Underage Sex in the Criminal Justice Bill

UPDATE — THESE PROVISIONS WERE DISCARDED IN THE FINAL CONFERENCE REPORT

View the final conference package here.

One section of the broad criminal justice reform bill before the senate would take away the possibility that consensual sex among kids close-in-age could be prosecuted.

Under Massachusetts law, the penalty for having sexual intercourse with a child — even if no force or threat of force is involved — is imprisonment for any term of years up to life. With this penalty also comes the obligation to register as a sex offender.

Whoever unlawfully has sexual intercourse or unnatural sexual intercourse . . . [with]  a child under 16 years of age, shall be punished by imprisonment in the state prison for life or for any term of years or, except as otherwise provided, for any term in a jail or house of correction. A prosecution commenced under this section shall neither be continued without a finding nor placed on file.

Almost no one would quarrel with the imposition of long incarceration upon an adult who molests a grade school child.

The right penalty is less obvious when both parties are in their teens and they are close in age. We do not want to encourage underage sex, but the harm inflicted on all parties by criminal court involvement may exceed the limited deterrent benefit we may be achieving with our current law.

The law defines a child as anyone who has not reached their sixteenth birthday. If a high school senior and a high school sophomore have sex – with mutual consent — should the senior be punished by incarceration and registration as a sex offender?  Would the gender of the senior matter?

This is commonly referred to as the “Romeo and Juliet” question – not to romanticize teen sex, but to highlight the reality that prosecutors only bring these cases when the younger party’s parents vehemently disapprove of the relationship.

The proposed adjustment — developed by juvenile justice advocates — would create an exemption when both parties are close in age.

Whoever has sexual intercourse or unnatural sexual intercourse with a minor under 16 years of age and:

(i) the defendant is more than 4 years older than the minor;

(ii) the minor is under 15 years of age and the defendant is more than 3 years older than the minor;

or (iii) the minor is under 12 years of age and the defendant is more than 2 years older than the minor

shall be punished by imprisonment in the state prison for life or for any term of years or, except as otherwise provided, for any term of years in a jail or house of correction; provided, however, that a prosecution commenced under this section shall not be placed on file or continued without a finding.

The case in which most of us are least likely to favor the possibility of prosecution is two teens quite close in age — the almost-16-year-old and the 17 year old.

But interpreting the proposed language, the following more troubling cases would be left to the parents and schools to resolve without criminal court involvement:

  1. A 15-year-old high school sophomore and an 18 or 19 year-old college sophomore (not more than 4 years older).
  2. A 12-year-old 7th grader and a 15-year-old high school sophomore (not more than 3 years older).
  3. A 10-year-old 5th grader and a 12-year-old 7th grader (not more than 2 years older).

When the Senate considers this proposal, we could narrow the exemptions.  For example, we could require the parties to be not more than two years apart, instead of allowing wider ranges for older kids.

The question is not whether we are comfortable with children breaking boundaries at an early age.  Rather, the question is whether we think that the crushing penalties of incarceration and sex offender registration should be applied to young people engaging in these activities without force.  Of course, the younger the person, the less their ability to make any decision about sex, but that does apply to both young people.

I think I can support this provision in the bill even though it would decriminalize possibly harmful conduct that I want to discourage.  The alternative — criminal court involvement — is actually harmful for everyone involved, the younger party as well as the older one charged.  A parental response seems more appropriate.

But it’s admittedly a tougher call as the age gap widens and I’d be very interested in your perceptions of this issue.

For a survey of similar provisions in other states, follow this link.

For other provisions of the Senate Criminal Justice Package, follow this link.

Response to Comments, Friday, October 13, 930PM

Thank you to all who have weighed in here. It’s clearly a delicate subject, but it is good to know that the overwhelming majority generally support the direction that we are moving in. Will see how other Senators feel, but I’m hopeful we’ll keep this in the bill, possibly with minor adjustments.

I’ve closed the thread to comments, but please feel free to write me directly at [email protected] with any additional unexpressed thoughts or questions.

Published by Will Brownsberger

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

105 replies on “Underage Sex in the Criminal Justice Bill”

  1. Teenagers have immature brains!
    Protect them
    Predators are out there
    Our responsibility is to the innocent( even if they are not so innocent)

  2. I am strongly in favor. Criminalizing sex between teens is profoundly unjust. But the details are difficult, and limiting the allowed age difference to two years could be a good idea.

