Isn't This Statutory Rape?
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Am Fam Physician. 2002 May 1;65(9):1950-1954.
Several pregnant teenagers in my practice are underage and have boyfriends older than 18. Isn't this statutory rape? Some of these patients are immigrants who prefer to keep a low profile, not calling the attention of local authorities to themselves or their boyfriends. In most cases, the sex is consensual, and the teens involved don't particularly care about legal fine points. However, I do, because I have often seen older boyfriends disappear, becoming “deadbeat dads.” If I reported these young men, maybe they would be forced to fulfill their obligations. On the other hand, reporting them might disrupt a potentially viable relationship. What is my obligation?
“Isn't this statutory rape?” our colleague asks. The answer is… “maybe.” Statutory rape laws were first enacted to protect minors from older predators. States differ considerably in the legal definition of statutory rape.1 For example, in California, where my practice is located, the age of consent for lawful sexual relationships is 18. If the age difference between the adult and the minor victim is more than three years, the charge is a felony; if three years or less, it is a misdemeanor. In Hawaii, the age of consent is 14. In other states, the age of consent ranges from 15 to 18 years, and many states have associated provisions that specify the level of offense depending on age differences and other factors.
Consideration of the legal fine points of statutory rape requires knowledge of specific state laws. Most states require that health care providers report injuries related to criminal violence regardless of the age of the victim, and four states (California, Colorado, Kentucky, and Rhode Island) require health professionals to report domestic violence.2 While reporting violent injuries is a well-accepted practice, there continues to be controversy about domestic violence laws (for example, what if the victim doesn't want the abuse reported?). Most experts, however, believe that unreported domestic violence simply breeds more violence and that it should be reported in most cases.
Whether statutory rape is considered violence may depend on the consent of the minor involved. From a strictly legal standpoint, minors are unable to give consent, which is exactly the reason statutory rape laws exist. However, in the majority of statutory rape cases, minors have given consent (legally or not) to having sex, limiting any potential criminal charge to that of domestic violence rather than the more serious charge of child abuse.
In fact, whether health care professionals are required to report consensual statutory rape to authorities really depends on whether the specific state considers it a type of child sexual abuse, which is reportable in all states. Unfortunately, laws on mandatory statutory rape reporting are confusing and often do not appear to be enforced even where they exist.3–5 California child abuse law requires health practitioners and other child-related professionals to report statutory rape only when the adult is 21 years or older and the minor is younger than 16 years.6 California law also specifically states that “the pregnancy of a minor does not, in and of itself, constitute a reasonable suspicion of child abuse.”6
Many people believe that enforcing statutory rape laws will decrease the teen pregnancy rate and the number of young families needing public support because of “deadbeat dads.” In fact, part of the 1996 federal welfare reform law specifically directed state and local governments to develop and enforce strict measures against statutory rape for those very reasons. California's response was a multimillion-dollar vertical prosecution program that allows the same prosecutor and investigator to remain on a case from beginning to end, while other states have developed their own programs.4
Even though more statutory rape convictions have resulted from these efforts, there is no real evidence that any of the programs have been the effective deterrents that Congress intended. In fact, there are still a lot of 16- and 17-year-olds on my hospital's labor and delivery unit. What these laws may have influenced is the unwillingness of pregnant teens to seek early prenatal care. While knowledge of statutory rape laws does not appear to prevent adult-minor relationships from occurring, fear of these laws may keep some young women from seeking prenatal care as a means of protecting their boyfriends from incarceration or deportation. Many professionals who work with pregnant adolescents are beginning to collect evidence supporting this concern.1,4
Another issue for family physicians is that statutory rape laws seem to conflict with the law as it applies to our practice and our understanding of informed consent for adolescents in other situations. Many teens have the capacity to participate in their own health care decision-making, even regarding serious and terminal illnesses. For example, teens are specifically able to consent for contraception, STD treatment, and pregnancy care in nearly all cases. The only illegality may be actually having sex.
The problem is that not all teens and situations are the same. Some teens are much more mature than others of the same age and are as able to consent to sex as an 18- to 20-year-old. At the same time, I think all of us would question a relationship between even the most mature 15-year-old and a 25- or 30-year-old. My own experience is that many teens of 16 and 17 know the emotions and consequences of having intercourse just as well as many teens of 18 and 19. In some of my Latina patients, becoming sexually active at a young age seems culturally acceptable and, at times, even encouraged within their culture. I, however, discourage it quite strongly. The question is whether enforcing laws against it is the right approach.
What is the right thing for a family physician to do when caring for a patient who has been involved in statutory rape (as defined by state law)? Not all young men are “deadbeat dads”—many work and are as responsible and dedicated to their partners and children as older men with older partners. Removing a source of financial and emotional support by incarcerating a young man in this situation would probably not help the young woman and her baby; in fact, it might possibly harm them.
If criminal violence has been involved, it must be reported to authorities. If domestic violence has been involved and the victim is a minor, I would report it as a case of child abuse even if the state does not have a mandatory domestic violence reporting law. If it is not violence, given the fact that mandatory statutory rape reporting laws are confusing and not necessarily enforced, I believe that a physician should report only after carefully considering several factors.
How mature is the minor? Is he or she in school and responsible in other matters? Does the minor have the capacity to consent to intercourse? Is she or he using contraception? Does the minor understand the consequences of pregnancy?
Is the couple's relationship truly consensual? What is the couple's age difference? Are they 16 and 36 (an older predator), or are they 16 and 19? Is the adult partner using physical or other power to take advantage of the minor?
If the patient is a pregnant minor, is her adult male partner emotionally and financially responsible and supportive? Is this a potential family in the making, or has the man already abandoned the patient?
Family physicians will probably not report most cases to authorities, believing instead that building patient trust and making appropriate referrals to social services and other allied health professionals are the right things to do for the patient and family involved.
1. Donovan P. Can statutory rape laws be effective in preventing adolescent pregnancy?. Family Planning Perspectives. 1997;29:30–440.
2. Rodriguez MA, McLoughlin E, Nah G, Campbell JC. Mandatory reporting of domestic violence injuries to the police. JAMA. 2001;286:580–583.
3. Madison AB, Feldman-Winter L, Finkel M, McAbee GN. Commentary: consensual adolescent sexual activity with adult partners—conflict between confidentiality and physician reporting requirements under child abuse laws. Pediatrics 2001;107(2). www.pediatrics.org/cgi/content/full/107/2/e16.
4. Oliveri R. Statutory rape law and enforcement in the wake of welfare reform. Stanford Law Review. 2000;52:463–508.
5. Leiter RA, ed. National survey of state laws. 2d ed. Detroit-Gale, 1999;313–30.
6. California Penal Code section 261.5 (Unlawful sexual intercourse with a minor) and California Penal Code sections 11165.1 and 11166 (Child Abuse and Neglect Reporting Act).
Please send scenarios to Caroline Wellbery, MD, at firstname.lastname@example.org. Materials are edited to retain confidentiality.
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