Where the Senate Romeo and Juliet would proposal ranks us
Noone condones underage age sex. The question is where should be the bright line below which sex is per se a criminal offense. The version of the proposal approved on the Senate floor provides that sex with a person under the age of 16 will remain criminal unless the person has reached their 13th birthday and the older person is more than two years older than they are.
Based on the analysis below, even with the proposed senate changes, Massachusetts will remain well in the mainstream of policy in other states, more restrictive than the majority on many dimensions.
- As in half of the states in the country, in Massachusetts, sex with anyone under 13 will remain illegal in all cases, regardless of the age of the older person. Other states do not criminalize close-age sex with persons under 13 in all cases.
- For 13 year olds, Massachusetts will allow a close age exception of up to 2 years. 16 states do not allow a close age exception for 13 year olds. Most other states allow a wider close age exception than we propose to allow.
- For 14 year olds, Massachusetts will allow a close age exception of up to 2 years. Only 5 states do not allow a close age exception for 14 year olds. Most other states allow a wider close age exception than we propose to allow.
- For 15 year olds, Massachusetts will allow a close age exception of up to 2 years. Only 4 states do not allow a close age exception for 15 year olds. Most other states allow a wider close age exception than we propose to allow.
- Over 16, under current and proposed law in Massachusetts, sex is not per se illegal. Some other states use higher cutoffs, but generally include close-age exceptions.
The state policy counts should be taken as approximate, since the table below has not been peer reviewed.
An intern in my office, Aja Watkins has completed an analysis of age exemptions in other states. Her table appears below.
She provided the following explanation of the table:
Regarding the formatting of the table: Many states’ exemptions are in multiple statutes; however, I have only ever listed one (the most important or the first of a series). “N/A” means that someone this age does not need a close-in-age exemption due to being old enough. “0” in a column corresponding to one of the younger ages means there is no close in age exemption for someone that young. A range of years means that the age difference is differently exempted for different offenses, or depending on the age of the offender.
Almost all states have some kind of exemption. However, they are of different types, and the most common type is that the severity of the offense is reduced (but not eliminated) when the perpetrator and victim are close in age. For example, many states make it a misdemeanor instead of a felony when the two parties are within a certain age.
Perhaps the most surprising thing is that several states use the age of the offender, rather than an age difference between the offender and victim. This leads the allowed age gap to actually increase as the child gets younger; for an example of this, see Missouri among many others (in this case, the offense changes if the offender is younger than 21). It is also the case here that when the offender must be older than a certain age to have committed the crime (e.g. over 18), actors younger than that won’t be convicted. This de facto allows certain consensual sexual relations between two parties who are both very young.
