This article was provided exclusively to the New York Analysis of Policy and Government by Judge John H. Wilson (Ret.)
If you are a member of Facebook, you may have noticed a series of posts and memes regarding a new law in the State of California that is alleged to have legalized pedophelia. In the environment that currently exists in social media, it is next to impossible to separate fact from fiction without sometimes-extensive research. Lucky for you, being a loyal reader of the New York Analysis of Policy and Government, here are the facts you need to know on this issue:
In California, the age of consent for sexual activity is 18 years old. To have sex with someone below the age of consent is known as “statutory rape.” It doesn’t matter if the defendant didn’t know that the victim was below the age of consent, or if the victim was not coerced or forced in any way – the mere fact that the victim is below the age of consent makes the defendant “strictly liable” for the offense.
Each state has its own age of consent – for instance, in South Dakota, the age of consent is only 16. South Dakota also has what is known as a “Romeo and Juliet” law – that is, an age difference between the parties that can serve to reduce or mitigate the charge. The language from SD Codified Law Section 22-22-7 states that “(a)ny person, sixteen years of age or older, who knowingly engages in sexual contact with another person…if the other person is under the age of sixteen years is guilty of a Class 3 felony. If the victim is at least thirteen years of age and the actor is less than five years older than the victim, the actor is guilty of a Class 1 misdemeanor.”
The application of the “Romeo and Juliet” statute is often a complicated matter, involving a minimum age for the victim, and a minimum age for the defendant. This chart provides guidance to the laws of the various states in this area. Arkansas is an example of a state with a “Romeo and Juliet” law – in Arkansas, “(s)tatutory rape…is defined as sexual intercourse where in which the victim is less than 14 years of age and the accused is more than three years older…(i)f the accused is not more than three years older, that’s an affirmative defense to prosecution.”
Not all states have a “Romeo and Juliet” law – New York does not, and neither does California. Thus, the difference in age between the victim and the defendant is not a defense or modifying factor to a charge of statutory rape in California.
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Apparently, in California, in “cases involving a young adult and a minor where vaginal intercourse took place, a judge has discretion whether to place the person convicted of statutory rape on the sex offender registry.” California State Senator Scott Weiner, a Democrat from San Francisco, believed this discriminated against gay defendants since “(t)he judge does not have any discretion when the case involves anal or oral sex.”
In an effort to correct this disparity, Senator Weiner introduced SB 145, which the Senator describes as “an anti-discrimination law…(i)t ends discrimination against LGBTQ people on the sex offender registry… (a) 19-year-old has a 17-year-old girlfriend and they have sex, that is statutory rape. But the law right now says that the judge does not have to put that 19-year-old boy on the sex offender registry because of the kind of sex that they were having…(b)ut if it’s a 19-year-old boy having sex with a 17-year-old boyfriend, the judge must put that 19-year-old onto the sex offender registry, even if it was completely consensual, even if they were boyfriends, even if there was nothing coercive or predatory about it.”
Thus, there is no change in California’s statutory rape laws – sex with a person under the age of 18 is still a crime, regardless of the difference in age between the victim and the defendant.
The Report Concludes Tomorrow