Saturday, June 14, 2008

Should Sex With a Minor Always Be Major?

by Katherine Scardino

Despite the recent controversy over the polygamist sect raid in Eldorado, Texas, pretty much all of us would agree on one thing: fifty-something-year-old men should not be having sex with minors. But what if that male was another teen, who happens to be of "legal" age, say eighteen or nineteen?

In Texas, an individual may be prosecuted for Aggravated Sexual Assault under certain circumstances. One of those reasons is if the victim is under the age of fourteen. There is no "escape" clause; there is no "except for" clause.

For instance, if you are a young man and you have sexual intercourse or other forms of sexual contact with a girl younger than fourteen years, you are strictly liable for that offense.

Try this hypothetical: You are a young man, age nineteen, sleeping in your bed one Saturday morning. Your phone rings. It is a police officer asking you to come to the police station and make a statement. "Why?" you ask. You are then informed that there has been an allegation of aggravated sexual assault against you. Yikes! You say. What in the hell is this all about?

Like most young people today, this 19-year-old has a MySpace page. About a year ago, he received a message from a young girl who, after several back and forth Internet conversations, told him she was sixteen. Even though sixteen years of age is still a minor, our law tells us that it’s OK for a boy to have a relationship with a minor if there is no more than a three-year age difference. Of course, he had no clue about that at that time, but has since learned of this law.

So, after a week or so of chatting on MySpace, a lot of "sex-talk," this 19-year-old makes arrangements with the "16-year-old" to meet at a movie theater in the area where she lives with her parents and sister. They meet and have sex. He goes back to his life. The young girl calls him many times after the meeting to start a "relationship." The boy was not interested. The sexual assault allegation comes next.

Do not misinterpret. Neither I, nor anyone I know, condones young men having sex with young girls. But, we have to be realistic and recognize that, first of all, most 13-year-old girls do not look thirteen years old. They are much more sophisticated than I ever thought about being at the age of thirteen. Most of them wear makeup straight from Neiman Marcus makeup counter (maybe circuitously through their mother’s supply, but nevertheless, adult makeup). And, their attire mimics Britney Spears, Lindsay Lohan and other Hollywood wannabees. While I certainly sympathize with the parents of a 13-year-old girl--even one who appears at first glance to be older than thirteen--I also sympathize with the parents of this young man. He did not do what I always told my sons to do: When in doubt, ask to see her driver’s license.

The above situation is one of the scariest for any young man. He is technically guilty. Period. If this young man went to trial on the charge of Aggravated Sexual Assault and was found guilty, as he assuredly would be, he would be sentenced to a term in prison, either 5 to 99 years, or for Life. Upon release, he then would have to register as a Sex Offender for the rest of his life.

As a registered sex offender, he would most likely forever be denied employment or the ability to live in an apartment. If he was able to get probation for his "offense," he would still have to register as a lifetime sex offender--same problems. (This is precisely the reason a 17-year-old Atlanta boy chose to do a ten-year sentence rather than plead guilty to an offense consisting of consensual oral sex with a 15-year-old. He was released after serving two years.)

As a defense attorney, I am trying to convince the prosecutor that to ruin this young man’s life based on circumstances similar to the above would not be just. The girl is at fault morally and ethically--but not legally. A "child" is unable to give consent to sexual contact of any kind.

But consent is not all of the issue. It is the world we live in today. We have the Internet where our young people live. They are able to be in constant contact not only with their friends, but with anyone who is also as "Internet active" as they are. Anyone, anytime.

In Texas, the State Legislature almost changed this law during their last session, but a revision of this law did not pass. In my opinion, this is one of the failures of our criminal justice system. This law is just not right.


Leah said...

This is an excellent post and I agree completely Katherine. The other issue to me is that hormones and sexual desire don't wait for a girl or boy's eighteenth birthday to begin raging. To me it is a physiologically natural ocurrance and because of that alone, the statutory rape laws should be rewritten to accommodate situations such as this.

Paralegal Sandy said...

I've been thinking these laws are unjust for a long time. Mother nature makes 13 and 14 year old young ladies old enough to be mothers and a hundred years ago it was normal for 14 year old women to be married to 18 or 19 year old men. We as a society have just decided it was wrong, so that's how it is now. Society makes some of these situation much worse with it's so called modern day laws.
But then I think a lot of the laws today are incredibly lacking intelience. They just simply don't make good sense.

Stan Schneider said...

