Indiana Law Journal

Volume 87 | Issue 2 Article 1

Spring 2012

The Paradox of Statutory Rape

Russell L. Christopher
University of Tulsa College of Law, [email protected]

Kathryn H. Christopher
[email protected]

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Recommended Citation
Christopher, Russell L. and Christopher, Kathryn H. (2012) "The Paradox of Statutory Rape," Indiana Law Journal: Vol. 87: Iss. 2,
Article 1.
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 The Paradox of Statutory Rape
∗ **
RUSSELL L. CHRISTOPHER & KATHRYN H. CHRISTOPHER

What once protected only virginal girls under the age of ten now also protects
sexually aggressive males under the age of eighteen. While thirteenth-century
statutory rape law had little reason to address the unthinkable possibility of chaste
nine-year-old girls raping adult men, twenty-first-century statutory rape law has
failed to address the modern reality of distinctly unchaste seventeen-year-old males
raping adult women. Despite dramatically expanding statutory rape’s protected
class, the minimalist thirteenth-century conception of the offense remains largely
unchanged—intercourse with a juvenile. Overlooked is the new effect of this
centuries-old offense—a sexually aggressive seventeen-year-old raping an adult
now exposes the adult rape victim to statutory rape liability. By being raped, the
adult rape victim satisfies the minimal elements of the offense, lacks any defenses,
and thereby commits statutory rape of her juvenile rapist. Therefore, the offense of
statutory rape criminalizes being raped; that is, it criminalizes being the victim of
rape. Paradoxically, while the offense of rape prohibits committing rape, the
offense of statutory rape prohibits being raped. What the law of rape seeks to
protect us from—being raped—the law of statutory rape punishes us for.

INTRODUCTION ...................................................................................................... 506

I. STATUTORY RAPE LIABILITY .............................................................................. 514
A. OVERVIEW ............................................................................................... 514
B. ELEMENTS OF STATUTORY RAPE ............................................................. 517
C. DEFENSES SPECIFIC TO STATUTORY RAPE ............................................... 520
D. GENERAL DEFENSES ................................................................................ 522
II. STATUTORY RAPE LAW CRIMINALIZES BEING RAPED ...................................... 530
A. RAPE BY THREAT OF PHYSICAL FORCE .................................................... 530
B. RAPE BY COERCION ................................................................................. 532
C. RAPE BY FRAUD ....................................................................................... 534
D. RAPE OF THE MENTALLY DISABLED ........................................................ 536
E. CONCLUSION ............................................................................................ 537
III. EXCULPATING THE ADULT RAPE VICTIM ......................................................... 538
A. WHY ADULT RAPE VICTIMS DO NOT DESERVE LIABILITY ...................... 538
B. CONSEQUENCES OF CRIMINALIZING BEING RAPED .................................. 539

∗ Professor of Law, The University of Tulsa College of Law.

** J.D. 1995, [email protected]. Thanks to Catherine Carpenter, Jack Chin,
Michelle Madden Dempsey, Joshua Dressler, Donald Dripps, James Fischer, Reid Fontaine,
John Gardner, Stephen Garvey, Jonathan Herring, Carissa Hessick, Jeremy Horder, Laura
Hoyano, Kay Levine, Ken Levy, Arnold Loewy, Catharine MacKinnon, Joan McGregor,
Marc Miller, Jeffrie Murphy, Michelle Oberman, Peter Oh, Carolyn Ramsey, Carol Steiker,
Shlomit Wallerstein, and Peter Westen for their helpful comments. Brandon Bickle, Whitney
Davis, Eric Reynolds, Judith Small, Joshua Solberg, and Samantha Walley provided
excellent research assistance. The University of Tulsa College of Law provided a generous
research grant. We also thank participants in workshops of a previous version of this Article
at The University of Arizona College of Law, Oxford University (Exeter College),
Southwestern Law School, and The University of Tulsa College of Law.
506 INDIANA LAW JOURNAL [Vol. 87:505

C. A POSSIBLE SOLUTION ............................................................................. 542

D. OBJECTIONS ............................................................................................. 543
CONCLUSION.......................................................................................................... 549

INTRODUCTION
1
If a juvenile rapes an adult, does the adult thereby commit statutory rape?
Intercourse obtained by force, coercion, or fraud that negates a victim’s consent as
well as intercourse with a factually consenting juvenile who is too young to legally
2
consent easily qualify as types of rape. The former is understood as rape and the
latter as statutory rape. But how are we to understand the situation of a juvenile,
who cannot legally consent, obtaining intercourse by, for example, force that
negates the consent of an adult victim? Both engage in intercourse, but neither is
consenting. Despite statutory rape law dating back to at least the thirteenth century
3 4
in England and the colonial era in America, this simple question has apparently
never been raised by a litigant, court, or commentator. What has gone overlooked
for centuries is that, by virtue of being raped by a juvenile, the adult rape victim
commits statutory rape of her juvenile rapist. This Article demonstrates that the
offense of statutory rape criminalizes being the victim of rape and argues that the
offense of statutory rape is fundamentally overbroad.
5
Consider the case of Henyard v. State. Alfonza Smalls approaches Ms. Lewis
6
and her two daughters (ages three and seven) in the parking lot of a grocery store.
7
Revealing a gun in his waistband, he orders them into her car. Alfonza’s friend,
Richard Henyard, drives all of them to a deserted location outside of town and
8
orders Ms. Lewis out of the car. Fearing for her life and that of her daughters, Ms.
9
Lewis complies without resistance. She engages in intercourse with Richard and
10
Alfonza on the trunk of her car while her daughters remain in the back seat. Ms.
Lewis then is ordered to sit on the ground where she is shot at close range four

1. The term “statutory rape” refers to the criminal offense of engaging in intercourse
with a person who is below a specified age of consent. See, e.g., State v. Blake, 777 A.2d
709, 713 (Conn. App. Ct. 2001) (“All a person need do to violate [Connecticut’s statutory
rape law] is to (1) engage in sexual intercourse (2) with a person between the ages of thirteen
and fifteen, and (3) be at least two years older than such person.”). Varying by jurisdiction,
the age of consent is as young as fourteen and as old as eighteen. See, e.g., ARK. CODE ANN.
§ 5-14-103(a)(3)(A) (Supp. 2011) (fourteen years of age); CAL. PENAL CODE § 261.5(a)
(West 2008) (eighteen years of age).
2. See infra Part II.A–D.
3. E.g., State v. Yanez, 716 A.2d 759, 763 (R.I. 1998) (“[S]tatutory-rape was
legislatively created in England during the thirteenth century . . . .”).
4. See, e.g., CAROLYN E. COCCA, JAILBAIT: THE POLITICS OF STATUTORY RAPE LAWS IN
THE UNITED STATES 11 (2004) (“Colonial American statutory rape law basically imported
[the English statutory] language.”).
5. 689 So. 2d 239 (Fla. 1997).
6. Id. at 242.
7. Id.
8. Id. at 242–43.
9. Id.
10. Id. at 243.
2012] THE PARADOX 507

11
times in the head, face, and neck. Rolling her unconscious body onto the side of
the road, Richard and Alfonza drive off with the daughters and kill them with
12 13
single shots to the head. Ms. Lewis miraculously survives. In addition to murder
and other charges, Richard and Alfonza are convicted of rape with the use of a
14
firearm.
By the same act of intercourse by which Ms. Lewis was the victim of a
nightmarish rape, did she herself commit a crime? Yes. Alfonza Smalls was
fourteen-years-old. Ms. Lewis has committed statutory rape. But, one might object,
Ms. Lewis, as a victim of rape, did not consent to the intercourse and thus cannot be
criminally liable for statutory rape for that very intercourse. However, a statutory
rape perpetrator’s lack of consent is not a defense nor is her consent an element of
15
the offense.
Ms. Lewis satisfies the explicit elements of statutory rape. As one court
succinctly explains, “Statutory rape is a strict liability crime. The only elements the
Commonwealth must prove are (1) sexual intercourse . . . with (2) a child under
16
sixteen years of age.” Most jurisdictions also add a third element: the perpetrator
17
is at least y years of age (typically eighteen) and/or at least z years older than the
18 19
victim (typically at least three years older). Ms. Lewis satisfies these elements:
she engaged in intercourse with a fourteen-year-old, and, as a mother of a
seven-year-old, is presumably over eighteen years of age and sufficiently older than
20
Alfonza.
Despite satisfying the explicit elements of statutory rape, one might argue that
surely the victim of a horrific rape, like Ms. Lewis, fails to satisfy some implicit
element. Even with strict liability (as to the element of the victim’s age), statutory
rape may nonetheless include the implicit mens rea element of intention (as to the

11. Id.
12. Id.
13. Id.
14. Id. at 243–44, 254.
15. And this is true not only for statutory rape but for rape as well. The issue of consent
seems relevant only because we generally analyze a case of (nonstatutory) rape by
considering whether the victim consented. In rape, the victim’s nonconsent may be an
element of the offense or the victim’s consent may be a defense. Michelle J. Anderson,
Reviving Resistance in Rape Law, 1998 U. ILL. L. REV. 953, 1000–01 (referencing statutes
incorporating each approach). But in both rape and statutory rape law the perpetrator’s
consent or lack of consent is irrelevant. See, e.g., In re Jessie C., 565 N.Y.S.2d 941, 944
(N.Y. App. Div. 1991) (“Although [the respondent is] . . . incapable of consenting to sexual
intercourse . . . respondent is not a victim. Respondent is charged with
perpetrating . . . [statutory rape]. Simply stated, respondent’s consent is not an essential
element of the crime.” (citations omitted)).
16. Commonwealth v. Knap, 592 N.E.2d 747, 748–49 (Mass. 1992) (citation omitted).
17. See, e.g., State v. Yanez, 716 A.2d 759, 766 n.5 (R.I. 1998) (identifying a
perpetrator being “over the age of eighteen (18) years” as a requisite element).
18. See supra note 1.
19. E.g., COCCA, supra note 4, at 33 (noting that the requisite age span between
perpetrator and victim is generally three or four years).
20. Henyard v. State, 689 So. 2d 239, 242 (Fla. 1997). The facts of the case do not
reveal Ms. Lewis’s age.
508 INDIANA LAW JOURNAL [Vol. 87:505

intercourse) and the actus reus element of a voluntary act. While she clearly lacked
the desire to engage in intercourse with Alfonza, she just as clearly did so
voluntarily and intentionally because she preferred that to increasing the risk that
21
she (or her daughters) would be killed. As the Supreme Court declared, conduct
under threat or “duress normally does not controvert any of the elements of the
offense itself.”22 “[T]he defendant’s illegal act is voluntary, indeed,
23
intentional . . . .” The threat may make the choice difficult, but actions under
24
threat are nonetheless chosen, and “[a]ll chosen acts are voluntary.” As Joshua
25
Dressler explains, “a coercive threat creates the intent; it does not negate it.” As a
result, adults being raped by juveniles, like Ms. Lewis, satisfy both the explicit and
implicit elements of statutory rape.
Defenses also fail to supply a solution. While Ms. Lewis and similar adult
victims would qualify for defenses specific to statutory rape—that the perpetrator
lacks a sexual interest or that the juvenile is unchaste—those defenses are not
26
widely recognized, if at all. While the general defenses of necessity, duress, and
self-defense are widely recognized, Ms. Lewis and similar adult victims fall
through the cracks of the various doctrinal requirements. Necessity requires, in
some jurisdictions, that defendants choose the lesser evil in an emergency situation
27
emanating from a natural rather than a human source. While Ms. Lewis’s decision
to commit statutory rape in an attempt to save herself and her two children is
clearly the lesser evil, the source of the emergency is human (the two juveniles)
rather than natural. Unlike necessity, duress is applicable to human threats.
However, duress, in some jurisdictions, is inapplicable as a defense to offenses
28
against the person (including statutory rape). Unlike duress, self-defense is
applicable to offenses against the person. However, self-defense is inapplicable, in
29
part, because self-defense requires the use of physical force. Ms. Lewis did not
use physical force. Unlike self-defense, necessity may not require the use of

