A Theory of Criminal Victimization
Kleinfeld, Joshua, Stanford Law Review
b. Child sex
Let's zero in on one aspect of the legislative scheme more closely. Within the variety of special criminal protections for our three victim groups, a large proportion has to do with sexual crimes involving children. And within that body of law, the central place goes to the crime of having sex with a minor-statutory rape as it is often called for older children and child rape for younger ones (though the terms are variously used). Statutory or child rape is the paradigmatic victimization crime, the first, most obvious, and most powerful example when we think of criminal law extending special protection to the vulnerable or innocent. It was for engaging in sex with young children that six state legislatures sought to extend the death penalty to nonhomicide crimes despite unfavorable Supreme Court precedent, (114) and when the Supreme Court struck down those statutes as cruel and unusual, the controversy centered on innocence and vulnerability to a considerable degree. (115) So let's examine more closely the statutes governing this form of wrongful sex.
There is a conventional story about why sex with children is criminal that does not give special weight to children's innocence or vulnerability. The conventional story holds that the ordinary logic of rape is that it is sex without consent; children can't consent; therefore sex with children constitutes rape. (116) What is distinctive about children on this account, what leads to their special legislative treatment, isn't their innocence or vulnerability, but their reduced agency. Yet this story, however reasonable in principle, does not hold up when one actually looks at the penal codes. Consent alone cannot be driving the doctrine.
The California Penal Code, for example, defines rape as sex without consent, where the lack of consent is due to force, threats, unconsciousness, etc., and the punishment is three to eight years. (117) Now, if the usual theory of statutory and child rape were right, it would be easy to imagine the statute. It would simply include minority among the other factors that vitiate consent and prescribe the usual punishment: three to eight years. But that is not how the statutory scheme works. Statutory and child rape in California is generally either not as bad as adult rape or much worse (see Figure 1, below). The same is true in New York (see Figure 2) and Texas (see Figure 3).
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Three features of these statutory schemes stand out. First, nonforcible sex with a young child (twelve or thirteen or younger) is typically subject to harsher penalties than adult forcible rape. Second, nonforcible sex with a midrange teenager (thirteen or fourteen to seventeen or eighteen) is typically subject to milder penalties than adult forcible rape. Third, the gap between the age of the offender and the age of the victim typically matters. (121) It is these three facts that the conventional story, focusing exclusively on consent, cannot explain.
To start with, if consent were the only issue, and if a fifteen- or sixteen-year-old cannot consent, why should sex with them be treated more mildly than other nonconsenting sex--than adult forcible rape? Perhaps consent theorists might try to stand their ground in these cases by proposing some notion of partial or impaired consent. But then, second, why should sex with very young children be treated more severely than ordinary rape? It's true that young children cannot consent to sex, but it's not as though they consent even less than the adult who is dragged kicking and screaming from a parking lot. Both the adult and the young child do not consent at all--yet the penalties are different. And finally, if consent were the only issue, why should it matter whether the offender is forty years old or just eighteen himself?. Why should age gaps matter? If a sixteen-year-old is incapable of consent, he or she is equally incapable of consent either way. …