American Bar A

Center on C

and the L

Advocating for the 

 Treatment o

Office for Victims of 

State Legi

HANDB

for

Statutory 

Issue

State Legi

HANDB

for

Statutory 

Issue

February 2
y 

Daniel Marcus

Acting Associate Attorney General

Laurie Robinson

Assistant Attorney General

Noël Brennan

Deputy Assistant Attorney General

Kathryn M. Turman

Director, Office for Victims of Crime

Office of Justice Programs

World Wide Web Home Page

www.ojp.usdoj.gov

Office for Victims of Crime

World Wide Web Home Page

www.ojp.usdoj.gov/ovc

For grant and funding information cont

U.S. Department of Justice Response Ce

1–800–421–6770

OVC Resource Center

1–800–627–6872

OVC Resource Center Home Page

www.ncjrs.org

The Office for Victims of Crime is a component of the 

Programs, which also includes the Bureau of Justice 

Bureau of Justice Statistics, the National Institute of 

Office of Juvenile Justice and Delinquency Prevention.

This handbook was prepared by the American Bar A

on Children and the Law under grant number 97–VF–G

by the Office for Victims of Crime, Office of Justic

Department of Justice. The opinions, findings, and conc

in this document are those of the author and do not nec

the official position or policies of the U.S. Department of 

NCJ 178238
State Legislato

HANDBOOK

for

Statutory Rap

Issues

Noy S. Davis

Jennifer Twombly

American Bar Association

Center on Children and the 

February 2000

Office for Victims of Crime

Advocating for the Fair 

 Treatment of Crime Victims
The Office for Victims of Crime has been 

funding to the American Bar Association (AB

Children and the Law to manage this project. 

done an excellent job reviewing current statu

and literature and interviewing professionals 

behalf of teenage statutory rape victims acros

resulting in this publication, State Legislators

Statutory Rape Issues. Through it, OVC hope

legislators develop effective and enforceable s

laws.

In recent years, prosecutors and service p

wide have reported troubling findings regardi

including increased occurrences and their tra

teens, teens’ inability to see themselves as vic

providers’ reluctance to report these crimes t

tors’ reluctance to prosecute these crimes, an

tance to convict the offenders. Many States a

these problems by reviewing and amending o

new ones.

Enactment of realistic, enforceable statuto

requires consideration and evaluation of man

lems and issues. OVC recognizes that legislat

may need information and guidance as they d

to amend existing laws or develop new ones. 

Handbook, OVC intends to raise relevant que

for thorough discussion and consideration wh

framework for developing legislation that mak

course with a minor a crime based on the mi

We at OVC hope that the information and 

found in this Handbook help those in State le

the welfare of victims in mind as they craft le

hoped that this collection of knowledge, expe

insights of many hardworking professionals in 
iv

py p 

statutory rape legislation.

Kathry

Office for Vic
OVC gratefully acknowledges Sharon G. E

Director and Coprincipal Investigator, and Ba

Coprincipal Investigator, of the American Bar 

Center on Children and the Law for their effo

this project. OVC also gratefully acknowledge

volunteer advisory committee—Cindy Nanett

Chase, Esq.; Scott Newman, Esq.; Commissio

Kerlikowske; Assistant Chief John Schaller; C

Jo Kolanda; Dominic Trunfio, Esq.; Kim Hunt

McCracken, Esq.; and Gael Strack, Esq.

OVC is grateful for the help and informati

tice and service professionals in Onondaga Co

Baltimore City, Maryland; and Alameda, San 

Clara Counties, California, where site visits w

These dedicated public servants allowed an u

into their workdays and the decisions they m

teenage victims of statutory rape. They showe

their commitment by accepting our intrusion 

to help other jurisdictions.

In addition, OVC gratefully acknowledges 

als with whom extensive telephone interview

in Maricopa County, Arizona; Marion County

County, Florida; Pontiac, Michigan; Clark Cou

Jefferson County, Kentucky.

Finally, OVC gratefully acknowledges the 

support of the project monitor, Olga Trujillo, 

Projects Division, at the Office for Victims of 
I. Introduction .............................................

II. Background .............................................

III. Findings From a Survey of State Legisl

IV. Context and Questions............................

V. Issues........................................................

VI. Conclusion...............................................

VII. Notes........................................................
The State Legislators’ Handbook for Statu

is designed to help State legislators develop e

enforceable statutory rape laws that can and 

prosecute offenders and prevent occurrences 

Handbook provides a framework for developi

legislation that would make sexual intercours

crime based on the age of the minor. Its purp

legislators and policymakers who are amendi

rape laws. While each State must determine w

this Handbook provides a framework for disc

ering the issues.