21. For further discussion of how actions undertaken under the threat of physical force
are considered voluntary and intentional, see infra notes 183–87 and accompanying text.
22. Dixon v. United States, 548 U.S. 1, 6 (2006).
23. Id. at 24 (Breyer, J., dissenting).
24. Claire O. Finkelstein, Duress: A Philosophical Account of the Defense in Law, 37
ARIZ. L. REV. 251, 281 (1995).
25. JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW 307 (5th ed. 2009) (emphasis in
original).
26. See infra Part I.C.
27. E.g., WIS. STAT. ANN. § 939.47 (West 2005) (limiting necessity to “[p]ressure of
natural physical forces”); United States v. Contento-Pachon, 723 F.2d 691, 695 (9th Cir.
1984) (denying necessity because defendant was “coerced by human, not physical forces”).
28. E.g., Moore v. State, 697 N.E.2d 1268, 1273 (Ind. Ct. App. 1998) (affirming
defendant’s conviction because “the defense of duress does not apply to offenses against
persons”); Joshua Dressler, Exegesis of the Law of Duress: Justifying the Excuse and
Searching for Its Proper Limits, 62 S. CAL. L. REV. 1331, 1342 (1989) (noting that courts are
divided as to the availability of duress to rape).
29. E.g., People v. Richards, 869 N.Y.S.2d 731, 737 (N.Y. Crim. Ct. 2008) (construing
New York’s self-defense provision as “limited to situations of actual . . . force”); MODEL
PENAL CODE § 3.04(1) (Official Draft and Revised Comments 1985) (requiring defendant’s
“use of unlawful force”).
2012] THE PARADOX 509

30
force. But this only brings us back full circle—as discussed above, necessity is
also foreclosed. No defense quite seems to fit; being raped fails to fit into any
defense box. As a result, Ms. Lewis and other similar adult rape victims commit
statutory rape of their juvenile rapists.
How could we have created such a paradoxical crime—the crime of being
raped? Briefly tracing the evolution of statutory rape supports a speculative
conjecture. In short, while the class of persons protected by statutory rape laws
(that is, the class of potential statutory rape victims) has dramatically expanded
over time, the requisite conduct constituting the offense has remained unchanged.
England’s first statutory rape offense, enacted in 1275, protected only females
31
under the age of twelve. Almost three hundred years later, during the reign of
32
Elizabeth I, the protected class was reduced to females under the age of ten. The
33
American colonies largely imported the English statutory scheme. “The idea
behind such laws at the time was less about . . . [protecting the female from sexual
exploitation], and more about protecting white females and their premarital
34
chastity—a commodity—as property . . . .” As Justice William Brennan
explained, “Because their chastity was considered particularly precious, those
35
young women were felt to be uniquely in need of the State’s protection.” From
36
this “exaltation of female chastity,” a statutory rape victim being unchaste,
37
promiscuous, or not a virgin evolved into a defense that was soon “codified in
38
every state.”
Not surprisingly, colonial-era jurisdictions had little reason to craft statutes
precluding adults from statutory rape liability when raped by chaste girls of nine.
The prospect of a chaste nine-year-old girl raping an adult was (and perhaps still is)

30. See WAYNE R. LAFAVE, CRIMINAL LAW 539 n.2 (4th ed. 2003) (noting that when an
actor avoids self-defense force by committing a nonforcible offense, the appropriate defense
is necessity).
31. Statute of Westminster I, 1275, 3 Edw. 1, c. 13 (Eng.) (“The King prohibiteth that
none do ravish, nor take away by force, any Maiden within Age [under twelve] . . . .”);
COCCA, supra note 4, at 10 (“[The 1275 statute criminalized] sexual intercourse with a
female under 12 . . . .”).
32. The Common Informers Act, 1576, 18 Eliz., c. 7 (Eng.) (lowering the age of consent
to ten); 4 WILLIAM BLACKSTONE, COMMENTARIES *212 (reporting that the statute
criminalized “carnally knowing or abusing any woman child under the age of ten years”
(citing 18 Eliz., c. 7)).
33. E.g., Frances Olsen, Statutory Rape: A Feminist Critique of Rights Analysis, 63 TEX.
L. REV. 387, 403 (1984) (“Statutory rape laws came to America with the common law of
England.”).
34. COCCA, supra note 4, at 11 (citation omitted).
35. Michael M. v. Superior Court of Sonoma Cnty., 450 U.S. 464, 494–95 (1981)
(Brennan, J., dissenting).
36. Rita Eidson, Comment, The Constitutionality of Statutory Rape Laws, 27 UCLA L.
REV. 757, 761 (1980).
37. E.g., Michelle Oberman, Turning Girls into Women: Re-Evaluating Modern
Statutory Rape Law, 85 J. CRIM. L. & CRIMINOLOGY 15, 25–26 (1994) (“[B]y extending legal
protection only to virgins, early statutory rape law [allowed] . . . a man to have intercourse
with a non-virgin . . . .”).
38. COCCA, supra note 4, at 11.
510 INDIANA LAW JOURNAL [Vol. 87:505

inconceivable. But over time, the age of consent rose (to as high as eighteen
39
today), gender-specific statutes gave way to gender-neutral statutes extending
40 41
protection to male juveniles, and the promiscuity defense was abolished. As a
result, the new protected class includes not only chaste nine-year-old girls, but also
sexually aggressive seventeen-year-old males. Of course, the prospect of a member
of the new protected class raping an adult is entirely conceivable and has
exponentially increased (as compared to a member of the original protected
42
class). Despite the dramatically different identity and capabilities of the new
protected class, the essential and exceedingly minimalist conception of statutory
rape—intercourse with a juvenile below the age of consent—has not changed. And
this conception has become so ingrained over the centuries that the need for change
has been obscured. As a result, we have overlooked the new effect of this
centuries-old offense—a sexually aggressive underage male (perhaps as old as
seventeen) raping an adult now exposes the adult rape victim to statutory rape
liability.
The scope of this problem is quite broad. The law of statutory rape criminalizes
being the adult victim of not only forcible rape but virtually every type of rape
43
perpetrated by a juvenile. And adults raped by juveniles are not only subject to
statutory rape liability but are prosecuted as well. For this and other reasons,
44
prosecutorial discretion, as will be discussed below, is not a satisfactory solution.
45
Consider Garnett v. State, a case read by many first-year law students. The
defendant, Raymond Garnett, was a twenty-year-old mentally disabled man,
46
reading at a third-grade level, with an IQ of fifty-two. “Raymond attended special
education classes and for . . . [a] time was educated at home when he was afraid to
return to school due to his classmates’ taunting. [Unable to] understand the duties
of the jobs given him, he failed to complete vocational assignments; he sometimes
47
lost his way to work.” Raymond met Erica Frazier through a friend, and the two
48
began talking over the telephone. One night Raymond visited Erica’s house, and
Erica opened her bedroom window and “directed him to use a ladder to reach her
49
window.” After willingly engaging in intercourse, they spent the night together

39. See supra note 1.

40. See infra notes 86–88 and accompanying text.
41. See infra notes 123–25 and accompanying text.
42. For an account of a recent case of a fifteen-year-old male raping a woman on a busy
street in “broad daylight” that drew national media attention, see Ohio Teen Told Police He
Raped Woman Along Road, HUFFINGTON POST (Feb. 3, 2010, 12:14 PM),
http://www.huffingtonpost.com/huff-wires/20100203/us-roadside-rape/ (“A teen accused of
raping a woman along a street in Ohio in broad daylight told detectives a day later that he
walked up behind her, grabbed her neck and raped her.”).
43. See infra Parts II.B–D. And juveniles are routinely held criminally liable for serious
crimes such as rape. See, e.g., Henyard v. State, 689 So. 2d 239 (Fla. 1997); infra note 96.
44. See infra Part III.D.4.
45. 632 A.2d 797 (Md. 1993).
46. Id. at 798.
47. Id. at 798–99.
48. Id. at 799.
49. Id. at 800.
2012] THE PARADOX 511

50 51
before Raymond departed in the morning. Erica was thirteen years old. Despite
conceding “that it is uncertain to what extent Raymond’s intellectual and social
retardation may have impaired his ability to comprehend imperatives of sexual
morality,” the Maryland Court of Appeals affirmed his conviction for statutory
52
rape.
But the roles of perpetrator and victim could be reversed. Rather than Raymond
the perpetrator and Erica the victim of statutory rape, Erica arguably committed
53
second-degree rape of Raymond under Maryland’s criminal code by engaging in
54
“intercourse with another if the victim is a mentally defective individual.”
As illustrated by Henyard and Garnett, the law of rape and the law of statutory
rape are in conflict. This conflict has far-reaching practical and conceptual
consequences disproportional to the relative infrequency of adults prosecuted for
55
statutory rape of their juvenile rapists. First, the conflict subverts the very design
of the law of rape. What the law of rape seeks to protect us from—being raped—the
law of statutory rape subjects us to punishment for. Why enact one law that protects
us from the very conduct that another law punishes us for? That is, why enact one
law that prohibits committing rape and another law that prohibits being raped?
Second, it deters rape victims from seeking the protection of the law. In order to
report and press charges for being raped by a juvenile, a rape victim must
self-incriminate to a charge of statutory rape.
Third, the conflict threatens to undermine hard-fought reform efforts to abolish
the resistance requirement. Traditionally, a rape conviction could not be secured
56
without evidence that the victim resisted. Perhaps the signature achievement
effected by the dramatic transformation of rape law over the last thirty years has
57
been the large-scale elimination of the resistance requirement in response to the
58
devastating critiques by feminists and rape reformers. For example, referring to

