Peeking under the Covers: Taking a Closer Look at Prosecutorial Decision-Making Involving Queer Youth and Statutory Rape

Abstract: Queer youth are in a precarious position. In comparison to their heterosexual peers, queer youth are disproportionately punished in the criminal justice system, and they may be more vulnerable to being prosecuted for statutory rape. They may be selectively prosecuted because prosecutors have broad discretion in whom they prosecute, and social norms favoring heterosexuals may be part of their decision-making process. In light of the significant barriers before a statutory rape defendant alleging selective prosecution, especially for juvenile defendants, limited discovery orders like the one at issue in Commonwealth v. Washington may be a pragmatic way to make equitable change.IntroductionIf it's two boys and they're both young or it's two girls, there's a tendency to assume it's abuse. [With] opposite genders they're more likely to say "Well, you know, they're experimenting."-A juvenile defender1Statutory rape laws vary by state and complications arise when the sexual activity occurs between a juvenile and a person who is close in age but has already reached majority.2 Prosecutors have discretion in prosecuting statutory rape cases and their decisions often depend on several factors such as the age of consent, whether the sexual activity resulted in pregnancy, the age gap between the parties, and whether the parties are of the opposite sex.3 The parties' sex may invite scrutiny when, for example, a state legislatively carves out a "Romeo and Juliet" exception.4 This exception precludes prosecution of parties engaging in proscribed sexual activity if they are close enough in age, as defined by the statute.5 Although this exception may be gender-neutral, some Romeo and Juliet exceptions discriminate against non-heterosexual ("queer youth") because they exempt only opposite-sex sexual activity.6 For this reason, the heterosexual or homosexual nature of the activity may factor into a decision to prosecute.7 These discriminatory Romeo and Juliet exceptions place queer youth at a greater risk for statutory rape prosecution.8Even in states without these discriminatory exceptions, prosecutors may still consider sexual orientation when prosecuting.9 In Commonwealth v. Washington W., a Massachusetts case, two boys under the age of seventeen allegedly had an ongoing sexual relationship.10 When the younger boy's father discovered the relationship, he reported it to the police.11 The prosecution subsequently charged the older boy, Washington, with two counts of statutory rape and two delinquency complaints of indecent assault and battery.12 Although Massachusetts has no Romeo and Juliet exception, Washington argued that the district attorney selectively prosecuted him because of his sexual orientation.13 Therefore, the trial court granted a limited discovery order compelling the district attorney's office to produce statistical data regarding the prosecution of statutory rape and indecent assault and battery in cases involving similarly aged teenagers of the opposite sex.14 As Washington argued, even in states where discriminatory Romeo and Juliet exceptions do not exist, sexual orientation may be a factor in prosecutorial decision-making.15Any defendant alleging selective prosecution faces several barriers. 16 In United States v. Armstrong, the Supreme Court held that a defendant must first make a threshold showing of selective prosecution before a court will grant discovery.17 To meet this threshold, defendants must demonstrate that prosecutors targeted them while ignoring other similarly situated individuals.18 The Court imposed this barrier to discovery for policy concerns, such as facilitating law enforcement and reducing the attorney general's encroachment into Executive territory. 19 Prosecutors retain broad discretion in choosing their defendants and, even if a defendant reaches the threshold necessary for discovery, Armstrong remains an arguably insurmountable barrier.20 Absent clear evidence to the contrary, prosecutorial decision is presumed proper. …