Survey of states regarding statutory rape

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The state policy counts should be taken as approximate, since the table below has not been peer reviewed.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

StateStatuteExemption?Allowed gap for 17 year oldAllowed gap for 16 year oldAllowed gap for 15 year oldAllowed gap for 14 year oldAllowed gap for 13 year oldAllowed gap for 12 year old
AlaskaAS 11.41.434Yes44442-33
ColoradoCRS 18-3-402YesN/A1010444
DelawareSection 769Yes121310456
HawaiiSection 707-730YesN/AN/A5500
Illinois720 ILCS 5/11-1.20YesN/A51-52-53-50
IndianaIC 35-42-4-3YesN/AN/A3-64-789
LouisianaRS 14:80YesN/A12340
MaineSection 253Yes455500
New Hampshire632-A:3YesN/AN/A4440
New Jersey2C:14-2YesN/AN/A4440
New Mexico30-9-11YesN/A44440
New York130.30YesN/A54444
North Carolina14-27.25YesN/AN/A6664
North Dakota12.1=20-07No
OklahomaOS 21-45-1112Yes123400
OregonORS 163.425Yes450000
Rhode Island11-37-6YesN/AN/A3400
South Carolina16-3-655YesN/AN/A3400
South Dakota22-22-1YesN/AN/A3330
WashingtonRCW 9A.44.079Yes444433
West Virginia61-8B-5YesN/AN/A1232
Prepared by Aja Watkins, Intern, Office of State Senator Brownsberger

Published by Will Brownsberger

Will Brownsberger is State Senator from the Second Suffolk and Middlesex District.