Defending Against the Charge of Statutory Rape

I’m pleased to offer this new free consumer guide called Defending Against the Charge of Statutory Rape. There is a lot of concern and misunderstanding about the specific ages that make this activity a crime, and whether certain exceptions such as parental consent or mistake of age apply (quick tip: they don’t).

While society certain has a responsibility to protect minors, many people have concerns about whether two teenagers in a committed intimate relationship should be a law enforcement issue that results in the older partner ending up as a registered sex offender. In addition, some wonder whether the laws have kept up with societal attitudes regarding a minor can consent.

In this free consumer guide, you will learn what defenses are available (and which aren’t), the range of punishment for conviction (including whether it is eligible for judicial diversion, whether it places you on the Sex Offender Registry, whether your personal assets can be seized upon conviction, and much more.

Here is an excerpt:

The first thing you need to understand about the offense of statutory rape is that a minor (under 18) cannot legally consent to have sex, so any evidence that you might like to show to suggest that the minor explicitly consented or implicitly consented by her actions (never said no, never said stop, actively participated, “wanted it”[1], etc.) is irrelevant, and therefore inadmissible.

Even if you had a text message from the minor saying “I want to have sex with you,” the jury would never hear it because she still cannot consent.

On a related note, the parents of a minor cannot “give consent” on her behalf. They may tell a person that it’s okay, but having them write a permission slip will not protect you from prosecution; the fact is that the act is illegal, and that isn’t waived by getting the parents’ permission.

The second thing you need to know about this offense: statutory rape is a “strict liability” crime, which means that your mental state does not matter. I know, it seems crazy, but you could not even present proof that the minor lied to you and that you relied on her false statement and acted upon an honest, reasonable, but mistaken belief that she was of legal age.

Perhaps you were planning to tell the jury that you demanded that the minor show you her driver’s license, and that she had a fake driver’s license showing that she was twenty-one. Now all that you’ve done is admit that you had suspicions about her age! So you see, it cannot help you, and but it can absolutely hurt you. Besides, it’s irrelevant and inadmissible.

If you look at the statute, you’ll see that there is no mental requirement, such as “intentionally,” “knowingly,” “recklessly,” or “negligently” – the prosecutor does not have to prove that you knew the minor’s age because it’s simply not part of the offense. (And on the flip side, you can’t testify that you didn’t know either.)

The third thing you need to understand about this offense is that statutory rape is completely different from forcible rape. For many years, I have griped to everyone who will listen that statutory rape should be re-named “Unlawful Sexual Intercourse with a Minor.” Okay, that doesn’t sound like something you would want to be charged with either, but the point is that people would understand that it’s different from the “rape” that most people think of, which is accomplished by “force or coercion.” Tenn. Code Ann. § 39-13-503.

Because the two offenses are different (Statutory rape being about sexual intercourse with a minor, and Rape being about sexual intercourse through force or coercion), the same act could actually qualify as both Statutory Rape and Rape at the same time if it might the elements of each offense.

[1] Forgive me for handling this content indelicately, but unfortunately these are the facts that we have to deal with. You might as well get used to the unsettling feeling of discussing your private conduct under the bright lights and judgmental attitudes of the courtroom; it’s just the nature of sex crime cases.

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