Age of Consent: Protector of Lolitas or Outdated and Inaccessible Legislation

by Maddie Nation

A dark night is suddenly illuminated by red, white and blue lights: the perfect teenage romance foiled by the police. Steamy windows once created by the pants of desire are now fogged by fear. After a brief back-and-forth and the exchange of IDs, the police begin to manhandle a male perpetrator. A sixteen-year old boy is arrested for having sex with his fifteen-year old girlfriend. Despite the girl’s insistence of consent and the couple’s proximity in age, the boy will face statutory rape charges with potential jail time and a lifetime on the sexual offender’s list. The hormonal actions of a boy too young to vote, drink or sign his own field trip forms are no match for today’s age of consent laws.

Tyler, The Creator’s song, “Fucking Young/Perfect,” is a lament over love with a younger partner and the possible legal consequences:

There go the police man (knocking at my door) / Do I leave out the back and (grab my wallet and coat) / or do I answer real confused like (I don’t know) / Now me and she held hands (and we danced nothing more) / she kissed my hand a couple times (Facetime when we’re bored) / … A six year (Difference) is a ten year (Sentence).

In Tyler’s home state of California, the legal age of consent is eighteen. If we assume this song is based on personal experience—Tyler was 23 when it came out—then the object of his desires would be a not so juvenile 17. Age of consent laws invoke images of a Lolita-type victim with an older, predatory male preying on her innocence, but age of consent laws are often used to prosecute teenagers for having sex with other, younger teenagers. Although age of consent laws have a mixed historical basis in the rise of industrialism and first wave American feminism, modern-day age of consent laws are confusing and restrict teenagers from engaging in natural behaviors, often resulting in lifelong consequences.

Age of consent is the legal age at which a person can agree to sexual activities with another person (Drobac). There are various nuances to how these laws are shaped by state including age, sexuality, and the nature of the sexual act. The age at which a minor can legally consent to sex varies from fourteen to eighteen in the United States, and infringement on these laws carry different legal consequences. In many states, the difference between the age of consent and the age of minority affect how these laws are prosecuted. Age of majority is the age at which a person can be held legally responsible for all their actions under the law. If the perpetrator falls between the age of consent and the age of majority, they are likely to receive a reduced prison sentence. Most commonly, breaking age of consent laws results in a statutory rape charge, which is a felony and carries 10 to 20 years in prison and requires placement on the sexual offender register (“Romeo and Juliet Law Explained”). The article “Age of Consent” found in the Opposing Viewpoints Online Collection explores the origin and present-day effects of the sexual offender register. The sexual offender list, created after a string of sexual abuse crimes in the late twentieth century, is intended to alert neighbors of sexual predators living in their community. According to the Juvenile Law Center, those who are convicted to a lifetime on the list as teenagers are condemned more than adult offenders:

They would have been 95 to 99 percent more likely to become productive members of society but are, instead, branded as sex offenders, severely hampering their ability to lead normal, productive lives. Registration hampers education, employment, social standing, relationships, and emotional stability. (“Age of Consent”)

The harsh realities of these prison sentences and registration on sex offender lists carry consequences that follow perpetrators for the rest of their lives. This type of penalty did not always exist in the United States for sexual acts with a minor; it was only with major changes in lifestyle in the 1850s (“Age of Consent”) that these laws affected the lives of teenagers.

Industrialization and first wave feminism resulted in the major increase in age of consent laws from ten years old and under to ages fourteen through eighteen. Mary Ellen Odem, in her landmark work, “Protofeminism and Beyond,” outlines the many changes to the issues of consent over time. The initial purpose of age of sexual consent laws was to create a more effective way of prosecuting older adult, male perpetrators for sexual assault of children. Until 1885 the age of consent in the United States ranged from seven to twelve. Odem argues that the modern standard of ages fourteen to eighteen came from a movement in the second half of the nineteenth century by the Woman’s Christian Temperance Union (WCTU) to counter the strong urbanization and increase in casual dating between young men and women that came with city life. The WCTU essentially pushed for a rise in the age of consent as a form of legislatively enforced abstinence. According to Odem, feminist supporters of an increase both in the age of consent and penalties in violations hoped to challenge the subordination of women and prevent the preying on vulnerable young females. Those who opposed the increase in age of consent laws in this time period spoke about the young, deviant temptress that would be able to blackmail the older gentleman that she seduced with legal repercussions. While Odem points out that most age of consent laws did not reach the current age limits until the 1920s, she maintains that it was viewed as a victory for both the WCTU and feminists, despite their differing motivations. Age of consent laws came about for a variety of reasons, none of which take into account the current state of affairs in US high schools and the wide acceptance of underage sex.

Initially created in part to counter a new trend of sexual intercourse between youth in cities, the complex age of consent legislation does not dissuade teenagers from having underage sex. According to the Center for Disease Control, in 2013, 47% of the high-school students interviewed had engaged in sex at some point (“Sexual Risk Behaviors”). The variation and stipulations of age of consent laws across the country make them inaccessible and confusing to teenagers. In ABC’s documentary, “Age of Consent” several teenagers are interviewed and not a single one can state the age of consent in their state or the legal repercussions. Obvious issues arise when a huge population is engaging in an illegal activity they are not aware is illegal. According to Peter Tatchell’s article, “Don’t Criminalize Young Sex” age of consent laws can prevent teenagers from receiving comprehensive sexual education and birth control, while scaring them away from asking questions and engaging in proper discussion with authority figures about sexual activity. While age of consent laws were initially passed to protect young girls from sexual assault, the abstinence campaign of the WCTU in the late nineteenth century and intensification of predator laws following a stream of crimes in the 1990s have created an ineffective legal system for teenagers participating in consensual sexual activity. According to Georgia State Senator Towery, the increasing penalties for statutory rape law in his state, “was never intended to put kids in jail for oral sex” (“Article Update”). Instead, the legislation was meant to protect children and make consequences severe for child predators. Unfortunately, modern legislation does not reflect that intention in an effective way.