  3. Please prevent kids of similar ages from being criminalized for sex, especially since it is usually a parent using the state to enforce their value system. For 16 year olds, the topic belong at home or at most with a school counselor. Set a sliding scale for age differences or for the case when one of the two parties is mentally handicapped.

  4. Senator, you absolutely must support this provision!!! Children should not be penalized for engaging in physical relationship with each other. Sad but inevitable reality is: they are going to have to have sex, regardless of all parental warnings, threats, and sex education. While we should be discouraging such behavior, at the very least, we need to realize most of the time children are acting because of their hormones or because “mom & dad said no”. They simply don’t appreciate the complexity and multiple issues involved with sex, including the criminality of their actions.

    Massachusetts would be far from the first State to enact Romeo & Juliette laws, and it’s about time it updated its antiquated laws. When the sex between children is consensual, prison hardly needs to follow affecting their lives forever.

  5. Since teenage brains don’t mature until around 20, it would seem fair and most appropriate for our otherwise laissez-fair society to decriminalize all consensual sex between teenagers – even up to age 18 or 20. It’s absurd to apply adult criminal standards when these youngsters have very little awareness of the looming criminal penalties which can ruin their lives.

    Better to place the burden of punishment on the parents. If a single parent, who is having trouble controlling her/his kids, social work help for the adult as well as the youngster(s) is presumably available, and although somewhat burdensome to society, the time and money spent via social workers far exceeds the costs of incarceration.

    1. It is naive to think that parents can always control their teens. Teens by nature are rebellious. Same good parents – one kid shy and studying to be a doctor the other outspoken with tats and in a band. Sometimes nature trumps nurture.

      Just decriminalize this outdated Puritanical law. Get government out of the bedroom.

  6. I think that the proposal should be included in the bill as it stands. This obviously would only apply where there was clear mutual consent, but to ruin a young person’s life because of an agreed upon relationship within these boundaries is really unthinkable.

  7. No. I think kids close in age without coercion shouldn’t have criminal courts or penalties. This is where state-ordered counseling might work better. If the kids are four years apart and the older one is an adult, this is a different matter.

  8. Please act to decriminalize! It would be horrible to have a young person marked as a ‘sex offender’ for consensual acts with someone close in age.

  9. I think that any way you construct these laws will be imperfect. That said, this particular iteration feels… about right? I’m not terribly comfortable with a high school senior having sex with a high school sophomore, but that’s no justification for punishing one or both parties with a lifetime of restrictions. At a certain point you have to trust parents and teens to deal with things, and I think this does so without getting the law involved.

  10. Teen sex is something that will happen whether or not we like to admit it. As long as its consensual between the two parties I feel its something that is better left to parents/guardians to handle it without the need of a judge. Thank you for asking our opinion on the touchy subject and I fully support the bill.

  11. This is long overdue! Glad to hear the senate is working on it, and I strongly support it. The sex offender registry should not include cases like this. Consenting teens should not be punished by vengeful parents.

  12. I think the bill makes a good call. As you note, incarceration can be extremely damaging to all involved in these situations, traumatic for both teenagers (the one who faces incarceration and the one who knows that the actions of his/her parents led to the incarceration). Where there’s a gray area here, it’s good to let the decision-making be up to parents and schools who can come to appropriate solutions.

    Our laws need to both protect people and reflect reality. Teenagers will have sex–they have in the past and will in the future. We need to know how to both protect them from predators and protect them from overaggressive prosecutors.

  13. I definitely support this decriminalization. The age ranges seem reasonable, but adjustments to them based on expertise of people who interact regularly with teenagers would also seem reasonable. I remember thinking these laws were really detached from reality when I was in high school, and kinda scary.

  14. 10& 12 year old is too young. However, I would much rather see a stiffening of penalties for any adult who rapes a child or teen, or trick s them into sex.

  15. It seems to me there should be some sliding scale, though I admit I’m not quite sure how to structure it and account for all the factors.

    Should a 19yo be having sex with a 12yo? Absolutely not. A 19yo and a 16yo? That wasn’t unreasonable for a boyfriend and girlfriend 25 years ago. A 3 year age difference is completely normal once kids get to college age.

  16. If we’re talking about consensual relations, I think it’s good to have the age range as large as proposed in order to avoid the harm of criminal proceedings to all involved.

  17. I agree with the bill as outline above. Please, please decriminalize.

    We need courts that are actually willing to convict offenders of NON-consensual sex, not more parents screaming because they don’t like a perfectly consensual decision made by their 15-year-old.