The issue is more problematic. If a young man meets a girl in a bar and she has a drink in her hand, the young man might presume that the girl is 21 because in Texas, as in many states, the drinking age is 21. If the couple leaves and has sex, that young man can be prosecuted for sexual assault if the girl is actually under 17. The ironic fact is that to be prosecuted for possession of an automatic weapon in this country, the government most prove not only that the person possessed a weapon but also that the person knew that the weapon was automatic or a machine gun. To be guilty of unauthorized use of a motor vehicle, a person has to knowingly operate a motor vehicle as well as know that the vehicle is stolen. Yet, a young man is guilty of sexual assault if he has sex with a girl younger than 17 even though she lies about her age, has proof that corroborates that lie and consents to the sex. It does not seem quite fair.

Leah said...

It isn't fair.

I was 15, almost 16 the first time I had sex and legally it was statutory rape. Morally and otherwise it was not because I knew what I was doing and I wanted to do it. Fortunately nobody ever found out about it and I certainly would have denied it if they had, just to keep him from getting in trouble.

katherine scardino said...

Thank you all for your comments. This law has been a thorn in my side since I started practicing law in 1984. I hate it. It is inherently unfair, and prosecutors always become smug because they know defense lawyers do not have much of a chance. We even have laws that define what/how we can cross examine the accusor in these kinds of cases. Let's all write our legislators!

Cynthia Hunt said...

I couldn't agree with you more Katherine. I always warned my younger brother when he was this age to be very careful. It's especially unfair when so many of the young girls today are the aggressors. This is certainly not justice for the young men caught in the situation you describe.

A. said...

I tried to hold my tongue and stay out of this one, but I certainly do not agree. I think the thing that pushed me over the edge is that you want to rewrite the laws as to how you cross examine rape victims? Wow, where's end to this. Give an inch and you try to take a mile.

I can hardly believe that everyone is nodding in agreement here...

Not to mention the fact that while you may have instructed your sons to check their dates DL's, before sex, perhaps you should think about teaching them to keep their pants on instead.

Leah said...

Where does the post say that about cross examining rape victims?

A. said...

Katherine says:
"We even have laws that define what/how we can cross examine the accusor in these kinds of cases. Let's all write our legislators!"

It's in her above comment Leah.

"Accusor" is another word for rape victim. I know you all know this, I'm just sayin'...

Paralegal Sandy said...

A – You ask where this ends. There isn't going to be an end because there are obviously two sides here, two opinions. There were not enough facts given to establish that we were discussing a rape as in a man forcing himself on a woman in a brutal violent way against her will. I don't condone that and definitely believe someone like that needs to be convicted. We are discussing young people having sex. In this situation the girl consented and even wanted it to happen for all that we know. There are some very manipulative adolescent young women out there. Perhaps a 16 year old is having a troubled home life and just wants to get out of her situation with her parents that are telling she can't stay out late, smoke dope, etc. She sees a chance to perhaps trap a young 18 or 19 year old into marrying her and taking her away if she can get pregnant. She lies to him about her age because she can certainly pass for 18 years old. Should this boy have to pay the rest of his life because of a trap? And this is just one scenario. We could cross reference these opinions endlessly and never be convinced to agree on one side being the right or only side. So this is just another one of those things we have to agree to disagree on.

A. said...

If our beginning basis of thought is an assumption that young girls are slutty liars, we take a giant step backwards as a society.

The lying young lady is certainly an exception, rather than the rule. to hear Katherine's take on this subject, leads me to believe that she's highly out of touch.

But this seems to be the way it is with many defense attorney's--an accusor is always evil, and a client is always the victim of some wrongful and most certainly false, accusation.

Give me a break.

I do happen to think that a 19 year old boy is, or should be, more sophisticated than a girl of 14, 15, or even 16.
I don't care what brand of cosmetics they use, to brand them villians, as a whole, is wrong.

Leah said...

In what way sophisticated, A? Sexually, mentally, physiologically??

I didn't take her post the way you did.

In my particular case I [I was almost 16, he was 20] was in love and so was he. Legally, it was a crime. Morally, I was doing what I wanted to do. He didn't take advantage of me in any way. To have prosecuted him would have been an injustice. Not to mention, it would have devesgtated me.

Paralegal Sandy said...

A - If you think the majarity of teen-aged American girls are Snow White then you are the one that is out of touch. In my opinion society HAS taken a giant step backwards in many ways. Again it all comes down to opinions and we all have one.
You seems to have your brain inside a box. There are always two sides to every story. The trick is to find out which side is the truth.

