法律英语：73 What is the Age of Consent?

by Adam Freedman

Mario writes in to say: “Hi Adam, I love your podcast, it’s very informative 1.”  But that’s not important. The important thing is that Mario goes on to say “My son just turned 18 and his girlfriend is 17. They do have sexual relations. Is it possible that her parents can put him in jail for going out with a minor 2?”

Great question. So, when is teen romance a crime?  The answer, of course, is: whenever it involves vampires 3 on TV. Well, the real answer will take a little longer to explain, so let me begin with some basics.

What is the Age of Consent?

It’s not easy being the parent of a teenager. There’s the loud music, the acne medications, and the social awkwardness.  But still, one doesn’t usually bargain on having to visit junior in the slammer. Mario, I wish I could say that your 18 year-old son is behaving perfectly 4 legally, but the truth is, it depends on which state he and his girlfriend are living in.

The law makes a basic distinction between consensual sexual relations and non-consensual sexual relations. The former is generally legal, whereas the latter is a crime; depending on the circumstances it may even be rape 5. Crime is serious business, as recently underscored by the case of French film director Roman Polanski, who faces extradition 6 to California stemming from his conviction for having sex with a minor 30 years ago. As always, if you suspect a crime has been committed, you should always contact the police or an attorney.

What is Statutory Rape?

Mario might be thinking: but my son and his girlfriend are both consenting. What makes this complicated is that the law assumes that minors 7 are incapable 8 of consenting to sexual activity. Therefore, any sexual contact with a minor typically constitutes a crime because it is technically 9 non-consensual, even if both parties are perfectly willing. If intercourse 10 is involved, it may amount to the crime referred to as “statutory rape.”

Who is Considered a Minor?

What, then, is a “minor” for these purposes?  Each state has the ability to establish the minimum age at which a person can consent to sex--this is popularly known as the “age of consent” even though state laws don’t use that term. In most states, the age of consent is 16; however, in a number of states, including California, Florida, and Wisconsin, the age is 18. If Mario lives in one of those states, it’s possible that his son might be violating the law because of his relationship with a 17 year-old.

Contrary to Mario’s assumption, the girl’s parents do not have the power to put Mario’s son in jail. Only the state can do that. The girl’s parents can, however, file a report with the police and--if it happens to be a state where the age of consent is 18--the police may bring charges. The fact that Mario seems to be fine with his son’s relationship is legally irrelevant 11. Indeed, even if both parents approve, sex with a minor below the age of legal consent is still a crime.

What is the Romeo and Juliet Defense 12?

Are there any defenses that might keep the young lovers out of trouble?  Probably the strongest factor in their favor is the closeness of their ages: he’s 18 and she’s 17.  Where a case of statutory rape involves two parties who are very close in age (generally within four years of each other), some states recognize this as a mitigating 13 factor. Under these so-called “Romeo and Juliet laws,” proximity 14 in age can make an unlawful situation lawful 15, or may at least provide an “affirmative defense” that the accused sexual offender 16 may raise at trial.

Romeo and Juliet is, of course, a beautiful story.  But remember, things didn’t actually work out for the “star-crossed” lovers. They both ended up dead!   If you’re a parent of a teenager, be familiar the laws in your state and be aware of your children’s activities. No matter what your view of personal or religious ethics 17, there might actually be strong legal reasons for the kids to practice abstinence.

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