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Constitutionality of Statutory Rape Laws

NCJ Number
UCLA Law Review Volume: 27 Issue: 3 Dated: (February 1980) Pages: 757-815
R Eidson
Date Published
59 pages
The history and rationale behind statutory rape laws is discussed; the constitutionality of these laws is examined in terms of equal protection and due process, and sex-role stereotypes are highlighted.
The crime of statutory rape has traditionally been understood as consensual intercourse with a female under a particular age. Within the past few years, a majority of States have substantially revised their statutory rape laws, and the United States Supreme Court has recently struck down gender-based State laws that embody some aspects of sex-role sterotypes in 'Orr v. Orr' (1979). Traditionally, statutory rape laws are designed to protect young girls from consensual, nonmarital sexual intercourse. To achieve this objective, the State threatens males with criminal penalties for engaging in intercourse with underage females. Underlying the dual discrimination involved in protecting only females and punishing only males is the assumption that nonmarital intercourse is harmful for young females but not for males. Dual discrimination in such laws is justified on the grounds of preventing pregnancy and sexual exploitation. However, these justifications are in direct conflict with the fourteenth amendment guarantees of equal protection under the law. Despite this obvious conflict and the fact that several courts have expressed grave doubts about the constitutionality of statutory rape laws, only one court has actually held such a law unconstitutional in the case of 'Meloon v. Helgemore' (1977). It is suggested that a sensible aternative to traditional statutory rape law would be a gender-neutral statute with a conclusive presumption of incapacity that coincides with the approximate onset of puberty. To protect older children who may be immature, a State could appropriately set the age of consent at 16 or even 18 if the defendant would be allowed to rebut the presumption of incapacity to consent. Footnotes are included in the article.