50. Id. at 799.

51. Id.
52. Id. at 802, 805.
53. Id. at 816 n.17 (Bell, J., dissenting) (“Indeed, in this case there is every reason to
question whether the victim was the petitioner [Raymond], rather than the minor female
[Erica].”). Catherine Carpenter similarly observes that “students who read Garnett in my
first year Criminal Law class often view Raymond as the victim.” Catherine L. Carpenter,
The Constitutionality of Strict Liability in Sex Offender Registration Laws, 86 B.U. L. REV.
295, 318 n.106 (2006).
54. MD. CODE ANN., CRIM. LAW § 3-304(a)(2) (LexisNexis Supp. 2011).
55. For examples of adult rape victims prosecuted for statutory rape of their juvenile
rapists, see supra notes 45–54, infra notes 201–07, 270–84 and accompanying text.
56. E.g., Anderson, supra note 15, at 962 (“Rape law has traditionally emphasized a
woman’s physical resistance . . . . At common law, the state had to prove beyond a
reasonable doubt that the woman resisted her assailant to the utmost of her physical capacity
to prove that an act of sexual intercourse was rape.” (footnote omitted)).
57. See, e.g., CATHARINE A. MACKINNON, SEX EQUALITY: RAPE LAW 802 (2001) (“All
United States jurisdictions have abolished explicit resistance requirements, whether statutory
or common law.”).
58. See, e.g., Commonwealth v. Berkowitz, 609 A.2d 1338, 1345 n.5 (Pa. Super. Ct.
1992) (“The effect of the reforms [eliminating the resistance requirement] was dramatic.”);
JOAN MCGREGOR, IS IT RAPE?: ON ACQUAINTANCE RAPE AND TAKING WOMEN’S CONSENT
512 INDIANA LAW JOURNAL [Vol. 87:505

resistance requirements as “primitive”59 and having “no place in a modern system

60
of jurisprudence,” the California Supreme Court interpreted California’s rape
61
provision as abolishing any resistance requirement.
But by criminalizing being raped by a juvenile, the offense of statutory rape
reintroduces (covertly and presumably unintentionally) a resistance requirement.
By prohibiting being raped by a juvenile, statutory rape law imposes a duty on an
adult not to be raped by a juvenile. To fulfill this duty, an adult must prevent or
resist being raped by a juvenile. Failure to prevent or resist being raped by a
juvenile may result in statutory rape liability. Thus, the offense of statutory rape
contains a hidden resistance requirement.
62 63 64
As “pernicious,” “malicious,” and “disastrous” as the traditional resistance
65
requirement has been, and still is in some states, statutory rape law’s hidden
resistance requirement is worse. Under the traditional resistance requirement, a rape
66
victim failing to resist risks the perpetrator’s acquittal. In contrast, under statutory
rape law’s hidden resistance requirement, failing to resist risks criminal liability for
statutory rape. If the traditional resistance requirement placed victims in the “cruel
67
dilemma” of “[r]esist and die; submit and live [but risk acquittal of your
68
rapist],” statutory rape law’s hidden resistance requirement places adult victims in
a dilemma that is yet crueler: resist and die; submit and live, but risk criminal
liability for statutory rape of your juvenile rapist.
Statutory rape’s hidden resistance requirement potentially places rape law
reformers, courts, and legislatures in a dilemma. How can one attack rape law’s
traditional resistance requirement as being impermissible while defending the status
quo of statutory rape law that makes resistance legally obligatory? Consistency
mandates that opposition to the less-worse traditional resistance requirement entails

SERIOUSLY 28 (2005) (“Feminist legal theorists have criticized standard doctrines in rape
law, pointing out that . . . the requirements of physical resistance . . . are not rational for the
legitimate ends of criminal law and are blatantly unfair to women.”).
59. People v. Barnes, 721 P.2d 110, 117 (Cal. 1986) (quoting People v. McIlvain, 130
P.2d 131, 135 (Cal. Ct. App. 1942)).
60. Barnes, 721 P.2d at 121.
61. Id. (noting that one purpose was relieving victims of “the potentially dangerous
burden of resisting an assailant in order to substantiate allegations of forcible rape”).
62. Commonwealth v. Rhodes, 510 A.2d 1217, 1223 n.11 (Pa. 1986).
63. MCGREGOR, supra note 58, at 31 (describing resistance standards that both
endangered the victim and induced acquittals of the defendant).
64. Id. at 41.
65. See, e.g., David P. Bryden, Redefining Rape, 3 BUFF. CRIM. L. REV. 317, 358 n.161
(2000) (“Currently only a few states use the term ‘resistance’ anywhere in their rape
statutes.”).
66. E.g., People v. Barnes, 721 P.2d 110, 117 (Cal. 1986) (noting that “courts refused to
uphold a conviction of rape by force where the complainant had exhibited little or no
resistance”); SUSAN ESTRICH, REAL RAPE 41 (1987) (“The resistance
requirement . . . afforded courts a convenient vehicle to reverse convictions . . . .”).
67. People v. Dorsey, 429 N.Y.S.2d 828, 831 (N.Y. Sup. Ct. 1980) (observing that
resolving this “cruel dilemma . . . was not demanded of the victim of any other crime”
(citation omitted)).
68. Sally Kalson, Rape Wisdom Doesn’t Mean Neglect Wits, PITTSBURGH
POST-GAZETTE, June 6, 1994, at C1.
2012] THE PARADOX 513

opposition to the status quo of statutory rape law with its even-worse hidden
resistance requirement. Conversely, the price for defense of statutory rape’s status
quo is endorsement of the traditional resistance requirement.
The law of statutory rape also suffers unfortunate consequences. First,
prohibiting being raped by a juvenile undermines the moral authority and rational
coherence of the offense. That statutory rape law imposes a duty to resist on a
victim of a horrific rape, like Ms. Lewis, borders on the absurd. With her two
young children present and a gun pointed at her head, the law of statutory rape
commands Ms. Lewis to physically resist her juvenile rapist under threat of
statutory rape liability for her. The apparent, but presumably unintended, message
of statutory rape law is that Ms. Lewis must risk her own life and employ physical
force against her juvenile rapist in order to protect him from her sexual exploitation
of him. But surely, if there is any sexual exploitation, it is not by her of him; rather,
it is by him of her. Second, punishing both adults who consensually engage in
intercourse with juveniles and adults who do so nonconsensually (because raped by
a juvenile) dilutes the stigmatizing (and thus deterrent) effect of statutory rape. If
innocent rape victims like Ms. Lewis and Mr. Garnett commit statutory rape, what
degree of stigma attaches to the commission of the crime? Third, application of
69
statutory rape’s strict liability rule regarding the age of the victim to adults who
commit statutory rape of their juvenile rapists demonstrates the illegitimacy of
strict liability’s rationale. The arguably plausible rationale of the strict liability rule
is that by choosing to engage in intercourse with one who might turn out to be
underage, one culpably assumes the risk that one’s partner will turn out to be
70
underage. Even so, the rationale’s implausibility is exposed when applied to adult
victims of rape: one does not culpably assume the risk of being raped and thus one
does not culpably assume the risk that one’s rapist will turn out to be underage.
After supplying an overview of statutory rape law, Part I presents the elements
of the offense of statutory rape and defenses that might preclude adults’ liability for
statutory rape of their juvenile rapists. It demonstrates that such adult victims
satisfy both the explicit and implicit elements. Neither specific nor general defenses
satisfactorily preclude statutory rape liability. No individual offense element or
defense suffices.
Part II applies these offense elements and defenses to specific examples of four
types of rape perpetrated by a juvenile against an adult: (i) rape by threat of
physical force, (ii) rape by coercion, (iii) rape by fraud, and (iv) rape of a mentally
disabled person. In at least some cases of each of these types of rape, no
combination of offense elements and/or defenses satisfactorily precludes liability
for statutory rape. When an adult is raped by a juvenile, the offense of statutory
rape imposes criminal liability on the adult for the same intercourse by which the
adult is a victim of rape.
After explaining why statutory rape liability is undeserved for adult rape victims
and identifying how statutory rape law’s fundamental overbreadth subverts the
purposes and principles of the laws of both rape and statutory rape, Part III
proposes a possible solution. The solution redefines the scope of a statutory rape

69. See infra notes 90–95 and accompanying text.

70. See infra note 242 and accompanying text.
514 INDIANA LAW JOURNAL [Vol. 87:505

victim’s traditional incapacity to consent by building on a recent doctrinal shift in

statutory rape law. Finally, this Part anticipates and counters possible objections.
This Article concludes that statutory rape has paradoxically become the crime of
being raped.

I. STATUTORY RAPE LIABILITY

After sketching a brief overview of the law of statutory rape, this Part presents
both the explicit and implicit elements of the offense, defenses specific to statutory
rape, and defenses of general application. It demonstrates that some adults raped by
juveniles satisfy both the explicit and implicit elements of statutory rape, but satisfy
neither specific defenses nor general defenses. By being raped by a juvenile, an
adult commits statutory rape of her juvenile rapist.

A. Overview
71
Statutory rape is perhaps the only offense thought to be overbroad by both its
perpetrators and victims. Perpetrators find it overbroad because the offense can be
committed despite the absence of any force (or fraud or coercion), despite the
72
presence of the victim’s factual consent, despite the absence of the defendant’s
73
mens rea, and despite the presence of the defendant’s honest and reasonable
74
mistake that the victim is above the age of consent. Some victims find it
overbroad because the offense goes so far overboard in protecting their negative
sexual autonomy (freedom from unwanted intercourse) as to violate their positive
75
autonomy (freedom to engage in wanted intercourse). Victims who view

71. While popularly known as statutory rape, most jurisdictions use other terms to
designate the offense. See Catherine L. Carpenter, On Statutory Rape, Strict Liability, and
the Public Welfare Offense Model, 53 AM. U. L. REV. 313, 314 n.2 (2003) (observing that
statutory rape is variously termed as “sexual abuse of a minor,” “sexual conduct with a
minor,” “felony carnal knowledge of a juvenile,” and “statutory sexual seduction,” among
others). As Wayne LaFave explains, “[T]his variety of rape came to be known as ‘statutory
rape,’ apparently because it was originally engrafted onto the common law by statute.”
LAFAVE, supra note 30, at 874.
72. See, e.g., State v. Anthony, 516 S.E.2d 195, 197 (N.C. Ct. App. 1999) (contrasting
the nonforcible and (factually) consensual intercourse involved in statutory rape with rape
“by force and against the will” of the victim); Kay L. Levine, The Intimacy Discount:
Prosecutorial Discretion, Privacy, and Equality in the Statutory Rape Caseload, 55 EMORY
L.J. 691, 708 (2006) (“The law against statutory rape . . . is meant to target the sex partners
of older teens . . . who engage in factually consensual sex (i.e., they do not employ ‘force’
within the meaning of the rape law).”).
73. Many jurisdictions define statutory rape without explicitly requiring mens rea. See
infra notes 90–95 and accompanying text. And the majority of jurisdictions have explicitly
ruled that mens rea is not required as to the element of the victim’s age. See infra note 95
and accompanying text. But mens rea may implicitly be required as to the element of
intercourse. For a discussion of this possibility, see infra Part I.B.2.
74. See infra notes 90, 95 and accompanying text.
75. See, e.g., Arnold H. Loewy, Statutory Rape in a Post Lawrence v. Texas World, 58
SMU L. REV. 77, 87 (2005) (suggesting that minors might understandably feel “that the very
2012] THE PARADOX 515

