. It is usually understood that in cases of statutory rape, a teen has agreed to have sex, but this agreement isn’t considered valid since juveniles are regarded as too young to ever make such a decision. Statutory rape is different than child molestation, which typically describes an adult abusing a pre-pubescent child. It is also legally different from sexual assault or “forcible” rape. The reason the word rape is used in this situation is because it is assumed that pressure or coercion must be involved when there is a difference in age between sex partners. To be sure, statutory rape laws can be an important tool in preventing sexual manipulation of teens by adults. But they can also punish kids involved in non-coercive situations. Say; a teen over the age-of-consent who has sex with a peer who is under it.

Today, most states set this age between sixteen and eighteen. This is a lot higher than it was a century ago when ten or twelve was the norm (though in the case of Delaware, it was seven!). Moral reformers of the day, already fighting for temperance, suffrage and social purity, successfully advocated to raise the age, and by the 1920s, the age-of-consent for heterosexual sex was increased in almost all fifty states. But while they have been on the books for well over a hundred years, prohibitions against statutory rape began to be implemented more frequently in the late 1990's. Oddly, this was due to the passage of the 1996 Welfare Reforms Act, which was designed to reduce the number of people receiving welfare payments. One way the bill sought to do so was by decreasing the number of “welfare moms” —basically single women with children who received social assistance. At the time, these women were a big target, often finding themselves blamed for draining welfare funds and cheating the system. In 1993, President Bill Clinton even championed the Welfare Reforms Act with the claim that reducing welfare benefits, “Would be some incentive for people not to have dependent children out of wedlock.” It was in this climate that a study emerged showing that the majority of teen moms were not having babies with the boys from their geometry class. Rather, the research demonstrated, it was men in their twenties who were most likely to blame for underage pregnancies. So in addition to all its other money saving strategies, the Welfare Reforms Act encouraged states to, “aggressively enforce statutory rape laws,” as a way to prevent the young single mothers it believed were draining the system. This aggressive enforcement has remained in many places long after the hysteria over welfare cheats has died down.

One unintended result of the increased prosecutions has been the criminalizing of teens who most people wouldn’t label sexual abusers. Take Genarlow Wilson, for example. Wilson served three years in a Georgia prison after a conviction stemming from a 2005 New Year’s Eve party where the then 17-year-old boy received oral sex from a 15-year-old girl. Another kid took a picture of the act, that kids’s parents found the camera, the police were notified, and Wilson was arrested. Neither the girl in the photos, nor her parents, wanted to press charges. And despite the fact that Wilson was only two years older than her, in Georgia, he was above the age of consent and she was below it. At the time, Georgia had a mandatory minimum sentence of ten years for this crime. So that's what he got—ten years in jail for getting a blow job. A year into his sentence, the law was changed to make the maximum penalty in this situation a still pretty serious twelve months in jail. Even so, it took another two years for a judge to allow Wilson’s release, and ultimately, the boy was locked up longer than many serious felons. Photographic proof is, of course, far from the only thing that can result in a teen facing a statutory rape charge. Charges often arise after parents notify the police about an incident, which leads to law enforcement that relates to on individual parental anger. Arrests can also come about as the result of state laws mandating that doctors, therapists, teachers and even parents, report any teen sexual activity that they get wind of.

One boy who found himself shouldering the sex offender label as a result of this situation was a 16-year-old from Iowa named, Ricky Blackman. Blackman became known to the authorities after a 13-year-old girl he had met at a club for teens told her social worker that the two had had consensual sex. Because he was over the age-of-consent in that state and the girl was under it, Blackman was charged and convicted as a sex offender. This status meant that the boy was removed from his high school and prohibited from being in the presence of children other than his younger brother. He couldn’t go near schools, daycare centers or parks. His 11-year-old brother couldn't bring friends into their house. If his brother had been a girl, the teen would have been removed from his home altogether. To really drive home the point that Blackman was a danger to society, his driver’s license had the words “sex offender” stamped in red letter under his photo. As his mother, Mary Duval—whose tireless advocacy on his behalf eventually helped secure his release from the registry—told a Nevada news station sex offenders registries are “setting registered offenders up for failure.”

