Taking Statutory Rape Seriously
Imagine the following rape statute: “If a person over the age of twenty-one years has sexual contact constituting oral-genital or genital-genital contact with a minor under the age or fourteen years, such person shall be guilty of a Class A felony and shall be imprisoned for life without the possibility of parole.”
If the legislature passed it, it still wouldn’t happen. Law does not exist in the abstract. Law is a power structure, something that operates in a culture and operates largely consistent with the society’s values. Lots of people in the process, from parents to school administrators and counselors to cops to prosecutors and judges to juries would collude to make sure that a statute like that would not work the way it is written — it would for some people, who didn’t meet societal approval, but it wouldn’t for others, who do. Just like the “war on drugs”. And the reason is that no matter how much lip service we pay to the notion that statutory rape is wrong, our culture (I’m speaking very broadly here, meaning the entirety of the world that is governed by a criminal justice system in the Anglo-American tradition) doesn’t really think that adults having sex with children are always wrong.
Think this is an isolated event? All these people signed a petition in support of Roman Polaski, maybe the world’s most famous child rapist. And Whoopi Goldberg, defending him, said it wasn’t “rape-rape.” You know where she was going with that? That what he pleaded guilty to was statutory rape, which she thinks isn’t real rape. (And she pointedly ignores that the woman Polanski raped told the Grand Jury and everyone who asked since that she said “no,” that he drugged her, that she still said no, and that he forced her.) Even the term “statutory rape” conveys the impression that it isn’t “real rape” –after all, there’s a statute outlawing the conduct that is forcible rape, whatever it is called in each jurisdiction, so those are just as statutory as laws saying that fucking someone under a certain age is inherently nonconsensual and illegal. We call it by the different term in a tacit acknowledgement that it doesn’t count the same. Why don’t we call it “child rape?”
You know what Polanski (who reportedly has other victims including Charlotte Lewis and Nastassja Kinsky) had to say, to Martin Amis in a 1979 interview that has been quoted more recently by journalists rediscovering just what manner of person he is: “Everyone wants to fuck young girls!”
Or this shit, where Terrebonne Parish’s corrections officer repeatedly raped a fourteen year old inmate and the parish is trying to blame her for contributing to it because, being an inmate and pretty much at the mercy of her jailers, she acquiesced instead of yelling, kicking and probably getting beaten or disciplined by the corrupt guards.
So this guy Niel Wilson in England fucked a thirteen year old, and the system focused on the same old slut-shaming shit. In rape cases with adult victims, there’s at least the figleaf of relevance, the pretension that this is something more than an exercise in attempting to label the victim a “bad girl” undeserving of vindication, because the defense argues that it goes to consent, or failing that, the defendant’s subjective belief in consent. If that were true, then there would be no point in trying the same thing in a statutory rape case, where consent is not a defense. But the same issues come up. A barrister for the Crown Prosecution Service in this latest case said, “The girl is predatory in all her actions and she is sexually experienced,” he reportedly told the court.” Leave aside for a moment that this is a vile thing to say … how is it relevant? It’s not a defense!
Except that law isn’t a set of words, it’s a discourse of power that will tend to bend the way the people in the process see the world. Arguing that this child was somehow a slut undeserving of protection, indeed culpable for seducing this poor defendant (who was also in possession of child porn, by the way) seems relevant to the people in the process because the whole frame of reference in a rape culture is not actually consent, but whether the victim is a good girl deserving of protection. That’s always the real question, the crux of what passes for the moral substrata in matters of rape. It seems relevant to people that this thirteen year old was the alleged pursuer, that Mary Doe in Terrebonne Parish had drug problems and a sexual history … (she’s fourteen, which unless her partners were all similar-age means she has a history not of sex but of being victimized).
I’ve written before about statutory rape and I’ve written that I think there should always be a so-called “Romeo and Juliet” exception for similar-aged partners. And I still think so, though in most places 13 is too young for those provisions to apply, and rightly so. I also think that statutory rape laws ought to be enforced: not just when the parents dislike one of the participants, and not just when the prosecution is homophobic — these laws have a history of much stricter enforcement against same sex couples and anyone else whose conduct violates race, class or other norms.
Of course age is arbitrary, but there is no better option that an arbitrary line based of age. Some sort of sophistication test would inevitably bring us right back to the discourse of “bad victim.” While we might on this blog all agree that actual sophistication would mean the teens with the most ability to make mature decisions and advocate for their needs, the rest of the world out there would decide that it meant that the teens who drank and did drugs and were sexualized earliest — the ones the least able to advocate for themselves, sometimes — would be the ones not entitled to the protection of the law. The same way that the system routinely finds ways to decide that sex workers are not entitled to the protection of the law, even if the law says that they are.
And the conduct of a child victim needs to be utterly irrelevant. The principle is simple: no matter how not-innocent a child is, no matter how much they “invite” sexual conduct, being a grown-up means having the responsibility and obligation to say, “No, that would be wrong.” If a thirteen year old lies down in Times Square naked and shouts, “won’t someone please fuck me?” all the adults have the obligation — the absolute obligation — not to. Right? And if they instead fuck a child, regardless of the invitation or provocation, they belong in prison. Is that really a radical statement?
The cases I discussed above are about girls, but this is not only a girl problem.
Adult men who are not incarcerated are very rarely raped, [Edited: see comments] Rapes of adult men are less talked about, and far less common, than rapes of adult women, but boys are raped with horrifying frequency, and they are raped by grownups. (And, in fact, the lower one goes in age, the more likely that the adult who sexually molests a boy will be a women. People consistently underestimate the prevalence of women as molesters because it doesn’t fit essentialist notions of uncontrollable male sexuality, and instead reminds us that rape and sexual abuse are at least in significant part about power and control, though this dynamic cannot be entirely separated from the eroticization of abuse.) I know a lot of people treat cases like Mary Kay LeTourneau as jokes, but I think this does a tremendous disservice to boys. I think they are presumptively (and I mean a conclusive presumption) not ready for, and shouldn’t be subjected to, adult romantic and sexual relationships with adult partners. Just because the damage to them isn’t as widely acknowledged doesn’t mean it isn’t real.
There is a terrible double-standard for minors. In many places, particularly the US, people get very shouty about not “corrupting” minors by giving them accurate information about sexual health, pleasure and relationships. So much of this smacks of purity obsession. But when people violate minors’ innocence, not by giving out information that can help teens become sexual adults with agency, but by fucking them, there seems to be a lot of willingness to blame the teens for participating, or for not resisting, or for not resisting enough. That’s a lot of shit. If we were serious about protecting our youth, we would hold adults who molest them 100% responsible and not even raise the issue of the victim’s conduct. That’s what we would do if we were serious.