76
themselves as near-adults (eighteen is the age of consent in some jurisdictions), if
not full adults, are deemed legally incapable of engaging in what they may
consider, and what the Supreme Court hinted, to be a fundamental human right—
77
factually consensual intercourse that causes no harm.
The articulated rationale for the offense of statutory rape is that persons below
the age of consent lack the maturity and judgment to give sufficiently informed
78
consent. Although juveniles may factually consent to intercourse, the law of
79
statutory rape treats them as incapable of giving legal consent. While the offense

nature of sexual privacy requires that the participant and not the State choose [her sexual
partners]”); Kate Sutherland, From Jailbird to Jailbait: Age of Consent Laws and the
Construction of Teenage Sexualities, 9 WM. & MARY J. WOMEN & L. 313, 331 (2003)
(“Sixteen-year-old Amanda Winkler was jailed for contempt of court for refusing to testify
against her lover [who was twenty-one and who she subsequently married] when he was
tried for having consensual intercourse with her.”); Susannah Miller, Note, The Overturning
of Michael M.: Statutory Rape Law Becomes Gender-Neutral in California, 5 UCLA
WOMEN’S L.J. 289, 296–97 (1994) (summarizing feminist arguments that “statutory rape
laws violate a female minor’s right to privacy and to consent to sexual intercourse”). For a
discussion of positive and negative sexual autonomy, see ALAN WERTHEIMER, CONSENT TO
SEXUAL RELATIONS 125 (2003). For a similar discussion of the two sides or facets of sexual
autonomy, see STEPHEN J. SCHULHOFER, UNWANTED SEX: THE CULTURE OF INTIMIDATION
AND THE FAILURE OF LAW 99 (1998).
76. See supra note 1.
77. Based on Lawrence v. Texas, 539 U.S. 558, 567 (2003), which found a right of
liberty for adults to engage in consensual intercourse with other adults in the privacy of the
home, Arnold Loewy argues that statutory rape laws unconstitutionally violate a minor’s
right to privacy. Loewy, supra note 75, at 81–88. In a previous case, Justice Brennan
suggested that statutory rape laws, by criminalizing factually consensual intercourse, might
not survive a constitutional challenge based on the right to privacy:
[O]ur cases would not foreclose such a privacy challenge. . . . We have
stressed, however, that “[i]f the right of privacy means anything, it is the right
of the individual, married or single, to be free from unwarranted governmental
intrusion into matters so fundamentally affecting a person as the decision
whether to bear or beget a child.”
Minors, too, enjoy a right of privacy in connection with decisions affecting
procreation. Thus . . . it is not settled that a State may rely on a
pregnancy-prevention justification to make consensual sexual intercourse
among minors a criminal act.
Michael M. v. Superior Court of Sonoma Cnty., 450 U.S. 464, 491 n.5 (1981) (Brennan, J.,
dissenting) (emphasis in original) (citation omitted) (quoting Eisenstadt v. Baird, 405 U.S.
438, 453 (1972)). Unlike the U.S. Supreme Court, the Florida Supreme Court did not merely
hint, but actually held, that the prosecution of an underage juvenile for factually consensual
intercourse with another underage juvenile did violate the defendant’s constitutional right to
privacy under the Florida state constitution. B.B. v. Florida, 659 So. 2d 256, 259 (Fla. 1995).
78. See, e.g., MACKINNON, supra note 57, at 871 (explaining that minors cannot legally
consent “because they may not know what they are doing or what is being done to them, or
the meaning of what they are asked or told to do; partly because they will do what adults ask,
whether they want to or not”).
79. See, e.g., N.Y. PENAL LAW § 130.05(3) (McKinney 2009) (“A person is deemed
incapable of consent when he or she is: (a) less than seventeen years old . . . .”); People v.
Giardino, 98 Cal. Rptr. 2d 315, 325 n.6 (Cal. Ct. App. 2000) (noting “the statutory
presumption that a person under 18 years of age is incapable of giving legal consent”).
516 INDIANA LAW JOURNAL [Vol. 87:505

may primarily serve to protect juveniles from the exploitation of older, more
80
experienced sexual predators, it also serves to protect juveniles from themselves
because they lack a sufficient understanding and appreciation of the risks and
81
harms of intercourse.
Some feminists and critics counter that the motive and effect of statutory rape
82
law may be more paternalistic than protective. Statutory rape laws “reflect and
reinforce archaic assumptions about the . . . weakness and naïveté of young
83
women.” Frances Olsen describes the dilemma that statutory rape laws present to
feminists: “On one hand, they protect females . . . . [T]hey reduce abuse and
victimization. On the other hand, statutory rape laws restrict the sexual activity of
84
young women and reinforce the double standard of sexual morality.” On this
view, statutory rape law’s protection of young women’s freedom from unwanted,
exploitative intercourse undermines their freedom to engage in wanted, rewarding
intercourse. To the sexually active underage female, statutory rape law is “both
protective (if indeed a young female is being abused) and punitive (if the
85
relationship is a consensual one).”
But statutory rape law’s traditional and exclusive focus on the protection of
young females has shifted. Previously, by statute, the class of perpetrators was
86
exclusively male and the class of victims exclusively female. Despite
gender-specific statutes surviving a constitutional challenge under the equal
87
protection clause, today statutory rape statutes are gender-neutral with respect to
both the class of perpetrators and the class of victims in almost all, if not all,
88 89
states. And increasingly the offenders are female and the victims are male.

80. State v. Jadowski, 680 N.W.2d 810, 817 (Wis. 2004) (“The state has a strong
interest in the ethical and moral development of its children, and this state has a long
tradition of honoring its obligation to protect its children from predators and from
themselves.”); Britton Guerrina, Comment, Mitigating Punishment for Statutory Rape, 65 U.
CHI. L. REV. 1251, 1261 (1998) (“Paternalism motivates this understanding of statutory rape:
adolescent females must be protected from themselves.”).
81. The risks and harms cited in justifying the offense include illegitimate teenage
pregnancies, Michael M., 450 U.S. at 470, and venereal diseases, Owens v. State, 724 A.2d
43, 52 (Md. 1999) (noting “especially the HIV virus . . . and . . . permanent damage to a
child’s organs”).
82. See, e.g., Michelle Oberman, Regulating Consensual Sex with Minors: Defining a
Role for Statutory Rape, 48 BUFF. L. REV. 703, 757 (2000) (describing the “tension between
the protective and the patriarchal impulses underlying statutory rape law”).
83. Nadine Taub & Elizabeth M. Schneider, Women’s Subordination and the Role of
Law, in FEMINIST LEGAL THEORY 9, 18 (D. Kelly Weisberg ed., 1993).
84. Olsen, supra note 33, at 401–02.
85. COCCA, supra note 4, at 27.
86. See, e.g., Carpenter, supra note 53, at 313 (noting that the offense of statutory rape
was “[o]riginally gender-specific”). For a chart showing the year-by-year breakdown of
states’ adoption of gender-neutral statutory rape statutes, see COCCA, supra note 4, at 74
tbl.3.2.
87. See Michael M. v. Superior Court of Sonoma Cnty., 450 U.S. 464, 472–73 (1981)
(upholding the constitutionality of California’s statutory rape law, which only prohibited the
conduct of male perpetrators).
88. See RICHARD J. BONNIE, ANNE M. COUGHLIN, JOHN C. JEFFRIES, JR. & PETER W.
2012] THE PARADOX 517

One of many controversial aspects of statutory rape law is the strict liability rule
as to the victim’s age. That is, under strict liability, the prosecution need not prove
that the defendant had any mens rea as to the victim’s age, and a defendant’s honest
90
and reasonable belief as to the victim’s age is not a defense. For almost 100 years
91
after the 1875 English case, Regina v. Prince, strict liability as to the victim’s age
92 93
was uniformly followed in America. But in 1964, in People v. Hernandez,
California recognized a defendant’s honest and reasonable belief that the victim
94
was over the age of consent as a defense. Though approximately twenty
jurisdictions now recognize the Hernandez defense, strict liability remains the
95
majority rule.

B. Elements of Statutory Rape

This section presents the explicit and implicit elements of the offense of
statutory rape. After demonstrating that adult victims of rape perpetrated by
96
juveniles satisfy all of these elements, this section concludes that such adult
victims commit statutory rape of their juvenile rapists.

LOW, CRIMINAL LAW 400 (2d ed. 2004) (noting that the “vast majority” of statutory rape
provisions are gender-neutral); Carpenter, supra note 53, at 313 n.81 (citing Idaho as the
only state retaining a gender-specific statute).
89. See, e.g., Kay L. Levine, No Penis, No Problem, 33 FORDHAM URB. L.J. 357, 380–
88 (2006) (chronicling the increased frequency of female perpetrators and male victims);
Kate Zernike, The Siren Song of Sex with Boys, N.Y. TIMES, Dec. 11, 2005, § 4, at 3 (same).
90. See, e.g., Owens v. State, 724 A.2d 43, 49 (Md. 1999) (observing that statutory rape
is a strict liability offense because it precludes a defense based on mistake of age of the
victim); DRESSLER, supra note 25, at 147 (noting that statutory rape is recognized as a strict
liability offense because it does not require a “mens rea element regarding the defendant’s
knowledge of the female’s underage status” (emphasis in original)).
91. (1875) 2 L.R.C.C.R. 138, 145 (affirming defendant’s conviction for taking an
unmarried girl below the age of sixteen from the custody of her father despite the jury
finding that the girl “told the prisoner that she was eighteen years of age, that he believed
that she was eighteen years of age, and that he had reasonable grounds for so believing”).
92. See Larry W. Myers, Reasonable Mistake of Age: A Needed Defense to Statutory
Rape, 64 MICH. L. REV. 105, 111 (1965) (“Despite having been soon overruled [in England],
Prince initiated a trend which was universally followed in American jurisdictions for the
next eighty-nine years; statutory rape in America thus fell into a class of cases at variance
with the reasonable-mistake-of-fact doctrine.”).
93. 393 P.2d 673, 677–78 (Cal. 1964) (reversing defendant’s conviction for statutory
rape and recognizing a defense based on the defendant’s honest and reasonable belief that
the victim was above the age of consent).
94. See State v. Jadowski, 680 N.W.2d 810, 822 n.49 (Wis. 2004) (identifying
Hernandez as “the first case to allow the defense [to statutory rape based on mistake of
age]”).
95. See, e.g., Garnett v. State, 632 A.2d 797, 802–03 (Md. 1999) (observing that
twenty-one jurisdictions have some kind of mistake of age defense to statutory rape).
96. Juveniles are commonly held criminally liable for rape. See, e.g., Laura L. Finley,
The Central Park Jogger: The Impact of Race on Rape Coverage, in 5 FAMOUS AMERICAN
CRIMES AND TRIALS: 1981–2000, 123, 132–37 (Frankie Y. Bailey & Steven Chermak eds.,
2004) (chronicling perhaps the most famous case of juveniles, ranging from fourteen to
sixteen, being held criminally liable for rape). Some states allow criminal court jurisdiction
518 INDIANA LAW JOURNAL [Vol. 87:505

1. Explicit Elements

The typical formulation of statutory rape defines the explicit elements of the
offense minimally. Under this minimalist conception, the offense of statutory rape
consists of nothing more than (i) intercourse with or penetration of (ii) a juvenile
97
below the age of x (typically sixteen). Most jurisdictions also include the
following additional element: (iii) by a perpetrator at least y years of age (typically
98 99
eighteen) and/or at least z years older (typically three) than the juvenile.
By being raped by a juvenile, the adult victim commits statutory rape under this
minimalist conception. Suppose that Juvenile, who is less than x years of age, rapes
Adult, who is at least y years of age and at least z years older than Juvenile. By
virtue of being raped by Juvenile, Adult has intercourse with Juvenile. As a result,
Adult would satisfy the explicit elements—intercourse with a person below the age
of consent by a person sufficiently older. The next section demonstrates that such
an adult victim also satisfies the possible implicit elements of the offense.

