It's Time To Alter Statutory Rape Laws?

9-17-2008 National:

Is The Recent Spate Of High-Profile Teen Pregnancies, Including Bristol Palin's and Jamie Lynn Spears's, Telling Us It's Time To Alter Statutory Rape Laws?

Surely I'm dating myself with what I am about to say but, when I was Jamie Lynn Spears's age, I don't recall any of my classmates proudly toting an infant around as if it were the latest designer accessory.

But, that was the Eighties - a time when the only thing bigger than a 16-year-old's hairdo, was her fear of getting pregnant. Today, if the recent spate of celebrity teen pregnancies is an indication of anything, it's this: When it comes to teens and sex, we're definitely not in Kansas anymore.

As readers likely are well-aware, Bristol Palin's teen pregnancy was thrust into the spotlight courtesy of her mother, Republican Vice-Presidential nominee and Alaska Governor Sarah Palin. On September 3, 2008, a visibly pregnant Bristol (boyfriend by her side) was in attendance for Palin's acceptance speech at the Republican National Convention.

Nowadays, with more and more teenagers having children before they themselves are old enough to vote - and, seemingly, doing so unabashedly - perhaps it's time to re-examine the current state of statutory rape laws in the hope of determining whether such laws have become too hard, too soft, or just right when it comes to close-in-age couples, one of whom is underage.

This is often known in the law as a "Romeo and Juliet" situation, and some states accordingly have "Romeo and Juliet" exceptions to their statutory rape laws -- but some do not, or their exceptions only apply if the members of the couple are very close in age.

Some Famous "Romeo and Juliet" Situations: Genarlow Wilson's, Jamie Lynn Spears's, and Bristol Palin's

Genarlow Wilson isn't glamorous or famous, but he has become the poster-child for the issue of statutory rape and, therefore, it's impossible to have a discussion about teens and sex without him.

Wilson was a 17-year-old Georgia resident when he had consensual oral sex with a 15-year-old girl at a holiday party. At the time, the age of consent for intercourse in the state of Georgia was 16. A legal provision allowed the participants' consent to be taken into account by prosecutors if they were close in age - but only if they had engaged in vaginal sex. Because the case involved oral sex, the consent of the girl in Wilson's case was not considered a mitigating factor.

As a result, Wilson was convicted of aggravated child molestation and, shockingly, sentenced to ten years in state prison. Fortunately, on October 26, 2007, the Georgia Supreme Court ruled that Wilson's sentence was "grossly disproportionate" to his crime, in violation of the Eighth Amendment right not to suffer cruel and unusual punishment. As a result, he was released - but only after spending more than two years of his young life behind bars.

Why is Genarlow Wilson relevant here? Because - in theory, at least -- he could just as easily be 18-year old Levi Johnston (father of Bristol Palin's unborn child); or 19-year-old Casey Aldridge (father of Jamie Lynn Spears's recently-born baby girl).

Did these other "Romeo and Juliet" situations violate the law? Ages of consent vary widely - and can be as low as 12 (in Oregon). In Johnston and Palin's case, because they are closer than three years in age, Alaska's law is rather forgiving.

In that state, "Romeo and Juliet" provisos seem to be the rule, rather than the exception. Under Alaska's statutory rape laws, it is considered first-degree sexual abuse of a minor for someone age 16 or older to engage in sexual penetration with someone under age 13. Under the same statute, however, a person commits second-degree sexual abuse of a minor when a person age 16 or older engages in sexual penetration with someone who is age 13, 14, or 15 and at least three years younger than the offender. Each of these offenses is a felony commanding a ten-to-twenty-year state prison sentence. Also in Alaska, participants who are each under age 16, but over age 13 are excepted from the rule.

In Aldridge and Spears's case, if their intercourse occurred in California, where Spears works and sometimes lives, and where the age of consent is 18, then it plainly violated the law. If it occurred in their hometown in Louisiana, it is considered felony carnal knowledge of a juvenile when someone age 19 or older has consensual sex with someone between age 12 and 17, or when a person age 17 or older has consensual sex with a participant between age 12 and 15. There, misdemeanor carnal knowledge of a juvenile is sexual intercourse with consent between someone age 17 to 19 and someone age 15 to 17 when the difference in their ages is greater than two years.

Because each state's statutory rape laws are different, bizarre situations can arise. A consensual sexual act in Alaska, for example, might net a person state prison time if done in Arizona. If a 17-year-old girl and a 20-year-old guy have sex on a vacation at the Grand Canyon, but then head back home to New York, where the age of consent is seventeen, does it make sense to prosecute the guy in Arizona, where he technically has committed a crime?

Even if Statutory Rape Technically Occurred, Authorities Are Wise Not to Prosecute Johnston or Aldridge

The idea behind statutory rape laws is that - in the eyes of the law - a person is incapable of consenting to various intimate acts until he or she reaches a certain age (usually she, in heterosexual relationships). States choose different, arbitrary numbers to approximate the age when they believe minors are mature enough to be able to meaningfully consent to sex.

When one sex partner is well into adulthood and the other is very young, these laws are vital and necessary and it is right that sentences are lengthy. But when a consensual sex act occurs between teenagers of like age and intellect, the situation is arguably very different.

In today's world, as much as any parent or person in authority would like to believe otherwise, sometimes "Yes" does, in fact, mean "Yes." The law's claim that the younger teen is not actually consenting is at odds with the reality of the situation when, for example, the two members of a teen couple carefully plan to lose their virginity together.

Moreover, in these "Romeo and Juliet" situations, society is showing teens one thing, and the law is telling them another. How can we, as a society, prosecute sex between some teenagers, when we are openly accepting of sex between others? How can we jail Genarlow Wilson for years, yet invite Levi Johnston to a party's presidential and vice-presidential nominating convention as an honored guest?

Meanwhile, the strong message telling teens not to have sex - a message that isn't getting through - only obscures a more important message - telling teens not to have unprotected sex. Not only pro-choice parents, but many pro-life parents, should agree that more important than preventing "Romeo and Juliet" teen sex - which, in our culture, is going to happen anyway - is preventing unwanted teen pregnancy.

In sum, in light of Spears, Palin and Wilson, America is in need of a serious legal reality check. Modifying "Romeo and Juliet" exceptions to reflect modern realities would be a good first step. So would ensuring that young Romeos and Juliets have contraception close at hand, rather than pretending they never would even consider having sex in the first place. ..Source.. by Jonna M. Spilbor is an attorney and legal analyst on "Kelly's Court", airing daily on the Fox News Channel. Jonna is also the host of a call-in radio show Thursdays on WPDH FM, and a frequent guest commentator on MSNBC, Court-TV and other television news networks, where she has covered many of the nation's high-profile criminal trials. In the courtroom, she has handled hundreds of cases as a criminal defense attorney, and also served in the San Diego City Attorney's Office, Criminal Division, and the Office of the United States Attorney in the Drug Task Force and Appellate units. In 1998, she earned certification as a Court Appointed Special Advocate with the San Diego Juvenile Court. She is a graduate of Thomas Jefferson School of Law, where she was a member of the Law Review.