  18. Not sure about ALL of the details, but this seems to be heading in a humane direction.

    Derrick Te Paske

  19. I am the parent of two teens who I am sure have never had sex…

    Teen sex is unfortunately not going to be legislated away. No matter how much you may believe it will. Having sex as teens should not make them criminals and ruin their lives.

    Simplify at three years across the board. Four is too far apart and increases the chance of undue influence by the older youth/young adult.

  20. It is complex. I agree with you that criminalizing and forceful registration is too tough for under 18 and I also know that some young men are not quite competent to make some decisions well. However, a range of punishment with discretion seems better. This is truly a difficult call but we should hope that a young person can be helped to learn appropriate behavior.

  21. 1. Get rid of the words “unnatural sex”.

    2. Burden needs to be on the older to establish that the proposed sexual act has been explained to the younger, understood by the younger and that the younger has unequivocally said “yes”. Use the age differences as proposed.

  22. I think that this proposal is a step in the right direction. As far as I can tell, it only applies to the narrow definition of consensual sex between two young people close enough in age for the balance of power to be equal and safe. Providing that is the case, I support this proposal.

  23. Once again, thanks for the discussion. What do teenagers say? Or maybe polling 24 year old would be interestig – they are far enough away from being underage that they might be reflective. And able to think about whether they felt forced into sexual behavior by older kids. Decriminalization definitely seems like a good direction. The 4 years seems too big a gap. a 15 year old and 19 year old likely have a power dynamic that is too difficult to determine if it truly was consensual. similarly, I may be showing my upbringing or age – but anyone having sexual intercourse under 12 doesn’t seem right no matter what the age difference. And along with this change, will there be alternatives – instead of prison and registering as a sex offender, what about alternatives to incarceration and counseling?

  24. It seems especially inappropriate to have these penalties when everybody is watching what they are watching on the internet all the time.

  25. I think this sounds reasonable, though I’m uncomfortable about any children 12 and under having sex, I’m well aware of the reality that kids experiment and none should go to jail for it. I think at that point we should be offering counseling to the family to make sure the children understand consent and pregnancy prevention and the parents don’t get out of control.

  26. I think the proposed adjustment is a good thing. I wouldn’t feel happy about any of the marginal situations you describe if one of my children were the younger (or older, for that matter) one. But criminal penalties in these cases would do no one good, and they could actually do lifelong harm to both parties.

    A related question is how consent is determined, especially at the younger ages.

  27. Kids at surprisingly young ages have sex. I wonder how many know the severity of the current penalties. It is really difficult to rationalize any of the numbers in the proposed legislation. But it feels that the 4- and 3-year requirements are too liberal. Two years seems better. But the existing penalties also seem much too severe.

  28. I am happy to see that the Senate is moving towards decriminalization of these truly consensual situations and that you are supportive. I think the allowable age differences between the consenting parties seem reasonable.

  29. Will,

    I am in favor of the changes in the law.
    What concerns me is that the number of instances of teenage sexual involvement is most likely far greater than the number brought to court because a parent wishes to punish a putative offender. Therefore I believe that counseling is to be preferred to incarceration, which would be grossly unfair punishment, unless the perpetrator is an adult.

  30. Should anyone under the age of 12 be having sex? I worry that anyone having sex at age 12/13 would have major repercussions. I would support the 2 year age gap for anyone 16 and under. That would mean a 16 year old and an 18 year old. A 19 year old would have to wait until someone is 17.

    It also seems to me that incarceration and sex offender registry seem very strong for 2 underage people. Aren’t there other options?

  31. Hi Will, As someone who believes that we live in a patriarchal society, girls are still in danger. So we need to be cautious in allowing sex in those cases mentioned. I also am very fearful about boys are still being educated in preschool where bullying is an issue. Adult men who are angry and then use guns that are too available to scare us with these massacres. Additionally I think that football is horrendous when the players cannot speak about treatment of people . So , finally , we need to raise boys and girls that are more peaceful. Thanks for your leadership.

  32. Decriminalization definitely seems to be the right call when we’re talking about consensual behavior between teens. And penalties that would follow your entire life.

  33. I favor the changes in the law. Decriminalization is definitely preferred. The existing penalties are too severe. These changes should apply to those who are heterosexual, homosexual, and transgender.