2. Implicit Elements

A fuller conception of the offense includes both explicit and implicit elements. It
is almost axiomatic in criminal law that any serious offense includes both a
100
voluntary act (or omission) and some mental culpability or blameworthiness.
That a particular formulation of statutory rape might be a strict liability offense
with respect to one element—the age of the victim—does not preclude the
101
requirement of mens rea with respect to some other element —for example,

over juveniles regardless of the juvenile’s age and/or the seriousness of the offense. SAMUEL
M. DAVIS, RIGHTS OF JUVENILES: THE JUVENILE JUSTICE SYSTEM 206–07 (2006). Others
permit it based on a minimum age of the juvenile or the seriousness of the offense. E.g., 705
ILL. COMP. STAT. ANN. 405/5-805(3)(a) (West 2007 & Supp. 2010) (allowing criminal court
jurisdiction for any offense for juveniles thirteen years of age or older); cf. ANDREW
ASHWORTH, PRINCIPLES OF CRIMINAL LAW 203 (5th ed. 2006) (“In England and Wales the
minimum age of criminal responsibility is 10 . . . .”).
97. See, e.g., Commonwealth v. Knap, 592 N.E.2d 747, 748–49 (Mass. 1992)
(“Statutory rape is a strict liability crime. The only elements the Commonwealth must prove
are (1) sexual intercourse . . . with (2) a child under sixteen years of age.” (citation omitted)).
98. See supra note 17.
99. For a chart showing the requisite age differentials between the age of the perpetrator
and victim in each state, see COCCA, supra note 4, at 23–24 tbl.1.1.
100. See, e.g., Morissette v. United States, 342 U.S. 246, 251 (1952) (predicating
criminal liability on proof of “an evil-meaning mind with an evil-doing hand”); DRESSLER,
supra note 25, at 199 (“A crime contains an actus reus and, usually, a mens rea. More
specifically, a person may not be convicted of an offense unless the . . . defendant, with the
requisite mental state, performed a voluntary act . . . .” (emphasis omitted)). The early roots
of this principle can be seen in William Blackstone’s account: “[T]o make a complete crime,
cognizable by human laws, there must be both a will and an act.” 4 BLACKSTONE, supra note
32, at 21.
101. See, e.g., Douglas N. Husak, Varieties of Strict Liability, 8 CAN. J. L. &
JURISPRUDENCE 189, 191 (1995) (“[S]trict liability should not be construed as a property of
whole offenses. . . . Liability may be strict for some but not all of the elements of . . . an
offense.” (footnote omitted)).
2012] THE PARADOX 519

102
intention to engage in, or knowledge of, the intercourse itself. And the presence
of a voluntary act is an element of, or its absence is a defense to, even strict liability
103
offenses. The voluntary act requirement in criminal law is quite technical. Much
conduct ordinarily termed involuntary is construed as voluntary for purposes of the
104
actus reus requirement. A voluntary act is conventionally defined as a willed
105 106
bodily movement, or a willed muscular contraction or conduct “within the
107
control of the actor.” Involuntary acts involve a “lack of control over one’s
108
movements” and are not a “product of the effort or determination of the
109
actor.”
An adult being raped by a juvenile may satisfy this fuller conception of the
offense including both implicit elements. For example, as discussed above, Ms.
Lewis and Mr. Garnett both acted voluntarily within the meaning of the voluntary
act requirement and satisfied the mens rea of both intention and knowledge as to
110
the intercourse. One might object that a rape victim fails to affirmatively act
during intercourse. But this is mistaken; rape victims do commit various bodily
111
movements or muscular contractions or otherwise satisfy the act requirement. As

102. A few jurisdictions treat mens rea as to intercourse not as an implicit element but as
an explicit element. See, e.g., ARIZ. REV. STAT. ANN. § 13-1405A (2010) (requiring a mens
rea of either intention or knowledge); COLO. REV. STAT. § 18-3-402(1) (West 2010)
(requiring a mens rea of knowledge).
103. See SANFORD H. KADISH, STEPHEN J. SCHULHOFER & CAROL S. STEIKER, CRIMINAL
LAW AND ITS PROCESSES: CASES AND MATERIALS 262 (8th ed. 2007) (“[T]he absence of a
voluntary act . . . [is] a defense to a strict liability offense.”); 2 PAUL H. ROBINSON,
CRIMINAL LAW DEFENSES 265 (1984) (“[T]he treatment of involuntary conduct as a general
excuse[] clarifies that the excuse remains available even where the imposition of strict
liability is supported by a strong public policy interest.”).
104. See, e.g., Jeffrie G. Murphy, Involuntary Acts and Criminal Liability, 81 ETHICS
332, 333 n.3 (1971) (“[T]he legal use of the involuntary-voluntary distinction differs from
our ordinary use. According to the law, we have a voluntary act whenever the actus reus
requirement is satisfied, and only cases like seizures and convulsions (negating actus reus)
are called involuntary.”).
105. E.g., ANTONY DUFF, INTENTION, AGENCY & CRIMINAL LIABILITY: PHILOSOPHY OF
ACTION AND THE CRIMINAL LAW 118 (1990) (noting that “a voluntary act is, on one common
account, a willed bodily movement—a movement caused by a mental act of volition”);
MICHAEL S. MOORE, ACT AND CRIME: THE PHILOSOPHY OF ACTION AND ITS IMPLICATIONS FOR
CRIMINAL LAW 28 (1993).
106. See OLIVER WENDELL HOLMES, JR., THE COMMON LAW 54 (1881) (“The act is not
enough by itself. . . . It is a muscular contraction, and something more. A spasm is not an act.
The contraction of the muscles must be willed.”).
107. MODEL PENAL CODE § 2.01 cmt. 1 at 215 (Official Draft and Revised Comments
1985).
108. Murphy, supra note 104, at 333; accord Meir Dan Cohen, Actus Reus, in 1
ENCYCLOPEDIA OF CRIME AND JUSTICE 15, 18 (Sanford H. Kadish ed., 1983) (noting that in
committing an involuntary act, “the defendant completely lacks control over his bodily
movements in a way that makes the legally mandated conduct impossible”).
109. MODEL PENAL CODE § 2.01(2)(d).
110. See supra notes 21–25 and accompanying text, and text accompanying notes 45–52.
111. The objection that a rape victim fails to affirmatively act and thereby fails to satisfy
an implicit act requirement for statutory rape is unpersuasive for five reasons. First, by
520 INDIANA LAW JOURNAL [Vol. 87:505

will be demonstrated in Part II, the implicit elements fail to preclude statutory rape
liability for an adult victim in at least some instances of almost every type of rape
perpetrated by a juvenile.

C. Defenses Specific to Statutory Rape

Though satisfying both the explicit and implicit elements, the adult rape victim
might still escape statutory rape liability by asserting a defense. This section
112
presents two defenses specific to the offense of statutory rape. The first
defense—that the perpetrator is not motivated by a sexual interest—only exculpates
in some instances of only some types of rape that a juvenile might perpetrate
against an adult victim. The second defense—that the juvenile is unchaste or
promiscuous—would be more effective. It would exculpate in some instances of
every type of rape that a juvenile might commit against an adult. However, neither
defense is widely recognized.

engaging in intercourse, a rape victim, even if largely passive, inevitably makes minor bodily
movements or muscular contractions if only to accommodate the actions of the rapist and to
lessen the victim’s pain or discomfort thereby satisfying an act requirement. Second, even if
some rape victims remain perfectly passive during intercourse and literally do not move a
muscle, surely not all (non-resisting) rape victims remain perfectly passive during the
intercourse. And for such rape victims, an act requirement would not preclude liability for
statutory rape. Third, in at least some rapes, a rapist may direct the victim to make specific
movements during the intercourse or to perform certain acts. To avoid further harm, the
victim complies. By doing so, the victim’s actions would satisfy an act requirement. Fourth,
if it is possible to engage in intercourse and nonetheless remain perfectly passive and
literally not commit any actions, then an unfortunate loophole opens in the law of statutory
rape. Any statutory rapist (not merely adult victims of rape) may claim as a defense that he
remained perfectly passive during the intercourse and thus did not commit any actions and
thus fails to satisfy an act requirement and thus cannot be held criminally liable for statutory
rape. (The claim would be particularly difficult for the prosecution to rebut where the
juvenile victim, as is sometimes the case, objects to the prosecution and would corroborate
the defendant’s claim of perfect passivity.) To avoid opening this egregious loophole, surely
the better view is that by engaging in intercourse one necessarily commits affirmative acts
satisfying an act requirement. Fifth, possibly to close such a loophole, at least one
jurisdiction perhaps even dispenses with the requirement of an affirmative act for statutory
rape. See, e.g., IND. CODE ANN. § 35-42-4-9(a) (LexisNexis 2009) (“A person at least
eighteen (18) years of age who, with a child at least fourteen (14) years of age but less than
sixteen (16) years of age, performs or submits to sexual intercourse or deviate sexual
conduct commits sexual misconduct with a minor.” (emphasis added)). The statute is
satisfied if the defendant merely “submits” to intercourse. One might “submit” to intercourse
with very little or even no affirmative action. Under such a provision, a defendant’s lack of
affirmative action would perhaps not preclude statutory rape liability.
112. Two other defenses specific to statutory rape will not be discussed because they are
inapplicable to the situation of an adult committing statutory rape of her juvenile rapist. First,
the juvenile and perpetrator being married is a defense. See COCCA, supra note 4, at 165 n.23
(“[A]ll states exempt married partners from prosecution.”). Second, the penetration being
undertaken for a valid medical purpose may be a defense in some jurisdictions. KEITH
BURGESS-JACKSON, RAPE: A PHILOSOPHICAL INVESTIGATION 166 (1996).
2012] THE PARADOX 521

1. Perpetrator Not Motivated By a Sexual Interest

A statutory rape perpetrator’s lack of sexual interest or absence of a purpose of

sexual gratification is a defense that could exculpate adults raped by juveniles. For
example, Arizona supplies a defense to statutory rape where “the defendant was not
113
motivated by a sexual interest.” The defense, however, is not a satisfactory
solution for several reasons. First, it is only recognized in a small minority of
114
jurisdictions. Second, even where recognized, adult victims of some types of
rape, as perpetrated by a juvenile, would fail to qualify. While a victim like Ms.
115
Lewis would qualify, a victim like Raymond Garnett would not. As will be
demonstrated in Part II, adult victims of rape by fraud or rape by virtue of mental
116
disability might well be motivated by a sexual interest. Third, wider adoption of
117
the defense may be unwise for policy reasons.

2. Unchaste or Promiscuous Juvenile Victim

Traditionally, that a juvenile victim was promiscuous or unchaste provided a

118
complete defense to statutory rape. While some jurisdictions classified a merely

113. ARIZ. REV. STAT. ANN. § 13-1407E (2010). For a case construing the defense, see In
re Maricopa County Juvenile Action No. JV-121430, 838 P.2d 1365, 1368 (Ariz. Ct. App.
1992) (holding that a defendant’s showing of a lack of abnormal or unnatural sexual interest
is insufficient to satisfy the defense of lack of sexual interest). Similarly, a small minority of
jurisdictions require as an element of the offense that the perpetrator be motivated by sexual
interest or have a purpose of sexual gratification. E.g., IDAHO CODE ANN. § 18-1506(1)
(2004) (requiring defendant’s “intent to gratify the lust, passions, or sexual desire of the
actor, minor child or third party”). For a recent case construing this element, see State v.
Marsh, 119 P.3d 637, 642 (Idaho Ct. App. 2004) (finding that direct evidence of intent to
gratify sexual desire was not required; it may be inferred from the surrounding
circumstances). Perhaps the paradigmatic example of a penetration effected without sexual
interest is a penetration for a valid medical purpose. See supra note 112.
114. See supra note 113.
115. Victims of rape by threat of physical force or rape by coercion are more likely to
qualify for this defense. Rather than sexual interest, the adult victim of either of those types
of rape is instead motivated by the threatened force or coercion.
116. See infra Part II.C–D.
117. The defense might cause more problems than it avoids. It would create a significant
loophole. The defense would invite a defendant to claim that the motivation was not sexual
but rather, degradation, determining if the victim was a virgin, medical, or procreation. As a
result, wider adoption of the defense may be unadvisable.
118. For example, see the following Pennsylvania provision, now repealed, barring
statutory rape liability if the juvenile victim was “not of good repute”:
Upon the trial of any defendant charged with the unlawful carnal knowledge
and abuse of a woman child under the age of sixteen (16) years, if the jury shall
find that such woman child was not of good repute, and that the carnal
knowledge was with her consent, the defendant shall be acquitted of [statutory]
rape . . . .
Act of June 24, 1939, P.L. 872, § 721, 18 P.S. 949, 950 (repealed 1979). For an account of
the traditional defense and its continued use into the 1990s, see Oberman, supra note 37, at
31–36.
522 INDIANA LAW JOURNAL [Vol. 87:505