In other situations, teens find themselves in a legal bind once a high profile case captures the public’s attention. When in 2007, 16-year-old, Jamie Lynn Spears, then a teen actor starring in a Disney show, announced that she was pregnant by her 18-year-old boyfriend, Casey Aldridge, there was speculation that the boy would be charged with statutory rape. But no one could quite figure out where she actually got pregnant. Spears split her time between her home in Louisiana, which had one set of laws, and her TV set in California, which had another. It was soon discovered that Aldridge was not quite two years older than Spears. This meant he would not be charged in Louisiana, since it is one of eleven states which has close in age or “Romeo and Juliet” laws on the books. These laws ensure that if a couple is close in age, typically between two and three years apart—even if one person is over the age of consent—then the case is looked at differently than if a 25-year-old had sex with a 15-year-old. But in California, which doesn’t have such a legal loophole, he could have been charged. Nevertheless, prosecutors there declined to pursue the case.

That wasn’t the initial decision in another high profile situation. In September 2010, Massachusetts teens, Sean Mulveyhill, 17, and Austin Renaud, 18, were charged with statutory rape for having sex with a 15-year-old girl named Phoebe Prince. Prince had made national headlines after committing suicide in the face of relentless bullying, and there were calls for something to be done. Since Massachusetts had no anti-bullying laws, the D.A. went for something that was indeed illegal: statutory rape. This was done despite the fact that early on in the investigation it was determined that the girl took her life after suffering from endless harassment, and not as a result of her sexual relationships. And while the boys she slept with seemed to be a part of the social circle intent on tormenting her, they did not appear to be the bullying ringleaders. But in laying statutory rape charges in this way—with purposes not related to the harm done by the sexual encounter—the D.A. continued the national trend of inconsistently and haphazardly applying such laws. Ultimately, after a request from Prince’s family, the charges were dropped the following May. Still the fact that they were laid in the first place served as harsh warning for all teens.

The history of how statutory rape laws and age-of-consent rules have been applied to same sex couples is somewhat different. While lesbians were rarely considered by lawmakers, many states passed unique prohibitions against sex between men. Often these laws imposed far harsher penalties for same sex statutory rape cases than they did in comparable situations between opposite sex partners. One of the most famous victims of this disparity was a developmentally delayed teen named Matthew Limon. In 2000, Limon was living in a group home in Kansas. A week after his eighteenth birthday, the boy performed oral sex on another boy who was fourteen at the time. Both teens said the sex was consensual. But because Kansas had sodomy laws that applied only to gay men, and because Limon was legally an adult, while the other boy was a minor, he was convicted of sodomy and sentenced to seventeen years in jail. Had he performed oral sex on a 14-year-old girl, the maximum sentence would have been just fifteen months. Limon spent five and a half years in jail before finally being released in 2005. His freedom was not won due to the compassion of the system, but rather it was the byproduct of Lawrence vs. Texas, the 2003 case that saw the repeal of the federal sodomy prohibitions. Once those laws were overturned, Kansas and other states were forced to strike down laws that punished underage sex more severely if it involved “homosexual acts.”

Yet despite the fact that the federal sodomy laws were overturned, some states still try to criminalize gay sex. One way is by keeping the invalidated sodomy laws on the books in case the Supreme Court reverses its earlier decision. If that happened, then the state wouldn't have to try to pass new laws criminalizing sodomy. Additionally, eight states still have what are called crimes against nature laws. These laws make it a crime to have sex that is not considered "natural." So what isn't natural? Well, bestiality and necrophilia are usually on the list. But often, so are “homosexual” sex acts, anal sex, and occasionally even oral sex. Though most states understood that crimes against nature laws were invalidated by the passage of Lawrence vs. Texas, eight states did not. The result is that despite the fact that there are no longer laws that officially make it a crime to have sex with the same sex, some states still try to prosecute gay men and boys for doing so.

