12-14-2008 Alabama:
What some teenagers might see as an innocent relationship could land at least one them in prison if they aren’t familiar with Alabama law.
More often than not, it is an older teenage boy dating a younger teenage girl who lands behind bars and is saddled with a felony rape charge.
Of the 96 registered sex offenders in Houston County, about a third of them have been convicted of felony second-degree rape, often known as statutory rape. Many of the most recent cases are teenage boys in relationships with girls legally too young to consent in the relationship.
Second-degree rape crimes have dramatically increased across Houston County over the past couple of years while for the most part the numbers remained the same across the rest of the Wiregrass. The number of charges tripled in Houston County from 2006 to 2007, and then more doubled again from 2007 through most of 2008.
District Attorney Doug Valeska called today’s teenagers different than year’s past. He said as the numbers of these crimes continue to increase, the number of teenagers losing their innocence and youth will also continue to rise.
“My explanation as the district attorney is times are changing. Morals are not what they used to be,” Valeska said. “People have become more willing to do sexual activity. Their respect for authority has changed, for their parents and law enforcement. We still have plenty of excellent kids that don’t do these things.”
Jim Parkman, who has been a criminal defense lawyer for more than 30 years, said most statutory rape charges involve people who know each other and often people who had at least a dating relationship.
“There’s a different world out there now,” Parkman said. “Dothan High is trying to pass a dress code. These kids just don’t look like they used to, and the attitudes have changed.”
Second-degree rape differs from first-degree rape in that it doesn’t involve the use of force during the sexual act. Authorities could charge someone with the crime if they’re 16 years old or older and have sex with someone else who’s less 16 years old and older than 12. The assailant also has to be at least two years older than the victim. The assailant faces the charge even if the victim consented to the act.
Second-degree rape is a Class B felony and carries a possible punishment of two to 20 years in prison if convicted, along with a requirement of lifelong registration as a sex offender.
“It’s a sign of the evolving moral standards in the country,” said David Hogg, a Dothan defense attorney. “It’s my suspicion that you have younger people who’re sexually experimenting more. If younger people are experimenting with older people of the opposite sex, then you’ll see those type of charges.”
Houston County Sheriff’s Investigator James Brazier said it’s very uncommon for a female to be charged with second-degree rape. Brazier said there are only three women on the county’s sex offender registry, including a second-degree rape conviction. Brazier, who regularly checks to see if sex offenders are property registered, called second-degree rape the more common sexual assault than first-degree rape. He said if the victim is younger than 12 years the suspect automatically faces a first-degree rape charge.
“These guys and girls have to realize if the age difference is there they’ve got to take the responsibility to say no,” Brazier said. “If they luck up and get youthful offender they’ll still have to register for 10 years.”
A young person charged with a crime between the ages of 18 and 21 has the opportunity to apply for youthful offender status, which seals their case even if convicted.
Shaun McGhee, a contract attorney for Circuit Court Judge Butch Binford, said the impact on those charged has a long-lasting effect.
“You’re basically branded for life,” McGhee said. “It does impact their lives. They have to register as a sex offender… you’re still looking at two to 20 years in prison.”
The young men charged with the crime who are younger than 21 have the opportunity to apply for youthful offender, but McGhee said more often than not they’re denied youthful offender status. McGhee said a sound defense in second-degree rape cases is that it just didn’t happen, but his not knowing the victim’s age is not a defense.
Statute Review
Several area lawyers believe state legislators should examine the law for second-degree rape, especially the punishment that goes along with a conviction for the crime. Thomas Brantley, a Dothan criminal defense lawyer, suggested legislators review the law for second-degree rape and second-degree sodomy to allow for a psychological evaluation if the defendant’s age falls within five years of the alleged victim.
“Too often, I have found young men who’re found guilty of rape second are not dangerous to the community,” Brantley said. “It’s just a snapshot, a moment in time when they exercised poor judgement probably because of hormones. I don’t think they should have to register as a sex offender for the rest of their life.”
Eric Davis, a defense attorney who handles appointed cases as a contract attorney for Anderson, called the punishment harsh for a second-degree rape charge.
“It’s a pretty harsh penalty for an 18-year-old who’s dating a 15-year-old. He may have to register for the rest of his life,” Davis said. “I think judges should be allowed to have some discretion in the registration issue as long as it’s in the context of a relationship.”
Valeska disagreed and said legislators already changed the age of consent from 18 to 16. He said if he doesn’t prosecute second-degree rape charges, the assailant could move on to another underage victim.
“They’re stealing their youth, their innocence. It’s so preventable. They know how old these girls are, they know what grade they’re in,” Valeska said. “I can’t legislate morality as the district attorney.”
Valeska said grand juries have decided against issuing indictments in several second-degree rape cases.
He suggested one part of the charge could be reviewed, which included whether a 17-year-old convicted of the crime with a 15-year-old victim should be required to register as a sex offender. But he said anyone 18 or older should have to register as a sex offender.
“My job as the district attorney is to enforce the laws,” Valeska said. “The purpose of registration is to protect society.”
He called education a key to at least slowing down the number of second-degree rape charges.
“Ignorance is no excuse,” Valeska said. “They say it’s love, but love is not sex.”
Valeska even said lawyers from the Houston County District Attorney’s Office would go to area schools and talk about criminal law and what type of consequences a violator could face, including second-degree rape.
“They need to be informed,” Valeska said. “I hear from parents ‘He didn’t know. He thought it was not a crime if she agreed.’ I’m not advocating sex, but they should be aware of the law, and the consequences.”
Education
Houston County Sheriff’s Capt. Antonio Gonzalez said he’s been to at least one county school to talk to students about the laws, including second-degree rape. But it doesn’t just fall to teachers, school administrators and law enforcement to make sure teenagers know the responsible actions to take.
“Parents have to talk to their kids constantly, not just the birds and bees, but the legality of it, too,” Gonzalez said.
Parkman suggested education of the consequences not just the legal ones, but the health dangers as well.
“Often they don’t buy that they might go jail, and they’re convicted and have to register for the rest of their life just like a serial rapist,” Parkman said.
Houston County Schools Superintendent Tim Pitchford said the school’s doors are always open for area officials to come and speak to the students.
“It’s something as a school superintendent and principal we need to make them more aware,” Pitchford said. “The unintentional trap they might fall into, you know, what is under age and what is not under age.”
Pitchford said several parents over the past couple of years have even requested someone come to the schools and talk about second-degree rape charges.
“As the world changes, we’ve got to do a better job of educating our students,” Pitchford said. “Our responsibility is not just academics. We have a responsibility to educate our children socially as well.” ..News Source.. by Matt Elofson
December 14, 2008
AL- Illegal consent
September 17, 2008
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.
August 10, 2008
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