nonvirginal juvenile as unchaste, other jurisdictions required more than

119
nonvirginity. As one court noted, “a single other instance of a sexual act does not
constitute promiscuity within the meaning of [the statute]. Promiscuity connotes a
variety of consensual sexual conduct with a variety of partners continuing over a
120
reasonable period of time.” The Model Penal Code (MPC) retains this defense to
statutory rape when the “victim had, prior to the time of the offense charged,
121
engaged promiscuously in sexual relations with others.” The rationale is that
“proof of prior sexual promiscuity rebuts the presumption of naivete and
122
inexperience that supports the imposition of criminal liability.” In their recently
123
drafted codes, few states have followed the MPC in supplying the defense. And
with the 1998 repeal of Mississippi’s requirement that a victim be chaste as an
124
element of statutory rape, perhaps no state recognizes chastity of the victim as an
125
element or promiscuity of the victim as a defense.
This defense is not a satisfactory solution for three reasons. First, as discussed
above, it is not recognized in all jurisdictions and possibly even in no jurisdiction.
Second, even if recognized, the defense would not be satisfied by all adult victims
of rape perpetrated by juveniles. True, most juveniles sexually aggressive enough
to rape an adult are presumably unchaste. But suppose an adult is raped by a chaste
juvenile. Or suppose a juvenile rapist is unchaste but not sufficiently
“promiscuous” within the meaning of the defense. Or suppose a juvenile rapist is
sufficiently promiscuous but the adult defendant cannot obtain sufficient evidence
of such promiscuity. In all three situations the adult would not satisfy the defense
and would still be subject to statutory rape liability. Finally, reinstating the
126
promiscuity defense may be unwise for policy reasons.

D. General Defenses

This section presents three general defenses—necessity, duress, and

self-defense. Unlike the defenses specific to statutory rape, these general defenses
are widely recognized. None of these defenses, however, supplies a satisfactory

119. See Oberman, supra note 37, at 33.

120. Rankin v. State, 821 S.W.2d 230, 234 (Tex. App. 1991) (citation omitted).
121. MODEL PENAL CODE § 213.6(3) (Official Draft and Revised Comments 1985).
122. Id. § 213.6(3) cmt. 4 at 420.
123. See id. (“Most of the recently drafted codes and proposals have not included a
similar defense. Such a provision can be found in several older statutes, however, and has
been included in a few comprehensive revisions.” (footnotes omitted)).
124. MISS. CODE ANN. § 97-5-21 (1984), repealed by Ch. 549, § 7, 1998 Miss. Laws 821,
825 (criminalizing intercourse with a victim under eighteen years of age provided that the
victim is “of previous chaste character”).
125. See COCCA, supra note 4, at 12 (noting that, following the 1998 repeal of
Mississippi’s chastity element and the 1993 repeal of Texas’s promiscuity defense, “no state
now retains this language”).
126. See, e.g., Oberman, supra note 37, at 35 & n.109 (arguing that sexually experienced
juveniles need more, not less, protection as they “may in fact be survivors of childhood rape
and incest, and thus may be exceptionally vulnerable to abuse in sexual situations”); accord
LAFAVE, supra note 30, at 874.
2012] THE PARADOX 523

solution. These defenses fail to preclude liability for statutory rape in at least some
instances of almost every type of rape perpetrated by a juvenile against an adult.

1. Necessity

Necessity, also termed lesser evils or choice of evils, generally justifies

127
committing a crime where committing it causes less harm than not committing it.
For example, “property may be destroyed to prevent the spread of a fire. A speed
limit may be violated in pursuing a suspected criminal. An ambulance may pass a
traffic light. Mountain climbers lost in a storm may take refuge in a house or may
128
appropriate provisions.”
129
Necessity, however, is not a satisfactory solution for three reasons. First, the
defense would not be available to adult victims of all types of rape perpetrated by a
juvenile. As Part II will demonstrate, the defense would be entirely inapplicable
where the adult is the victim of rape by fraud or rape of a mentally disabled person.
A victim of such rapes is in no way making a choice among evils by committing
statutory rape. While an adult victim of rape by coercion (by threat of non-physical
130
harm) is making a choice among evils, nonetheless it is quite difficult to
conclude that committing statutory rape to avoid a non-physical harm is the lesser
evil.
131
Second, even if the adult is a victim of rape by threat of physical force,
necessity will not apply in all circumstances. If the force threatened by the juvenile
is death or substantial bodily harm, then engaging in intercourse with the juvenile is
likely the lesser evil. But if the force threatened is slight or moderate, then
engaging in intercourse with the juvenile and committing statutory rape is not
clearly the lesser evil.
Third, some jurisdictions bar application of the defense to emergencies created
132
by human (as opposed to natural) sources. For example, a defendant charged
with trespass may successfully claim necessity to avoid a tornado but not to escape

127. See, e.g., MODEL PENAL CODE § 3.02 (Official Draft and Revised Comments 1985)
(“Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to
another is justifiable, provided that: (a) the harm or evil sought to be avoided by such
conduct is greater than that sought to be prevented by the law defining the offense
charged . . . .”); DRESSLER, supra note 25, at 290 (“[I]f circumstances require a choice
among various evils, an actor is justified if he chooses the least harmful option . . . .”).
Following the MPC, almost half of the states have codified a necessity defense; the other
states employ a common law defense. Id. at 291.
128. MODEL PENAL CODE § 3.02 cmt. 1 at 9.
129. Additionally, the defense is not routinely granted. See DAVID ORMEROD, SMITH AND
HOGAN CRIMINAL LAW 316 (11th ed. 2005) (“Despite the explicit recognition of the defence
the courts adopt a persistently restrictive approach to the defence.”).
130. For a discussion of this type of rape, see infra Part II.B.
131. For a discussion of this type of rape, see infra Part II.A.
132. E.g., WIS. STAT. ANN. § 939.47 (West 2005) (limiting necessity to “[p]ressure of
natural physical forces”); United States v. Contento-Pachon, 723 F.2d 691, 695 (9th Cir.
1984) (denying a necessity defense because the defendant’s “acts were allegedly coerced by
human, not physical forces”); PAUL H. ROBINSON, CRIMINAL LAW 408 (1997) (explaining
that some jurisdictions follow the traditional rule requiring natural forces).
524 INDIANA LAW JOURNAL [Vol. 87:505

133
from an armed robber. The emergency created by the juvenile rapist that requires
the adult to commit statutory rape is human, not natural. Consequently, in
jurisdictions limiting the necessity defense to emergencies created by natural
forces, the defense would be inapplicable to an adult raped by a juvenile.
For the above three reasons necessity fails to satisfactorily preclude adults’
liability for statutory rape of their juvenile rapists. Necessity would be inapplicable
134
to each and every adult victim of three types of rape and some adult victims of
135
one type of rape. The next section considers the defense of duress. In one
respect, duress is more promising. Unlike necessity, duress requires the threat to
emanate from a human source.

2. Duress

Duress excuses criminal conduct where the defendant is coerced by a threat of

136
sufficient gravity. The MPC grants the defense to one who commits an offense
because “coerced to do so by the use of, or a threat to use, unlawful force against
his person or the person of another, that a person of reasonable firmness in his
137
situation would have been unable to resist.” Under the majority rule only a threat
138
of death or serious bodily harm suffices for the duress defense. Under the
139
minority and MPC rule a threat of merely unlawful force may suffice.
140
Duress, however, fails to provide a satisfactory solution for four reasons.
First, the defense is inapplicable to adult victims of all types of rape perpetrated by

133. DRESSLER, supra note 25, at 293; see also id. (“Likewise, D, a prison inmate may be
able to claim necessity if he flees a prison as the result of a fire, but not if another inmate
threatens to assault him.”).
134. That is, rape by coercion, rape by fraud, and rape of the mentally disabled.
135. That is, rape by threat of physical force.
136. See Finkelstein, supra note 24, at 254 (identifying seven conditions for the defense);
Dressler, supra note 28, at 1336–43 (identifying three additional requirements).
137. MODEL PENAL CODE § 2.09(1) (Official Draft and Revised Comments 1985); see
also Dressler, supra note 28, at 1344–45 (comparing the MPC and common law
formulations).
138. See, e.g., DRESSLER, supra note 25, at 304 (explaining that “the coercer must
threaten to cause death or serious bodily harm” (emphasis omitted)); Finkelstein, supra note
24, at 254 (“The defendant must be threatened with significant harm—death or serious
bodily injury.”).
139. See MODEL PENAL CODE § 2.09 cmt. 4 at 381 (“[A] majority [of states] define more
narrowly than does this section the kinds of threats to one’s person that will suffice [for the
duress defense] . . . .”).
140. Additionally, the duress defense is not routinely granted. See, e.g., Dixon v. United
States, 548 U.S. 1, 27 (2006) (“[T]he strict contours of the duress defense . . . substantially
narrow the circumstances under which the defense may be used.”); Laurie Kratky Doré,
Downward Adjustment and the Slippery Slope: The Use of Duress in Defense of Battered
Offenders, 56 OHIO ST. L.J. 665, 747 (1995) (“Courts and commentators frequently describe
traditional duress as a rare and exceptional defense, the limits of which are both narrowly
drawn and extraordinarily demanding.”). Thanks to Michael Dorff for sharpening our
arguments against the defense of duress as a satisfactory solution to the paradox of statutory
rape.
2012] THE PARADOX 525

juveniles. Victims of rape by coercion, rape by fraud, or rape of a mentally disabled

141
person would fail to qualify. In effecting those types of rape, the juvenile uses
142
neither actual physical force nor the threat of physical force. Even where a
juvenile does perpetrate rape by threat of force, duress would not apply to the adult
victim, under the majority rule, if the juvenile threatened less than serious bodily
143
harm.
Second, many states bar duress as a defense to particular crimes or types of
144
crime. Joshua Dressler notes that “[c]ase law is divided regarding the
145
applicability of the defense to rape.” At least one state, Indiana, bars duress
entirely as a defense to a charge of statutory rape. Indiana’s duress provision states
that the defense “does not apply to a person who . . . [c]ommitted an offense against
146
the person.” Included among Indiana’s offenses against the person is the offense
147
of statutory rape—termed “Sexual misconduct with a minor.”
Third, the duress defense may be fundamentally inapplicable to the atypical
situation of a duressor (the party applying the duress) being also the victim of the
duressee’s (the party subjected to the duress) crime. Typically, duress applies to
148
three-party situations: A threatens B to commit a crime against innocent C. One
of the principal rationales for the defense depends on such a tripartite relationship:
even if B, the victim of the threat or duress, is exculpated, there is still a party for
the criminal justice system to hold criminally liable for innocent C’s