This Handbook begins with background in

description of what led to its development. N

are discussed, including raising the age of con

tials, pregnancy, reporting, and penalties. The

each issue are offered for legislators and polic

sider before drafting new legislation or amend

II. Background

Currently, all States have laws that prohib

course with persons under a certain age. Alth

referred to as “statutory rape” laws, the term 

found in criminal statutes. Rape, sexual assau

sexual intercourse are some of the more com

By whatever name, these laws have been the 

legislative interest. In the last few years, mor

have considered proposals to amend these law
2

Legislators

In 1997, under a cooperative agreement with 

Victims of Crime of the U.S. Department of Justic

can Bar Association (ABA) Center on Children an

surveyed all States regarding statutory rape legisl

considered within the last few years—from 1995 

This Handbook is based on that survey. In additio

staff reviewed current laws and other literature o

The survey findings included the following am

existing statutory rape laws. The States enacted t

ments between January 1995 and January 1997:

■ Raising the age of the minor who is subject to 

the law. North Carolina and Pennsylvania rais

the minor—up to 16 years—who is subject to 

under the criminal unlawful sex laws. North Ca

as part of amendments that created different o

on the age of the minor and the age gap betwe

and the defendant. Under the new statute, sex 

15-year-olds is now a crime.

■ Age gaps. Along with raising the age of the min

Carolina and Pennsylvania also imposed age ga

minor is above a certain age, a crime is commi

if the defendant is a specified number of years 

the minor (5 years in North Carolina and 4 yea

Pennsylvania). 

■ Impregnation of a minor as a separate offense

passed several provisions regarding unlawful se

minors. Impregnation of a minor is now a sepa

and defendants may be liable for child support 

medical expenses. If paternity is established in 

ing defendants 24 years or older, child support 
p

than the minor. Delaware increased the po

when the defendant is 10 or more years ol

under 16, and Georgia increased the sente

ry 10 years when the defendant is 21 years 

Florida rewrote one of its laws so that pers

are prohibited from having sex with 16- an

■ Possibility of civil penalties. California has 

penalties ranging from $2,000 to $25,000 f

amount depends upon the age of the defen

gap between the defendant and the minor. 

will be used to reimburse the costs of pros

remainder placed in an Underage Pregnanc

Fund.

■ Encouraging reporting. Tennessee passed 

but not requiring, health care providers to 

rape, defined in Tennessee as sexual assau

to 15 years old. Reporting is already mand

under 13. Florida passed legislation makin

dren under 16 child abuse if the offender i

Below is proposed legislation considered b

legislatures that was not enacted during their 

completed session.2

■ Expanded scope of laws/raising age of pro

Indiana and Washington considered provid

penalties for men 21 years old and older w

a minor who is either 16 or 17 years of age

Washington would also have required the d

a position of authority. Both proposals incl

Hawaii, Mississippi, and Utah considered r

the minor protected under statutory rape l

have raised the age to 18; Mississippi woul
4

pg g, 

country at 14 years.

■ Prosecution grants, penalties for parents’ failu

prosecution. New York and Connecticut consid

rizing grant programs for statutory rape prosec

Connecticut considered imposing criminal pen

parents who fail to seek prosecution of a man e

sexual relationship with their daughter if she w

and knew the offender.

■ Mandatory reporting. Tennessee and Virginia 

legislation requiring the report of statutory rap

mandatory child abuse reporting laws.

■ Penalties associated with pregnancy. Illinois a

considered increasing the penalties for statutor

pregnancy results. 

■ Mandatory minimum sentence. Massachusetts 

1-year mandatory minimum sentence if the de

years old or if there is a 5-year age difference b

minor and the offender. 

■ Exemption to precondition for benefit eligibili

Hampshire considered adding statutory rape as 

tion to establishing paternity as a precondition 

for State public assistance benefits.
Several basic questions permeate the disc

ry rape laws. A clear understanding of these q

put proposed legislation in context and focus 

legislation. We encourage legislators and their 

the following:

1. What is the purpose of statutory rape l

2. What does criminal prosecution mean?

3. Are the purposes furthered through the 

4. What other State efforts and policies n

considered?

