MA- Statutory rape law challenged

8-10-2008 Massachusetts:

SPRINGFIELD - He was 17; she was 15½. His lawyers say the sex between the two was consensual.

And, the defense lawyers say he should be not be prosecuted under a law they argue is unconstitutional and archaic in this day and age.

A challenge to the state's statutory rape law is unfolding in Hampden Superior Court in the case of a Chicopee teen whose lawyers argue the law is out of date and should not be applied in cases in which the teens are close in age and engage in consensual sex.

A prosecutor and a legal expert contend, however, that the statutory rape law - non-forcible rape of a child - is in place to protect children and prosecution is pursued when there are aggravating circumstances.

Attorneys Linda J. and John M. Thompson argued last week to Judge Peter A. Velis that Raphael Rivera, now 18, should not be prosecuted in a case they said alleges he had consensual sex with another teen last November at the home in which he lives with his father.

Society has changed drastically since the statutory rape law was enacted, and the law has to change drastically too, John Thompson said. Since the state Legislature has not changed the law on its own to protect an accused person's constitutional rights, the judiciary must uphold the constitutional rights of the accused, he argued.

The Thompsons contend the closeness in age of the accused and the alleged victim presents "a question whether there is a rational basis to treat one as a victim and one as a perpetrator."

They also argue that a successful prosecution of Rivera would amount to cruel and unusual punishment. Under the tests determining cruel and unusual punishment, Linda Thompson said, a punishment for sexual activity between a 17-year-old high school senior and a classmate two years his junior that exposes him to the possibility of life in prison and the certainty of registration as a sex offender is "grossly disproportionate."

The arguments were presented to Velis on July 30. The judge asked for additional written arguments from the prosecution and defense.

In the state's written response, Assistant District Attorney Thomas H. Townsend wrote that the courts have reviewed the punishment for statutory rape and upheld the finding that it is not cruel and unusual. The courts, he said, have determined that the interests protected by the statutory rape law are compelling.

The modern purpose of the statutory rape law is to prevent the victimization of minors, Linda Thompson said, and that is not applicable in this case.

She said that collectively, 44 states and the District of Columbia don't criminalize consensual peer sex among teenagers. Thirty-three states employ age differentials requiring the defendant to be a certain number of years older than the victim in order for prosecution, some using four years as the time span, she added.

Rivera is also facing a second case involving a second girl in which he is charged with both statutory rape and forcible rape of a child. A motion to dismiss those charges is also pending. The charges stem from an incident in September.

Wendy J. Murphy, a lawyer specializing in child abuse and sex crimes cases and an adjunct professor at New England Law School in Boston, is a proponent of maintaining the statutory rape law.

She said in her experience "truly consensual" sex between, for instance, a 15-year-old girl and her 17-year-old boyfriend, is not prosecuted unless there are special circumstances.

Although different teens may have different levels of maturity at the same age, Murphy believes in the philosophy behind the law - that a child under 16 is not mature enough to make a choice to have sex.

First Assistant District Attorney James C. Orenstein declined to discuss the specifics of the Rivera case, but said prosecutors consider a number of factors in deciding when to prosecute an allegation of statutory rape.

Among those are the age discrepancy between parties; the wishes of the alleged victim or his or her parents; and whether the offender has any other criminal record of pending case, particularly of a sexual nature.

Another factor is the presence - or absence - of aggravating factors such as if the sexual act resulted in an unwanted medical condition, such as pregnancy.

"I would say that the statutory rape statute is one of an array of statutes that have been enacted to protect children," Orenstein said. "Despite any change in social mores, we think this protection has continued viability." ..News Source.. by BUFFY SPENCER