141. For the view that coercion or threats of nonphysical harm do not suffice for the
duress defense, see MODEL PENAL CODE § 2.09 cmt. 4 at 381 (“All agree with the Code in
not permitting threats to property or reputation to be the basis for the defense . . . .”);
DRESSLER, supra note 25, at 304 (“A lesser threat, such as a threat to cause property damage,
economic hardship, or to damage another person’s reputation, is insufficient.”).
142. See infra Part II.B–D.
143. See supra note 138 and accompanying text.
144. E.g., MODEL PENAL CODE § 2.09 cmt. 4 at 381 (“Most [recently revised state
criminal codes] exclude some offenses from the ambit of the defense.”). While the most
typical offense to which duress is not a defense is murder, some states bar duress from being
a defense to lesser offenses as well. See, e.g., id. at 381 n.54 (identifying jurisdictions that
bar the defense to “offenses against the person” and offenses “causing physical injury”).
145. Dressler, supra note 28, at 1342.
146. IND. CODE ANN. § 35-41-3-8(b) (LexisNexis 2009). Offenses against the person are
set out in section 35-42. See id. § 35-42. This bar on the duress defense has been applied, and
upheld on appeal, to several offenses against the person. E.g., Moore v. State, 697 N.E.2d
1268, 1273 (Ind. Ct. App. 1998) (felony murder); Jefferson v. State, 484 N.E.2d 22, 23–24
(Ind. 1985) (robbery); Armand v. State, 474 N.E.2d 1002, 1004–05 (Ind. 1985) (attempted
robbery).
147. IND. CODE ANN. § 35-42-4-9(a).
148. See, e.g., Peter Westen & James Mangiafico, The Criminal Defense of Duress: A
Justification, Not an Excuse—And Why It Matters, 6 BUFF. CRIM. L. REV. 833, 843 (2003)
(“In contrast to necessity and self-defense . . . duress invariably consists of three-party
relationships.”); see also Doré, supra note 140, at 749 (noting that the party asserting the
duress defense avoids the threatened harm by “misconduct directed against an third party”).
But see Jeremy Horder, Self-Defence, Necessity and Duress: Understanding the
Relationship, 11 CAN. J. L. & JURISPRUDENCE 143, 149 (1998) (suggesting that duress might
be applicable to two-party cases).
526 INDIANA LAW JOURNAL [Vol. 87:505

149
victimization—A. In contrast, in two-party situations, including a juvenile raping
an adult by threat, A threatens B into committing a crime against noninnocent A.
(The juvenile threatens the adult into committing the crime of statutory rape against
the noninnocent juvenile.) The rationale for granting a duress defense to the
duressee (B, the adult) no longer applies. Granting a duress defense to B (the adult)
does not leave the criminal justice system with a party to prosecute for the statutory
rape. A (the juvenile) presumably cannot be prosecuted for committing statutory
rape of himself. Numerous courts have barred the defense in such two-party
150
situations. For example, in Long v. State, the court stated that a two-party
situation “presents a claim in the nature of self-defense, not a claim of
duress. . . . [W]here the victim is also the same person claimed to be exerting
151
duress, the issue is self-defense.”
And fourth, as an excuse (as opposed to a justification) defense, duress is
152
inappropriate. George Fletcher concisely explains the justification/excuse
distinction: “A justification speaks to the rightness of the act; an excuse, to whether
153
the actor is accountable for a concededly wrongful act.” While either type of
defense equally leads to an acquittal, as Dressler explains, the labeling of a defense
as a justification or an excuse is critical to the criminal law’s function of supplying
a guide to permissible and impermissible conduct: “People should take justifiable,
154
rather than wrongful-but-excusable, paths.” Paul Robinson agrees that an excuse
“represents a legal conclusion that the conduct is wrong and undesirable, that the
conduct ought not to be tolerated and ought to be avoided in the future, even in the
155
same situation.” Limiting adult rape victims to the excuse of duress as a defense

149. See, e.g., MODEL PENAL CODE § 2.09 cmt. 3 at 379 (explaining that duress may be
limited to situations where “the basic interests of the law may be satisfied by prosecution of
the agent of unlawful force”; duress may not be available where “no one is subject to the
law’s application”); DRESSLER, supra note 25, at 316 (acknowledging, as a rationale of
duress, that “society’s valid interest in punishing someone for wrongful behavior” may be
satisfied by prosecuting the duressor for the crime committed by the duressee (emphasis
omitted)).
150. Several state courts maintain that “[d]uress envisions a third person compelling a
person by the threat of immediate physical violence to commit a crime against another
person.” State v. Belyeu, 795 P.2d 229, 233 (Ariz. Ct. App. 1990) (quoting State v. Lamar,
698 P.2d 735, 742 (Ariz. Ct. App. 1984)); see also State v. New, 640 S.E.2d 871, 873 (S.C.
2007) (“[D]uress envisions a third person compelling another to commit a crime.”); Rankin
v. State, 541 So. 2d 577, 582 (Ala. Crim. App. 1988) (denying defendant’s duress defense
because “there was no evidence that the appellant was under duress from some third party”).
151. 74 P.3d 105, 108 (Okla. Crim. App. 2003) (denying duress in the absence of a third
party coercing the defendant).
152. Duress is generally considered an excuse defense. See, e.g., DRESSLER, supra note
25, at 306 (“[M]ost scholars, courts, and states’ criminal codes that draw distinctions
between justifications and excuses, treat duress as an excuse defense.”); GEORGE P.
FLETCHER, RETHINKING CRIMINAL LAW 830 (1978) (“Duress is a paradigmatic example of an
excuse.”). But see Westen & Mangiafico, supra note 148, at 947–48 (arguing that duress
should be classified as a justification).
153. FLETCHER, supra note 152, at 759.
154. DRESSLER, supra note 25, at 219.
155. ROBINSON, supra note 132, at 479.
2012] THE PARADOX 527

to statutory rape signals the criminal law’s conclusion that the adult rape victim has
chosen the wrong path. But Ms. Lewis’s conduct was not wrongful; it was entirely
innocent. Precisely what should Ms. Lewis have done differently to avoid
committing purportedly wrongful, undesirable, and intolerable conduct?
Apparently, the answer from a system of criminal law that provides only a duress
excuse to such victims is this: do not be raped by a juvenile. Or this: by being the
victim of a horrifically violent rape, one culpably assumes the risk that one’s rapist
will turn out to be a juvenile.
For the above four reasons, duress does not satisfactorily preclude statutory rape
liability for adult rape victims. Duress would be inapplicable to each and every
156 157
adult victim of three types of rape and some adult victims of one type of rape.
The next section will consider the defense of self-defense. In some respects, self-
defense is more promising. Unlike duress, self-defense is both designed for two-
party situations and is a justification defense.

3. Self-Defense

The defense of self-defense justifies a nonaggressor’s use of force if she

reasonably believes that such force is necessary to protect against the imminent use
158
of unlawful force. The MPC provides that “the use of force upon or toward
another person is justifiable when the actor believes that such force is immediately
necessary for the purpose of protecting himself against the use of unlawful force by
159
such other person on the present occasion.” An adult raped by a juvenile faces
three hurdles to successfully asserting a defense of self-defense to a charge of
160
statutory rape. Because not all adult rape victims will (i) face a threat of force
and bodily harm, (ii) use force, and (iii) commit a crime involving force,
self-defense fails to satisfactorily preclude liability for statutory rape.
The first hurdle is that one must face physical force or a threat of physical force
161
from an aggressor. A juvenile perpetrator of rape by coercion, rape by fraud, or
rape of the mentally disabled is neither using nor threatening physical force. As a
result, an adult victim of any of these types of rape would be ineligible for the
162
defense of self-defense.

156. That is, rape by coercion, rape by fraud, and rape of the mentally disabled. See infra
Part II.B–D.
157. That is, rape by threat of physical force. See infra Part II.A.
158. See, e.g., N.Y. PENAL LAW § 35.15(1) (McKinney 2009) (“A person may . . . use
physical force upon another person when and to the extent he or she reasonably believes
such to be necessary to defend himself, herself or a third person from what he or she
reasonably believes to be the use or imminent use of unlawful physical force by such other
person . . . .”); State v. Norman, 378 S.E.2d 8, 12 (N.C. 1989) (explaining that deadly force
in self-defense is justified if the defendant “believed it to be necessary to kill the decedent to
save herself from imminent death or great bodily harm”).
159. MODEL PENAL CODE § 3.04(1) (Official Draft and Revised Comments 1985).
160. Thanks to Gary Allison for raising self-defense as a possible defense for the adult
rape victim charged with statutory rape.
161. See supra notes 158–59 and accompanying text.
162. Adult victims of rape by threat of physical force would clear this hurdle. However,
528 INDIANA LAW JOURNAL [Vol. 87:505

163
Second, one must actually use “force.” For example, the MPC requires an
164
actor’s “use of force.” Additionally, state self-defense provisions, judicial
165
decisions, and commentators all agree that self-defense involves the use of force.
166
While the MPC somewhat broadens what qualifies as force, some state codes
167
explicitly limit self-defense to the employment of “physical force.” For example,
the court in People v. Pons construed New York’s self-defense provision and found
that the “[j]ustification based on self-defense pertains only to the use of physical
168
force.” But many adult rape victims, like Ms. Lewis, fail to use force because
they do not resist. As a result, at least some adult victims of each of the four types
of rape would be ineligible to obtain the defense of self-defense.
Third, in perhaps most jurisdictions, self-defense may only be raised as a
defense to a charge of an offense involving physical force. For example, in Pons,
the court upheld the trial court’s refusal to instruct the jury on the defense of
self-defense to a weapon possession charge: “[B]ecause possession of a weapon
does not involve the use of physical force, there are no circumstances when
169
justification can be a defense to the crime . . . .” Even a court finding
170
self-defense to be applicable as a defense to nonforcible offenses was able to cite
171
only three states in agreement and acknowledged that seven “modern penal
codes limit discussion of self-defense to the sections on homicide and assault and
172
battery.” This court conceded that “self-defense has generally been limited to
173
situations in which the defendant is charged with an assaultive crime.” Statutory
rape neither requires, nor even typically involves physical force, or a threat of
174
physical force. LaFave specifically excludes statutory rape from the class of

at least some would fail to clear the other two hurdles. See infra notes 163–75 and
accompanying text.
163. See Horder, supra note 148, at 144 (acknowledging, but criticizing, the traditional
rule limiting self-defense “to the use of force”).
164. MODEL PENAL CODE § 3.04(1).
165. See supra notes 158, 163 and accompanying text.
166. MODEL PENAL CODE § 3.11(1) (defining “unlawful force” as “including
confinement”).
167. See, e.g., N.Y. PENAL LAW § 35.15(1) (McKinney 2009).
168. People v. Pons, 501 N.E.2d 11, 11 (N.Y. 1986) (citation omitted).
169. Id. at 13 (citation omitted); see also State v. Goins, Nos. 01C01-9809-CR-00360,
M1998-00758-CCA-R3-CD, 2000 WL 218206, at *8 (Tenn. Crim. App. Feb. 25, 2000)
(“[T]he defense [of self-defense] is limited to the threat or use of force against another
person by the criminal defendant. The appellant’s [offense of] departure from the scene of
the accident . . . did not involve the threat or use of force against another person.” (citation
omitted)).
170. Boget v. State, 74 S.W.3d 23, 31 (Tex. Crim. App. 2002) (affirming reversal of
defendant’s conviction because self-defense is applicable to crimes not involving the use of
force against other persons).
171. Id. at 30 n.40 (referencing Alaska, Illinois, and Wisconsin).
172. Id. at 28 & n.27 (referencing California, Mississippi, Nevada, New Mexico,
Oklahoma, South Dakota, and Vermont).
173. Id. at 28; cf. JONATHAN HERRING, CRIMINAL LAW: TEXT, CASES, AND MATERIALS 632
(3d ed. 2008) (noting that some British cases limit the defense of self-defense to offenses
involving force, but others do not).
174. See supra note 72 and accompanying text.
2012] THE PARADOX 529

crimes to which self-defense applies: self-defense does not apply to “crimes which
do not involve a threat of harm . . . to bodily security (e.g., treason, perjury,
175
statutory rape).” As a result, at least some adult victims of each of the four types
of rape would be ineligible for the defense of self-defense to a charge of statutory
rape.
The defense of self-defense poses a catch-22 for Ms. Lewis and similar rape
victims. If Ms. Lewis had used force, even deadly force, in self-defense, it would
176
have been justified. Moreover, if Ms. Lewis had used force in self-defense, she
would have been resisting the rape. Force used by her juvenile rapist to overcome
her resistance would then render her conduct involuntary (thereby not satisfying the
implicit element of a voluntary act), and thus she would not need the defense of
self-defense. But by not employing any force in self-defense, her conduct is
voluntary (thereby satisfying the implicit element of a voluntary act), and thus she
needs the defense of self-defense. The catch-22 for Ms. Lewis is that if she used
self-defense force she would not need the defense of self-defense; but, by not
employing self-defense force, she needs the defense of self-defense and cannot