■ What is the purpose of statutory rape law

sex with minors a crime and the proposed 

laws may have more than one purpose. Ge

specific a State can be in outlining a law’s pu

the better. Knowing the specifics will further 

help the State develop and pass laws that a

what the State determines to be prosecuta

■ What does criminal prosecution mean? S

purposes in laws lead to different results. F

laws are aimed at “predatory, exploitative” 

critical to define what “predatory and expl

is. If laws are designed to encourage respon

cussing marriage and paternity, criminal p

be in order. 

Reviewing the laws and practices in the pa

will educate legislators about what outcom

ed from criminal prosecution for statutory 

mean one or more of the following outcom

of a felony, conviction of a misdemeanor, i
6

, g

will understand the circumstances that must b

offender to receive this charge and any conditi

■ Are the purposes furthered through the crimin

the recent ABA survey of 21 States that were c

proposed legislation, a number of different mo

observed on the part of State legislators, includ

● General intent to protect minors from sexu

intercourse.

● Desire to protect minors below a certain a

tory, exploitative sexual relationships—for 

much older partners.

● Prevention and/or reduction of the inciden

pregnancy.

● Reduction of the number of young mother

● Responsibility and accountability in sexua

parenting.

A question often considered is whether the law

are furthered by criminal prosecution. With pu

in mind, any proposed change to the law can b

uated. This evaluation is best aided by reviewi

studies, researching local- and State-level stati

tion, holding hearings to obtain assessments by 

tice and agency professionals, and conferring w

staff in other States. Such an evaluation should 

tors determine whether the impact of the prop

tion is likely to further the law’s purposes.
y g , 

the State’s statistics may clarify whether th

likely to have the desired impact. While na

may suggest an answer, State or local evide

North Carolina, statistics presented by the 

Organization for Women suggested that inc

ment of the statutory rape laws would not 

nancy in that State. 

■ What other State efforts and policies need 

States and localities may have a variety of 

to reduce teen pregnancy. They may work 

on sexuality education, which may or may 

by new legislation. For example, the ABA s

that some States are struggling to balance 

exploitation through statutory rape laws w

that focusing on prosecution will result in 

seek appropriate health care, including con

prenatal care. Some States find that this st

when States consider raising the age of the 

protection under statutory rape laws.

Efforts to increase reporting of statutory r

resulted in a struggle to balance conflicting co

States have reached consensus by defining th

laws to focus prosecution efforts on cases per

ative. For example, a recent Florida statute p

24 or over from sexual activity with 16- and 

This effectively requires at least a 7-year age 

older minors. Florida’s legislators are comfort

exploitation as a large age gap.
8

Raising the Age of Consent and Institutin

Defendant Age or Other Requirements To 

the Scope of the Laws 

■ The issue. Raising the age of consent by using 

laws to protect minors up to age 16, 17, or 18 

a number of issues. Major questions include ho

defendant must be and how much of an age dif

between the defendant and the minor.

■ Discussion. The modern trend has been to rais

the minor protected under criminal statutory r

Currently, the highest ages protected range fro

with more than 90 percent ending protection a

or 18 years. A recent ABA survey of State legis

als indicates that 12 of 21 States considered ra

of the minor protected under statutory rape law

of these States identified a challenge when the

age of consent—how to avoid making consensu

among teenagers a criminal offense. For this re

ber of States have considered or required eithe

age for the defendant or an age difference betw

and the defendant. For example, North Carolin

enacted legislation creates a new class of statu

cover 13-, 14-, and 15-year-olds if the defendan

years older than the minor.

Currently, 23 States have age differentials for a

their statutory rape offenses. Twenty-six States 

fied an age minimum for the defendant under 

statutory rape offense. The ABA survey indicat

States that considered raising the age of the m

also considered age differentials between the m

defendant and/or age minimums for the defend

over, in 6 of the 21 States interviewed in the A
, 

the State, the age differential may be set at 

older than the minor. Most often, however, 

4 years. In the survey, the age differentials 

variations. 

Another category of persons some States c

penalize can be found in the marriage defe

Some statutes specify that marriage is a de

generally, the marriage has to have occurre

ual penetration takes place, in one State it 

“cure” the crime if it occurs after the fact. 

States only permit this defense if the mino

tain age. Moreover, in a number of States, 

stated not as a defense but is included in d

such as sexual penetration by a person wh

spouse of the minor.

