Statutory Rape
Under Rhode Island law, statutory rape occurs if a defendant (at least 18-years old) has sex with a minor between 14 and 16-years old. R.I.G.L. § 11-37-6. There is currently no defense that the defendant reasonably believed the minor was old enough to consent. State v. Yanez, 716 A.2d 759 (R.I. 1998). That means that a teenager who, on the day of his 18th birthday, has sex with someone 15 years, 11 months, 3 weeks and 6 days old, the 18-year old will be subjected to up to five years in prison. That stays true, even if the girl looks, acts, and says that she is 16-years old. In fact, even if the girl blatantly lies about her age and shows a fake ID that says she is 16, the 18-year old will be guilty of a felony and labeled as a sex offender.
The idea behind the crime developed in 13th century England. During that time, the government believed that girls under a certain age were incapable of making decisions about sex. Id. at 763.
The question is whether that need for protecting a young girl’s innocence still justifies strict liability for her sexual partner. According to the Center for Disease Control, as of 2002, 13% of never-married teenaged girls were having sex before they turned 15-years old. See “Teenagers in the United States: Sexual Activity, Contraceptive Use, and Childbearing, 2002 A Fact Sheet for Series 23, Number 24,” available at http://www.cdc.gov/nchs/data/series/sr_23/sr23_024FactSheet.pdf. The percentage goes up to 30% for 15-17-year old girls. Id. What’s more is that, for a majority of sexually active teenaged girls, the first time the girl has sex, her partner is between 1 to 4 years older than her. Id.
Without condoning premarital sex involving girls under the age of 16, there seems to be little reason now-a-days to place criminal liability on 18 and 19-year old males for having sex with slightly younger females.
Can you think of a better way to protect young girls from the dangers of premarital sex? Do you think it’s time for the state to recognize a defense for men who are literally tricked into thinking their sexual partner is of age? Should the age of consent be lowered?
Update (11/21/09): Another sad Romeo and Juliet story
On 11/12/09, the New York Post reported the arrest of an 18-year old Belgian, Anthony Freson, who traveled literally thousands of miles to finally meet his online sweetheart. When he first started chatting with the girl from Trumbull, Connecticut seven months ago, she told him she was 18-years old.
A few weeks ago, they met at a train station in Connecticut, went to Manhattan and spent the night in a hotel room. Unfortunately, the girl was really only 14-years old, and her father was frantically trying to find out where his daughter was. The New York City Police ended up tracking the girl down using the signals from her cell phone, at which time they found a vibrator and condoms in the room.
The girl told the police that she lied to Freson about her age, and has explained to the NY Post that she is upset that Freson is going to jail. Unfortunately, that hasn’t stopped authorities from charging the 18-year old with kidnapping, sexual abuse and child endangerment.
While the girl’s father has acknowledged that his daughter “did something stupid,” he is still adamant that the young man should go to jail.
Do you think it’s fair that the young man is being so severely punished for believing the girl’s lie that she was of-age?
Update (2/21/10): Level III Sex Offender tries to start his life over at 20
Until recently, 20-year old Ricky Blackman had been living as a Level III sex offender in Oklahoma. For almost four years, he was unable to watch his younger brother’s football games; he was banned from attending high school (after being told he was considered a risk to the rest of the students); he was turned down for minimum-wage jobs after being told he was a liability; and was unable to enter the town’s public library. All because, when Ricky was 16 and living in Iowa, he had sex with his girlfriend (a 13-year old who told Ricky she was 15).
Even though the Iowa judge ordered his record expunged upon his successful completion of sex offender treatment, when Blackman moved to Oklahoma, he was required to register as a sex offender. It wasn’t until last November, when Oklahoma changed its sex offender laws to allow out-of-state expungements of certain sex crimes to be applicable in Oklahoma, that Blackman was removed from the state’s registry.
According to CNN.com, Blackman recalled being videotaped by his neighbor each time he went outside. Ricky’s mother, who is blind, told the CNN.com reporter that she finds comfort in the fact that the back door of the family’s single-wide trailer faces the forest, just in case her son needs to run from a “vigilante attack.”
It’s been four months since Ricky Blackman was officially removed from the sex offender registry, and he is still seen “cast[ing] furtive glances at each passing car and siz[ing] up every person entering [a building] as if to ensure no one [is] after him.” Ricky’s mother notes that her son tenses up when seeing children and shies away from girls his age, even if they approach him. According to Blackman, he still fears being blamed for every missing child or unidentified assailant, just because his name was on the registry. “I don’t want to go somewhere and cause a scene ’cause people may not know that I’m allowed to be there and get upset.”