While court cases reveal an evolved look at minor consent in the US, the issue of minors close in age is still not fully addressed. Jennifer Ann Drobac explores the dangerous precedent of confusing sexually active minors for adults in California and United States Supreme Court cases in her article, “Wake Up and Smell the Starbucks Coffee.” One such case in California, Tobias v. the People, indicates the changing nature of age of consent laws in the United States. In this case, a minor willingly consented to an incestuous relationship with an older adult. The court eventually conceded that minors are able to assent to sexual activity, a deviation the court made from the legal definition of full consent that Drobac describes as the ablilty to indicate willing participation without knowledge of legal repercussions. Drobac is quick to point out that this opposes all previous ruling in cases of adult sex with minors and grants some amount of consent for minors under the age of consent. Additionally, the Associated Press explores the case of Genarlow Wilson, a 17-year-old sentenced to prison for 10 years after receiving consensual oral sex from a 15-year-old at a party, in a New York Times article, “2 Others Freed in Georgia Teenage Sex Case.” Wilson was released early by the Georgia Supreme Court, which called the original ruling “cruel and unusual punishment.” In the year following, the legislative body of Georgia effected a change in the statutory rape law that allows age of consent crimes to be a misdemeanor in cases where the age is difference is less than four years. Despite both these rulings, individual court cases in states across the country will not be able to address the holistic trend of disjointed and ineffective age of consent legislation in any type of efficient way. One way to fully address the failures of age of consent laws may be to pass legislation that mirrors the Romeo and Juliet clauses in all states, to clarify laws already in place, and educate youth on the legal repercussion of underage sexual activities. Romeo and Juliet clauses already exist in many states, but widespread implementation of these laws will prevent children serving extended prison time for what is regarded as a widespread and natural practice.

Romeo and Juliet clauses allow for consensual sex between two individuals under the age of 19 to be considered a misdemeanor rather than a felony if the participants are within four years of age (Sherman). In addition, the older child will not be placed on the sexual offender registry if charged (Block). Several states already have this law in place, but passage does not usually occur until a child serves prison time, as in the case of Genarlow Wilson (Associated Press). Widespread implementation would prevent this type of case from having to occur in order to update antiquated laws. The legal repercussions of underage sex, tailored to the individual needs of each state, could be added into public high schools’ mandatory health programs. As Locke alludes to in his work The Second Treatises of Government, true democracy would not allow a person to be charged for a crime they committed without knowing it was a crime.

Overall, while the majority public would see nothing criminal about the exchange between the two minors in the car mentioned earlier in the piece, many may take issue with the six-year difference between Tyler, the Creator and his lover and certainly many would find offense with sex between a child and a middle-age adult. As the law currently stands in many states, the three cases would be prosecuted the same and face similar repercussions. All would be serving a minimum of ten years with mandatory registry on the sexual offenders list. Rather than protecting children and young adults, as was the intention when the laws were first passed, a majority of the current legislation criminalizes youth for having sex with their peers. The implementation of Romeo and Juliet clauses in all states would be an effective solution to protect teenagers from serving prison time for indulging in their hormonal urges.

Works Cited

“Age of Consent.” Opposing Viewpoints Online Collection. Detroit: Gale, 2015. Opposing Viewpoints in Context. Web. 29 Feb. 2016.

The Age of Consent: Sex and the American Legal SystemFilms On Demand. Films Media Group, 2007. Web. 3 Mar. 2016.

“Article Update.” Annals of the American Psychotherapy Association10.3 (2007): 23. Academic OneFile. Web. 2 Mar. 2016.

Associated Press. “2 Others Freed in Georgia Teenage Sex Case.” The New York Times. The New York Times, 22 Dec. 2007. Web. 02 Mar. 2016.

Block, Bruce Alan. “Michigan Sex Crimes.” Bruce Alan Block Attorney at Law. N.p., 2012. Web. 03 Mar. 2016.

Creator, Tyler the. “Fucking Young/Perfect.” Cherry Bomb. 2015. Google Play Music.

Drobac, Jennifer Ann. “Wake Up and Smell the Starbucks Coffee: How Doe v Starbucks Confirms the Ed of the “Age of Consent” in California and Perhaps Beyond.” Boston College Journal of Law & Social Justice 33.1 (2013): n. pag. Law Journals at Digital Commons. Web. 2 Mar. 2016.

Odem, Mary E. Delinquent Daughters: Protecting and Policing Adolescent Female Sexuality in the United States, 1885-1920. Chapel Hill: U of North Carolina, 1995. Print.

“Sexual Risk Behaviors: HIV, STD, & Teen Pregnancy Prevention.” Centers for Disease Control and Prevention. Centers for Disease Control and Prevention, 16 Feb. 2016. Web. 29 Feb. 2016.

Sherman, Megan. “Sixteen, Sexting and a Sex Offender.” BU Journal of Science and Technology 17 (2010): n. pag. JSTOR [JSTOR]. Web. 3 Mar. 2016.

Tatchell, Peter. “Don’t Criminalise Young Sex.” The Guardian. Guardian News and Media, 24 Sept. 2009. Web. 29 Feb. 2016.