There are, of course, also situations where girls are labeled criminals for having sex. One of these, a Georgian, named, Wendy Whitaker, spent twelve years as a registered sex offender. The crime that got her there? Shortly after turning seventeen she performed one act of oral sex on a boy in her class. It was a few weeks before the boy’s sixteenth birthday and because she was legally over the age-of-consent and he was under it, Whitaker was convicted of sodomy and required to register as a sex offender. This designation, and all the accompanying residency, work and social restrictions, remained with her until September of 2010 when a federal lawsuit allowed a few select sex offenders, including Whitaker, to petition a Superior Court judge to gain their release from the registry. Needless to say, the most common reason that girls find themselves facing sex-related charges is not because they have had consensual sex with a younger teen. Rather, most young female sex offenders bear this label after being arrested for prostitution. Despite the fact that it is against the law for an adult to have sex with someone who is under the age-of-consent, if there is an exchange of money—even if it is money that a girl never sees because it is turned over to a pimp who is forcing her into the business—that girl can actually be considered a criminal. In some cases, for example, if she is convicted under a crime against nature law, a girl can find herself labeled a registered sex offender who receives a far stiffer sentence than her john.

Most supporters of anti-sex offender policies don't have minor prostitutes, let alone the average sexually active teen in mind. Many are simply shell-shocked by horrific tales of child molesters and are terrified that a predator may strike at random. Cases like that of Jaycee Lee Dugard, (who at eleven was kidnapped and kept captive for eighteen years by a known sex offender), Elizabeth Smart (who was abducted at fourteen and sexually assaulted by a religious fanatic over a period of many months), or Shawn Hornbeck, (who was snatched from his bicycle at eleven, also by a sexual predator, and held for five years before escaping), are so horrifying that many people simply want to be able to pass laws allowing us to just lock up the perpetrators and throw away the keys. But while such cases are gruesome, they really aren’t common. That’s hard to remember when the news media, politicians and TV shows like America's Most Wanted (which is just ending a 23-year run this year) and To Catch a Predator (which returned this February after a three-year hiatus) make it seem like there is danger lurking around every corner. Combine this with the fact that no criminals are more vilified than are sex offenders, and you can see how easy it has become to target anyone—no matter how young—who is involved in something called a sex crime. That’s true even if the illegality of the crime in question is, well, questionable.

It’s not that “real” sex offenders don’t exist, or that teens can’t commit brutal sex crimes. But the way our legal system treats sex does little to address the real risks. In reality, the majority of sex crimes against children are committed by an adult who the child knows. In fact, the U.S. Department of Justice reports that 73% of rape victims know their assailants. For kids under eighteen, that number rises to 93%! Additionally, a 2009 study conducted by the National Institute of Justice and Rutgers University, found that the ever increasing laws requiring sex offender registration, residency restrictions, and mandatory minimum sentencing for sex crimes have not made a difference in preventing future sex crimes against children. These are crimes that if New Hampshire's Crimes Against Children Research Center is to be believed, are actually decreasing. This think tank discovered that between 1993 and 2005, the rate of reported child sexual abuse fell 40%.

But studies like these are ignored by terrified community members and by lawmakers who want to look tough on crime. So, rather than fighting to revamp the system, many people argue for more and more regulations. When these pass, the pool of those affected increases, and legislation designed with hardened criminals in mind also gets applied to teens whose activities are significantly different. To complicate matters further, state sex offender laws can trump juvenile offender laws (which generally result in milder penalties, shorter sentences and sealed records). Moreover, our constitutional guarantee of states’ rights has resulted in numerous situations where a sexually active teen may be doing something legal in one part of the country, but criminal in another. It is little wonder, then, that minors have found themselves sitting in jail, or saddled with lifetime sexual offender status, for behaviors they honestly didn’t know were crimes.

Think about it in this way: if we assume that kids are too immature too consent to have sex or to view pornography, then how can we possibly turn around and say those same kids have to be held to adult standards when they post a naked picture of themselves online or have sex with a slightly younger peer? But in many cases that is exactly what our legal system does. Hypocrisy about teens and sex is nothing new. Continuing to legislate contradictions into law without batting an eye is something else.