A. said...

Paralegal Sandy;
I'm sorry but I know many teen-age girls and boys. And I'm well aware of the attitudes and perceptions that are out there. You can never pigeon hole an entire segment of society. As for my brain being inside a box--whatever.

From your comments, I'd guess you don't know many teenagers, personally. And from Katherine's blog post, I'd guess her to be a mother of sons (no daughters) because I've heard that same attitude come from others that tend to villianize girls, based on the stories of their precious sons.

Hey, and it's just my opinion Para, take it or leave it. But my opinion is based on far more than theory, can you say the same?

Katherine's desire to take a no-holds bar approach to rape victim cross examination is what has me twisted here anyway.

jigmeister said...


I have seen more than one grand jury no-bill the kind of case you are talking about. Usually they are the cases where the parents of the young girl are pushing the issue and consent is not an issue. Prosecutors don't like these cases but have often been forced into prosecution because both the family of the victim and the cops remind you, that its the law. Frankly, most cases of that nature are never reported.

A mistake of fact defense ought to be available (in very limited circumstances) and I am not sure that most prosecutors or TDCAA would argue with you.

Anonymous said...

I have had several of these cases, as a prosecutor, and hate them just as much as you do, Katherine. And what makes it even more difficult is the parents of the young girl who haven't been paying attention to what their child does, and then want the criminal justice system to make up for their mistakes as parents. I even had one mother call the suspect a "predator" when her child sought out the suspect, and it was consensual....

katherine scardino said...

A - you would disagree with me no matter what I said. But, I certainly did not intend my comments to refer to every Agg Sex Assault case - only those that involve a young girl in a consensual relationship with a young boy. What I am saying with regard to "changing the laws" is that each case should be analyzed individually - we should not have a law that makes it a crime regardless of the facts of each case.

Anonymous said...

I'm new here and have read a few posts with comments:

@a. - Are you always pissed at the world, or maybe you just need some salty food, chocolate, and Midol. That's the last I'll @ddress a. -- sometimes I can't help myself when it comes to trolls.

I have no children, live in Texas, which has slightly more flexible laws than other states regarding minors having consensual sex, but even Texas laws are still too harsh against young male teens, not to mention other states that give no flexibility at all.

If the both teens are older than 14, and there's less than two-years difference, there shouldn't be any criminal charges for consensual sex. And because I know for a fact that girls younger than 14 are having sex (otherwise they wouldn't be having babies with their boyfriends visiting the maternity ward), perhaps there should be a one-year difference between the ages of 12-14.

And the way the laws are written now, we're expecting boys 15+ to be capable of making adult-based decisions regarding believing whether a young'ish teen girl -- that's dressed and made-up to the nines -- is lying about her age, or is carrying a Photoshopped ID.

My mother sat on a jury with a young girl that lied to a boy about her age, and she even admitted to consenting, but reported the boy as revenge for something she was mad about. According to my mother, her and all the jurors felt she was so extremely sleazy and trashy that she seduced the teen boy, then busted him for not marrying her. Even though the jury KNEW they had sex, with him being more than 2 years older, the jury found him not guilty, despite the clear letter of the law. The judge did not overturn it.

I'm guessing the only way to change things is to prosecute a Texas elected official's minor son for statutory rape, then maybe we'll see some changes.


Anonymous said...

A - do you think this young man should have done a 10 year sentence? He is the poster child for the flaw in the law:

A. said...

Anonymous--you have no idea who I am, but I'll tell you, I'm far less of a troll than you. Your insults are rude and me are based on nothing. At least I specify what is said, when I take issue with it.

If Katherine can't take someone disagreeing with her (which she obviously can), then she has no business putting herself out there on an opinionated forum.

And wow. You have such a vast range of experience and knowledge , being that your mother sat on a jury. I can see how you're much more qualified than I, to have an opinion...

btw Katherine--You get it wrong when you speak in absolutes. I have actually agreed with you before. Look back and see.

A. said...

BTW Anon--If you actually think I'm going to open your link and exchange thoughts with you, after your baseless insult, you're wrong.

Anonymous 2 said...

A - You made an understandable assumption, based on my posting anonymously. I am the reader that left that link, but I am NOT the same "anonymous" in earlier comments. The note I left with the link and a question was my first comment. I genuinely want your opinion as it is a case worthy of discussion. I am not attempting to sway you. I welcome your thoughts as well as others in this thread, like levi. Thank you. I have now distinguished myself as "anonymous 2" for future comments.