MA- Judge upholds child protection

11-17-2008 Massachusetts:

SPRINGFIELD - The state has a right to protect children from an immature decision to engage in sex, a Hampden Superior Court judge ruled after a request that a statutory rape charge be dismissed in a case involving two teenagers.

The decision came after lawyers for defendant Raphael Rivera said his statutory rape charge should be dismissed because he had consensual sex with a girl aged 15½ when he was 17.

The statutory rape law prohibits sex with a person under 16.

Judge Peter A. Velis wrote in an Oct. 15 decision, "While this cutoff may not be perfect - some adolescents may be mature prior to 16 and others may be immature long after their 16th birthday has come and gone - this potential imperfection does not render it irrational."

Lawyers Linda J. and John M. Thompson argued in late July to Velis that Rivera, now 18, should not be prosecuted in a case they said alleges he had consensual sex with another teen a year ago at the home where he lives with his father. They said the law is unconstitutional and archaic.

Velis wrote in his decision, "Ultimately, there is a rational basis for concluding that children are not mature enough to have sex or consent to sex, providing for punishment of individuals that have sex with children, with or without the child's 'consent' in order to deter this behavior, and determining that a child under 16 cannot consent to sex."

The Thompsons also argued that a successful prosecution of Rivera would amount to cruel and unusual punishment.

Under the tests determining cruel and unusual punishment, said Linda Thompson, the possibility of life in prison and the certainty of being registered as a sex offender is "grossly disproportionate" for sexual activity between a 17-year-old high school senior and a classmate two years his junior.

Velis said that courts have said that the cruel and unusual punishment argument should be made after sentencing, and Rivera has not been tried or sentenced.

First Assistant District Attorney James C. Orenstein has said that prosecutors consider a number of factors in deciding when to prosecute an allegation of statutory rape.

Among these 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 a 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. ..News Source.. by BUFFY SPENCER