Underage Sex in the Criminal Justice Bill

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.