The ABA survey of issues in recent legislat

indicates that some States are targeting “o

Florida, for example, the crime of unlawful 

with certain minors applies to sexual activ

and 17-year-olds and persons 24 or older. A

ditions, such as being in a position of fami

authority, consensual sex with these minor

older does not fall within a crime. Viewed 

law essentially imposes a 7- or 8-year age g

17-year-olds are involved. As noted in the 

States have expressed similar concerns abo

ers, viewing these relationships as “exploit

however, this concern has arisen over the 

be imposed.

■ Questions to consider regarding legislatio

age of consent:

1. Why is the legislation being introduced

discussion of purpose.)
10

p

3. To what age should the criminal laws be us

a minor from “voluntary” sexual intercours

4. Against whom should the criminal laws be 

tect a minor from sexual intercourse? It m

to break this question down further: Who s

penalized? Who should the laws target?

Available Penalties and Factors Warrantin

Increased Sanctions

■ The issue. A variety of sanctions, penalties, an

may be associated with statutory rape, includin

jail, child support, fines, counseling, and treatm

Modern statutory rape laws usually reflect mul

ry schemes with different penalties set forth de

the age of the minor. In addition, laws may pro

increased penalties if the defendant is much ol

minor, if pregnancy results, or under other circ

■ Discussion. Sanctions or penalties set forth in 

typically include possible or mandatory prison 

child support, fines, and, at least in California, 

ties. In addition, restitution, counseling, therap

treatment services may be ordered.

Changes to the possible sentences have recent

sidered by a number of States. At least 10 Stat

to the ABA survey indicated that they had con

or lengthening the penalty for statutory rape.3 

most of these States considered raising the pos

tence, some considered legislation that raised t

for one level of the crime, but lowered it for an

For example, Oregon recently considered decr

penalty for rape in the third degree (sex with a 
g qy 

pregnancy results. Further, as discussed in 

other States considered or established man

sentences when the defendant and/or mino

requirements. For example, in Georgia the 

is 10 to 20 years (increased from 1 to 20 y

defendant has sex with a minor under the 

Child support. Some States authorize an o

port as part of their statutory rape statute. 

noted below in the Pregnancy: Sentencing 

port section, courts in a number of States 

award child support through other, more g

Fines/civil penalties. Many statutes author

up to a certain amount. In addition, Califo

adopted a provision that allows the award 

in statutory rape cases. The possible amou

the age differential between the offender a

range is from $2,000 (age gap of 2 years) t

under 16 and offender over 21). The distri

authorized to bring actions to recover the 

amount equal to the costs of pursuing the 

deposited with the treasurer of the county 

ment was entered. The remainder goes to 

Pregnancy Prevention Fund.

Sex offender registration. A Federal law pa

ties Federal funds to State passage of sex o

tion laws. This law has been amended seve

recently in 1997. All States currently have 

istration laws. The Federal law requires a m

registration for a person convicted of “a cr

against a victim who is a minor.” A series o

Federal law further defines “a criminal offe

tim who is a minor.” State statutory rape o

appear to be covered under two of the clau

the Federal law. Thus, it appears that statu
12

py 

Age of the minor and/or age of the offender. B

number of States have determined that the age 

and/or the age of the defendant should be a fac

tencing. As noted previously, the modern trend 

multilevel statutes, with increased penalties as

sexual intercourse with younger minors. Moreo

above, States in recent years increasingly belie

defendants warrant increased or mandatory m

ties. For example, the survey revealed the follo

● Delaware raised the penalty from 0–10 yea

years when the minor is under 16 years of 

offender is 10 or more years older or when 

under age 14 and the offender is at least 19 

● In Georgia, the minimum penalty is now 1

from 1–20 years, when an offender at least 

has sex with someone under 16 years of ag

● A bill proposed in Oregon in 1997 would in

penalty for rape in the third degree (minor 

years) when the defendant is at least 21 ye

The crime would then become a class B fel

able by up to 10 years and/or by a fine of $

Pregnancy: Sentencing and child support. As 

vey indicates, a number of States considered le

focused on pregnancy. These proposals reflect d

possibly conflicting, penalties. When pregnancy 

tencing can include longer prison time and mor

financial responsibility through restitution and 

● Illinois proposed and Oregon passed legisla

raises the penalty if a pregnancy results by 

felony up another level. 
ggg 

criterion written into the statute, but i

the sentencing guidelines.4

● Several States permit the court to orde

costs associated with the pregnancy da

birth of the child. Some expressed con

might permit offenders who can pay to 

poor offenders who cannot pay are sen

Use of drugs and/or alcohol. Some States 

or passed legislation increasing the crimina

with minors when drugs or alcohol are inv

example, considered increasing the penalty 

minors if the offense was committed while 

under the influence of drugs or alcohol.