Update (6/14/10): Successful Re-Classification
Last week, one of my clients received confirmation from SOCNU (the Rhode Island Sex Offender Community Notification Unit) that he has been re-classified as a Level I Sex Offender! This re-classification was a result of a successful appeal in Superior Court of the client’s initial classification as a Level II Sex Offender. The client’s one and only criminal conviction was of statutory rape (a case which involved the then-18-year old client having consensual sex with a 14-year old).
I consider this quite a victory, as this client never deserved to be classified as a Level II. If only Rhode Island’s current Sex Offender Registration and Notification scheme included exemptions for the registration requirements!
Update (posted 9/16/11): Texas Legislature Not Only Refuses to Implement the AWA, but Creates a “Romeo and Juliet” Exception
This is very encouraging news! This summer, the Texas Legislature not only refused to implement the Adam Walsh Act, but also enacted its own “Romeo and Juliet” exception to its registration and community notification laws.
Currently, the state allows a defendant to avoid prosecution for statutory rape if the “victim” and the defendant are no more than three-years apart in age. Unfortunately, that still means that “consensual” sex between a 19-year old defendant and a 15-year old “victim” would still equate to statutory rape and would most likely require lifetime sex offender registration for the offender.
In Texas SB 198, the Legislature amended its registration law by creating a procedure for a young defendant convicted of statutory rape to petition the court to be released from registration requirements by demonstrating that the defendant is not a violent or dangerous offender and indeed did have the “consent” of the “victim.” See the Senate’s Bill Analysis.
From a state that is very aggressive in its sentencing and its death penalty laws, this legislation is most impressive because it makes sense and allows for individual consideration for a crime that many believe is unfair to be charged with without the availability of a consent defense.
As of this year, Rhode Island does not even have a Romeo and Juliet exception to its statutory rape law, never mind an exemption to its registration requirements. Our state could learn a lesson from the sensibility of SB 198!
For more information about legal representation of those charged with sex crimes, please visit: http://katherinegodinlaw.com/areas-of-law/sex-crimes/
Katherine E. Godin, Esq.
The Law Office of Katherine Godin, Inc.
615 Jefferson Blvd.
Warwick, RI 02886
Phone: (401) 274-2423
Fax: (401) 489-7580
Email: kg@katherinegodinlaw.com
Website: http://www.katherinegodinlaw.com
Sex offenses, esp. those that harm children, are awful. I won’t preface future comments with this obvious reminder.
The label ‘sex offender’ carries a stigma like no other – long prison bids, lifetime registration and monitoring, and being confined to work and live in very restricted places. Simply put, we banish them from society. With sanctions like these, we can’t use a ‘one size fits all’ approach.
This law was passed to protect adults from preying on the undeveloped intelligence of our children – rape and child molestation, not this malum prohibitum type. So while it is a good goal to protect young girls from having sex, this law goes to far. Punishing another kid (the boy) as a sex offender because he had sex with his girlfriend (and they presumably had sex before he turned 18 and wasn’t criminal then) is too harsh. Similarly, where one was completely and reasonably fooled about the girl’s age, it’s unfair to strip them of defenses (it seems people charged with murders have more defenses available to them).
We’ve seen cases like this in many states, most notably in CT. and GA. These cases make me so angry and demonstrate that we (the collective we, that is) have lost our mind and enjoy putting people in prison for a long time. In the Georgia case, Genarlow Wilson had sex with his girlfriend – fellatio. No sexual intercourse. For this, the 17-year-old honor student was sentenced to 10 years without parole. Brilliant! Thankfully, there was a public uproar and Georgia quickly reevaluated its “Romeo and Juliet” laws (Wilson served 3 years and still has to register as a sex offender).
This law will ruin lives. Even more crushing, RI denies the older person to demonstrate that he truly and reasonably believed that the younger person was actually 18 years old or older. Other states allow the defendant to raise such defense, which makes sense. We need laws that differentiate dangerous sex offenders from willing participants. Here, one size does not fit all.
According to Northwestern law professors Russell and Kathryn Christopher, there is a defense for statutory rape that has not been tested by itself, but has been successfully tested in parts. It only works if the defendant clearly was plainly tricked into having sex with someone who lied about her/his age. If someone uses a fake ID to have sex with somebody, he is technically committing rape. The person below the age of consent has raped the adult. In some states, rape by fraud has been affirmed. I believe Massachusetts recently passed a rape by fraud deception law. In states with clear rape-by-fraud laws, the defense could be overwhelming because juveniles can be charged with rape of adults. An attorney may consider trying this.
In other states without explicit rape by fraud laws like Rhode Island, the defendant could still contend that he did not willingly consent to the sexual act performed even though the perpetrator might not be able to be charged with rape. Obviously, there are limitations to this defense, but if the defendant manages to make it clear that he explicitly only consented to acts with a girl over the age of consent, he might have a shot. (Note: I am not dispensing legal advice and am merely suggesting a possible scenario).