Finally, note that there are often other age-related restrictions on rape or sexual assault, for example when the offender is a teacher at the children’s school or an adult member of the child’s household the offense can become more severe. I have not included this information in any way here.
Survey of Close Age Exemptions to Statutory Rape Laws
| State | Statute | Exemption? | Allowed gap for 17 year old | Allowed gap for 16 year old | Allowed gap for 15 year old | Allowed gap for 14 year old | Allowed gap for 13 year old | Allowed gap for 12 year old |
|---|---|---|---|---|---|---|---|---|
| Alabama | 13A-6-67 | Yes | N/A | 2 | 3 | 4 | 5 | 6 |
| Alaska | AS 11.41.434 | Yes | 4 | 4 | 4 | 4 | 2-3 | 3 |
| Arizona | 13.1407 | Yes | 2 | 2 | 2 | 0 | 0 | 0 |
| Arkansas | 5-4-124 | Yes | 3 | 3 | 3 | 3 | 3 | 3 |
| California | 261.5 | Yes | 3 | 3 | 3 | 3 | 3 | 3 |
| Colorado | CRS 18-3-402 | Yes | N/A | 10 | 10 | 4 | 4 | 4 |
| Connecticut | 53a-70 | Yes | N/A | N/A | 3 | 3 | 3 | 2 |
| Delaware | Section 769 | Yes | 12 | 13 | 10 | 4 | 5 | 6 |
| Florida | 794.011 | Yes | 1-7 | 2-8 | 2 | 3 | 4 | 5 |
| Georgia | 16-6-3 | Yes | N/A | 2 | 3 | 4 | 0 | 0 |
| Hawaii | Section 707-730 | Yes | N/A | N/A | 5 | 5 | 0 | 0 |
| Idaho | 18-6101 | Yes | 1 | 2 | 0 | 0 | 0 | 0 |
| Illinois | 720 ILCS 5/11-1.20 | Yes | N/A | 5 | 1-5 | 2-5 | 3-5 | 0 |
| Indiana | IC 35-42-4-3 | Yes | N/A | N/A | 3-6 | 4-7 | 8 | 9 |
| Iowa | 709.2-709.4 | Yes | N/A | N/A | 3 | 3 | 0 | 0 |
| Kansas | 21-5507 | Yes | N/A | 3 | 4 | 4 | 0 | 0 |
| Kentucky | 510.06 | Yes | 1-5 | 2-5 | 3-6 | 7 | 5 | 6 |
| Louisiana | RS 14:80 | Yes | N/A | 1 | 2 | 3 | 4 | 0 |
| Maine | Section 253 | Yes | 4 | 5 | 5 | 5 | 0 | 0 |
| Maryland | 3-303 | Yes | N/A | N/A | 3-6 | 4-7 | 4-5 | 0 |
| Michigan | 750.520e | Yes | N/A | N/A | 5 | 5 | 5 | 0 |
| Minnesota | 609.342 | Yes | N/A | N/A | 4 | 4 | 3 | 3 |
| Mississippi | 97-3-65 | Yes | N/A | N/A | 3 | 3 | 2 | 2 |
| Missouri | 566.034 | Yes | N/A | 5 | 6 | 7 | 8 | 9 |
| Montana | 45-5-503 | Yes | N/A | 2 | 3 | 4 | 3 | 3 |
| Nebraska | 28-319 | Yes | N/A | N/A | 4 | 5 | 6 | 7 |
| Nevada | 200.366 | Yes | 1 | 2 | 2 | 0 | 0 | 0 |
| New Hampshire | 632-A:3 | Yes | N/A | N/A | 4 | 4 | 4 | 0 |
| New Jersey | 2C:14-2 | Yes | N/A | N/A | 4 | 4 | 4 | 0 |
| New Mexico | 30-9-11 | Yes | N/A | 4 | 4 | 4 | 4 | 0 |
| New York | 130.30 | Yes | N/A | 5 | 4 | 4 | 4 | 4 |
| North Carolina | 14-27.25 | Yes | N/A | N/A | 6 | 6 | 6 | 4 |
| North Dakota | 12.1=20-07 | No | ||||||
| Ohio | 2907.04 | Yes | N/A | N/A | 4 | 4 | 5 | 0 |
| Oklahoma | OS 21-45-1112 | Yes | 1 | 2 | 3 | 4 | 0 | 0 |
| Oregon | ORS 163.425 | Yes | 4 | 5 | 0 | 0 | 0 | 0 |
| Pennsylvania | 3122.1 | Yes | N/A | N/A | 10 | 10 | 10 | 0 |
| Rhode Island | 11-37-6 | Yes | N/A | N/A | 3 | 4 | 0 | 0 |
| South Carolina | 16-3-655 | Yes | N/A | N/A | 3 | 4 | 0 | 0 |
| South Dakota | 22-22-1 | Yes | N/A | N/A | 3 | 3 | 3 | 0 |
| Tennessee | 39-13-509 | Yes | 4-10 | 4-10 | 4-10 | 4-10 | 4-10 | 0 |
| Texas | 22.011 | No | ||||||
| Utah | 76-5-401.1 | Yes | 7-10 | 7-10 | 3 | 4 | 1-4 | 1-5 |
| Vermont | 13-72-3252 | Yes | N/A | N/A | 4 | 0 | 0 | 0-5 |
| Virginia | 18.2-63 | Yes | N/A | N/A | 3 | 3 | 3 | 0-3 |
| Washington | RCW 9A.44.079 | Yes | 4 | 4 | 4 | 4 | 3 | 3 |
| West Virginia | 61-8B-5 | Yes | N/A | N/A | 1 | 2 | 3 | 2 |
| Wisconsin | 948.02 | Yes | N/A | 2 | 3 | 4 | 5 | 0 |
| Wyoming | 6-2-314 | Yes | 4 | 4 | 4 | 3 | 3-4 | 0-4 |