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. 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.

  2. 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.

  3. 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.

  4. 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.

  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. 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.

  7. 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.

  8. 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.

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

Comments are closed.