  34. I agree that from a criminal justice perspective, that the consensual crime here doesn’t justify the time. I think shortening the age separation from 4 to 3 would lighten my unease.

  35. I think that the language needs to be more clear even if one does not try to change the intention of the statute. I originally read that imprisonment would require
    ( 1 AND (2 OR 3) )
    but I think the statute only makes sense as
    (1 OR 2 OR 3)
    Therefore, I think that the wording should be ”
    Whoever has sexual intercourse with a minor and:
    (i) the minor is under 16 years of age and the defendant is more than 4 years older than the minor; or

    (ii) the minor is under 15 years of age and the defendant is more than 3 years older than the minor; or

    (iii) the minor is under 12 years of age and the defendant is more than 2 years older than the minor”

    I also have trouble with the phrase “unnatural sexual intercourse”. This phrase is undefined and strikes me as quite strange. What does it add to the statute? I omitted it.

    Furthermore, I would prefer “may” to “shall” in the last sentence.

  36. I strongly favor the provision but might narrow the age gaps a bit. Thank you for your fine work.

  37. Think more about the penalty than the crime. Consensual teenage sex is an exploration of life, much of it innocent, which does not rise to the level of incarceration, so we need counseling and other forms of guidance as well as more severe action. The court needs a fairly wide latitude in addressing the circumstances, including parenting skills.

  38. Interesting,
    If caught when I was a kid I would have been in jail. My now wife was 16 and I was 18. LoL it was her idea and we married when she was 18 and I was two weeks short of 21. Now married 50 years.
    Kids have raging hormones and things happen.
    David

  39. At 22 I had a 2-month consensual relationship with a same-sex partner who lied when we met and said he was 17. I had to check the laws to confirm the age of consent in MA was 16. We got as far as meeting each others’ parents but the age difference was too much and we parted ways. Our parents rolled their eyes but respected our youthful romance nonetheless. This was, oh, over 30 years ago. If anything, our culture has grown ever less approving.

    If we were each a year younger and the parents felt differently, I could be on that “scarlet letter” list myself. Instead, I’ve had a thriving career. The same cannot be said for one of my equally-talented friends who has a robbery conviction dating back to about the same time period. Background checks have prevented him from earning a decent living.

    Lifetime scarlet-letter registries hurt individuals and may hurt society as well. I’ll let your readers be the judge.

    1. Regarding the registry: I recommend the podcast “In the Dark,” which recounts the Jacob Wetterling abduction and murder case that prompted the introduction of sex registries in the US. It’s a fascinating story well told. Jacob’s mother was the original advocate for establishing registries, but today, she is opposed to them. Her idea of a reference database for law enforcement to assist in solving ongoing cases has morphed into a public blacklist that includes everyone from pedophiles to people who peed in public.

      I think The Senator is on the right track here.

  40. I favor these attempts to end severely criminalizing certain youthful behavior. The jails are already way too
    full of minor miscreants.
    But to set such exact numbers for age
    differences seems WAY TOO RIGID. Why
    not allow discretion and common sense
    to be exercised by the judicial system?

  41. Two kids who are close in age and are caught having consensual sex should not be treated as criminals. They need counseling and better supervision, not punishment, not shaming, and certainly not any type of incarceration or branding as sex offenders for the rest of their lives.

  42. Thank you Will for authoring and presenting these reasonable revisions to harsh laws.

    When my two sons were teenagers with girlfriends near their age who willingly consented, they were criminals. I worried about what could happen if the girls or their families got mad at our youthful sons who were technically Sex offenders.

    We have Puritanical and unreasonable laws on the books that over-prosecute sex behavior of young people. Children Have been branded sex offenders for life for playing doctor and other innocent childhood games.

  43. I can’t add much to the age-gap issue. There are a lot of thoughtful comments here (including yours) presenting a range of outcomes, almost all of which I could live with. What I would find harder to live with is if the bill founders because representatives, senators and/or parents choose to make huge political hay over where to draw the lines. I agree with the commenters who want to delete the undefined “unnatural sexual intercourse.” In the perfect world I’d like to be able to (but suspect I can’t) avoid parents pushing for prosecution as a vendetta or for discriminatory reasons like the male might be a muslim. In that same world I’d like prosecutors not to pursue cases for political purposes. And I don’t know enough about criminal law or practice to evaluate the last clause (after the “provided, however) to opine whether the terms are adequately defined (commenced? placed on file?) or what mischief is enabled or avoided by its inclusion.

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