■ Questions to consider regarding legislatio

1. What is the purpose of the penalty pro

sistent with the avowed purpose(s) of t

legislation?

2. Does State or local statistical informati

service providers, law enforcement, an

indicate the legislation is warranted?

3. Would more vigorous enforcement of e

the desired result of the proposed legis

4. Are there other means, such as educat

used to reach the desired goal, either t

proposed legislation or to replace it?
14

■ The issue. All States have laws that require cer

professions, such as school or medical personn

child abuse and neglect. The question of wheth

rape laws are included within these mandatory 

laws is unclear in many States. More research 

is needed.

■ Discussion. The ABA survey revealed that in r

least four States considered making the reporti

ry rape mandatory by redefining child abuse to 

statutory rape.5 Some States have done so, usu

limitation that the minor is below a certain age

years of age in Florida. This change requires th

mandatory reporters of child abuse to report st

As previously noted, States may be concerned 

ry reporting requirements will discourage mino

ing or remaining in health and mental health c

Delaware approached the reporting issue differ

than redefining child abuse in the law, a “mem

understanding”—an informal agreement amon

ment, State agencies, and schools—was adopte

statutory rape cases are considered child abuse

child abuse reporting mechanisms are to be us

fullest extent to report it.

■ Questions to consider regarding reporting law

1. Does the State child abuse reporting law in

tory rape crimes? Does it cover all minors 

up to a certain age? Does it only cover acti

ent or someone in a position of trust or au

2. Has the legislature obtained input from hea

tal health care providers on such issues as 

ty and the potential impact that reporting 

delivery of needed services to victims of st
■ The issue. Some States are not actually foc

their statutory rape laws, but rather are ch

into creating special prosecution units or a

crimes in their child sex assault units.

■ Discussion. The ABA survey revealed that 

the States interviewed considered creating 

task forces to prosecute statutory rape offe

to these States, these units encourage pros

statutory rape cases seriously—even when 

unwilling victim. Since some prosecutors t

efforts on prosecuting cases with the highe

success, statutory rape cases are often low 

prosecutors anticipate unwilling witnesses 

jurors. Some States find that creating spec

ters this low priority status. In addition, St

developing specialized units creates certain 

prosecutors become more familiar with iss

develop expertise with the issues, and begi

working relationships with others working 

■ Questions to consider regarding special p

1. Is legislation necessary to create or to 

prosecutor/unit for these cases, or can 

specialized child abuse units take on th

2. Do State and local prosecutors favor th

units or do they have another proposal 

increase enforcement?

3. Have States that have implemented sp

with continued success in prosecuting 
16

Each State legislature must determine the nee

ments to statutes or development of new legislati

legislators and their aides may need guidance as t

the questions of exactly what kind of laws to pass 

current laws require adjustment to reflect new re

questions and issues posed in this Handbook are 

support thorough discussion and consideration of 

surrounding statutory rape legislation.

OVC encourages legislators and their staff to c

poses of their State statutory rape laws. Legislato

review existing laws, research State and local stat

other research studies, and confer with other Sta

staff members. Hearings should be held to assess 

the current state of enforcement as well as the po

of enforcing any new or amended laws.
1. The U.S. Congress included provisions on s

the Welfare Reform Act (Personal Responsibil

Opportunity Reconciliation Act of 1996, P.L. 

1996), which notes a need for the Federal Go

study the issue.

2. Connecticut, Hawaii, Illinois, Indiana, Mas

Mississippi, New Hampshire, New York, Orego

Utah, Virginia, and Washington.

3. California, Delaware, Georgia, Hawaii, Illin

North Carolina, Oregon, Utah, and Washingto

4. California, Colorado, Delaware, Florida, Illi

Oregon, and Washington.

5. Delaware, Florida, Oregon, and Tennessee.

6. California, Colorado, Connecticut, Delawar

New York, and Utah.
State Legislators’ 

Handbook for 

Statutory Rape Issu

For copies of this handbook and/or additional information, 

Office for Victims of Crime Resource Center (O

P.O. Box 6000

Rockville, MD 20849–6000

Telephone: 1–800–627–6872 or 301–519–55

E-mail orders for print publications to puborder@n

E-mail questions to askovc@ncjrs.org

Send your feedback on this service to tellncjrs@nc

Refer to publication number: NCJ 178238