175. LAFAVE, supra note 30, at 563. LaFave notes that self-defense may be asserted as a
defense to only a limited number of charged offenses such “as murder and manslaughter,
attempted murder, assault and battery,” id. at 539, and “mayhem,” id. at 563.
One might argue that even if an adult rape victim, like Ms. Lewis, does not use
extrinsic force against the juvenile, the intercourse itself constitutes force. Alternatively,
because the juvenile cannot legally consent to the intercourse, the nonconsensual intercourse
is itself force. A few jurisdictions have found that forcible rape requires no extrinsic force
and that nonconsensual intercourse suffices as force. See, e.g., State in re M.T.S., 609 A.2d
1266, 1267 (N.J. 1992) (holding that “the element of ‘physical force’ is met simply by an act
of non-consensual penetration involving no more force than necessary to accomplish that
result”). In those jurisdictions, adult victims, like Ms. Lewis, who commit statutory rape of
their juvenile rapists, are using force and are thus eligible for the defense of self-defense to a
charge of statutory rape.
There are a number of problems with this argument. First, and most importantly, the
solution would only apply in a minority of jurisdictions (the majority of jurisdictions still
require extrinsic force to satisfy the force element). LAFAVE, supra note 30, at 858 (referring
to “the more common extrinsic force rule”). A claimed solution that still leaves adult victims
of rape subject to statutory rape liability in the vast majority of jurisdictions is not an
adequate solution. Second, there is no authority for extending the doctrine—nonconsensual
intercourse is force—beyond the law of forcible rape to statutory rape. Third, where
nonconsensual intercourse suffices as force, the intercourse is both factually and legally
nonconsensual. In statutory rape, however, the intercourse is factually consensual and legally
nonconsensual. It is more difficult to construe factually consensual intercourse as force than
factually nonconsensual intercourse. Fourth, the law of self-defense may view what suffices
as force differently than the law of rape. As a result, even if nonconsensual intercourse
suffices as force in rape law, it might not suffice as the requisite use of force for the law of
self-defense. Fifth, for a statutory rape defendant to even make the argument that the
nonconsensual intercourse suffices as force, the defendant risks self-incriminating to a
greater charge of forcible rape. For these five reasons, the possible argument that committing
statutory rape constitutes the use of force rendering Ms. Lewis or a similar adult victim
eligible for the defense of self-defense to a charge of statutory rape is not a satisfactory
solution.
176. See supra note 158.
530 INDIANA LAW JOURNAL [Vol. 87:505

have it. One possible way out of the catch-22 is the defense of necessity. LaFave
suggests that when an actor avoids the use of force in self-defense by instead
committing a nonforcible crime, the appropriate defense is not self-defense but
177
necessity. But this only brings us back full circle—as discussed above, necessity
is also foreclosed.
178
As a result, neither self-defense, nor any other general defense, nor any
specific defense provides a satisfactory solution. While the general defenses are
recognized in every jurisdiction, at least some adult victims of virtually any type of
rape committed by a juvenile would fail to satisfy them. While such adult victims
would more readily satisfy the specific defenses, few jurisdictions recognize them.
This Part demonstrated, in general, that no individual offense element or defense
satisfactorily precludes statutory rape liability. The next Part will establish this
liability with respect to specific examples of four types of rape and will show that
no combination of elements and/or defenses satisfactorily precludes liability.

II. STATUTORY RAPE LAW CRIMINALIZES BEING RAPED

This Part demonstrates that the law of statutory rape criminalizes being an adult
victim of the following types of rape (when perpetrated by a juvenile): (i) rape by
threat of physical force, (ii) rape by coercion, (iii) rape by fraud, and (iv) rape of a
mentally disabled person. Although cases of juveniles raping adults in the first
category arise with greater frequency, depict more egregious facts, and feature
perhaps more sympathetic victims, it is important to analyze all four categories to
fully appreciate the scope of the problem and illustrate the inability of existing
elements of, and defenses to, statutory rape to supply a solution.

A. Rape by Threat of Physical Force

In rape by threat of physical force, the perpetrator threatens sufficient physical

force so that the victim engages in intercourse to avoid the threatened harm. Under
many statutory formulations, whether actual force is imposed or merely threatened
is irrelevant; the same crime of forcible rape is committed whether force is actually
179
exerted or merely threatened. What type of threat suffices is subject to
180 181
“considerable uncertainty” and variation among jurisdictions.

177. LAFAVE, supra note 30, at 539 n.2. LaFave arrives at this view by considering the
suggestion, by another commentator, that “when A attacks B, B may in self-defense
justifiably take C’s car in which to escape from A.” Id. (emphasis omitted) (citing JEROME
HALL AND GERHARD O. W. MUELLER, CRIMINAL LAW AND PROCEDURE 663 (2d ed. 1965)).
LaFave disagrees and responds that “[i]t is doubtless true that B is justified in taking C’s car,
so he is not guilty of larceny thereof, but his defense is necessity, rather than self-defense.”
Id. (emphasis omitted) (citation omitted).
178. The defense of self-defense is inapplicable to all adult victims of three types of
rape—rape by coercion, rape by fraud, and rape of a mentally disabled person—as well as
some adult victims of rape by threat of physical force.
179. See, e.g., DRESSLER, supra note 25, at 587 (“Forcible rape prosecutions may be
based on a threat of serious force rather than its infliction.”); ROBINSON, supra note 132, at
752 (“[N]othing in the definition of rape as ‘forcible intercourse’ requires that the victim
2012] THE PARADOX 531

When raped by a juvenile threatening physical force, an adult satisfies the

explicit elements of statutory rape. Consider the earlier example of
182
fourteen-year-old Alfonza raping Ms. Lewis at gunpoint. That the intercourse
was compelled by threat of force does not diminish that Ms. Lewis had intercourse
with the juvenile. Therefore, Ms. Lewis satisfies the explicit elements.
Ms. Lewis and similar victims would also satisfy the implicit voluntary act and
mens rea elements of statutory rape. While conduct under threat or duress is often
informally and incorrectly described as involuntary and unintentional, the threat or
183
duress negates neither the voluntary act nor mens rea element of an offense. As
LaFave succinctly explains, even if under threat or duress, the defendant “has done
184
the act the crime requires and has the mental state which the crime requires.”
The Sixth Circuit has held that duress or a threat “has no relation to the voluntary
act requirement[, which] . . . is easily satisfied even when a person acts under
185
duress.” As Dressler puts it, conduct under threat “may be unwilling, but it is not
186
unwilled.” Similarly, one who commits a crime under threat intends to do so “for
187
the simple reason that she wants to avoid the harm threatened by the coercer.”
In addition to satisfying both the explicit and implicit elements, the defenses
specific to statutory rape fail to preclude liability for Ms. Lewis and similar victims.
Admittedly, Ms. Lewis would easily qualify for the lack of sexual interest defense

have physically resisted the attack; it need only be shown that the attacker ‘compels’ . . . by
force or by threat.’” (alteration in original)).
180. LAFAVE, supra note 30, at 860 (“[F]ear of death is not necessary . . . a threat of force
with a weapon is likely to suffice, but beyond this there is considerable uncertainty.”
(footnotes omitted)).
181. Traditional formulations tend to require that the threat produce within the victim a
fear of a requisite degree of harm, that the fear was reasonable in relation to the threat, and
that the fear preclude resistance. E.g., MODEL PENAL CODE § 213.1 cmt. 4(b) at 308–10
(Official Draft and Revised Comments 1985) (explaining that the traditional approach
determines the sufficiency of the threat by the sufficiency of the fear it produces in the
victim); ROBINSON, supra note 132, at 753 (same). The MPC rejected these requirements and
broadened the range of requisite threatened harm. The types of threatened harm that suffice
under the MPC are “imminent death, serious bodily injury, extreme pain or kidnapping.”
MODEL PENAL CODE § 213.1(1)(a). “About half of the states specify the threats in the same
or a similar fashion.” LAFAVE, supra note 30, at 861.
182. See supra text accompanying notes 5–14.
183. See, e.g., Doré, supra note 140, at 740–41 (explaining that coercive threats fail to
negate the actus reus and mens rea elements of an offense).
184. LAFAVE, supra note 30, at 492; see also ORMEROD, supra note 129, at 298
(“[D]uress is not inconsistent with a voluntary act or with an intention to do that act and to
cause the results which the actor knows will follow.”).
185. Takacs v. Engle, 768 F.2d 122, 126 (6th Cir. 1985) (“The voluntary act requirement
is a narrow one, removing only truly uncontrollable physical acts from criminal liability, and
is easily satisfied even when a person acts under duress.”); see also Dressler, supra note 28,
at 1359–60 (“[The actor under duress] chooses to violate the law. He chooses to commit the
criminal offense rather than to accept the threatened consequences. He would not have
chosen to commit the crime but for the threat, but it is still his choice, albeit a hard and
excruciatingly difficult choice.” (emphasis in original)).
186. Dressler, supra note 28, at 1360.
187. DRESSLER, supra note 25, at 307.
532 INDIANA LAW JOURNAL [Vol. 87:505

and would presumably qualify under the unchaste juvenile defense. But neither
188
defense is widely recognized.
Though widely recognized, the general defenses are also not a solution. While
Ms. Lewis clearly chose the lesser evil, she would not obtain the necessity defense
in some jurisdictions because the emergency emanated from a human, rather than
189
the requisite natural, threat. Unlike necessity, the duress defense requires a
190
human threat but poses additional obstacles. First, in some jurisdictions, duress
191
is unavailable as a defense to statutory rape. Second, the duress defense may be
inapplicable in a two-party situation where the party applying the duress is also the
192
victim of the crime committed under duress. That is, Alfonza is both applying
the duress and is also the victim of the crime (statutory rape) committed under
duress. And third, as an excuse defense, duress inappropriately concedes that Ms.
Lewis’s conduct was wrongful, and that she should have done something else. But
her conduct was not wrongful; she was the innocent victim of a horrific rape.
Unlike duress, self-defense is both a justification and applies to two-party
situations. But like duress, it also fails. First, self-defense generally requires that the
193
self-defender use physical force. Ms. Lewis did not use force. Second, self-
defense is inapplicable, in some jurisdictions, as a defense to offenses—like
194
statutory rape—which do not involve physical force.
No defense or combination of defenses supplies a satisfactory solution. While
Ms. Lewis and similar adult victims presumably qualify for the defenses specific to
statutory rape, they are not widely recognized. While the general defenses are
widely recognized, Ms. Lewis and similar adult victims fail to qualify for the
defenses and/or the defenses are inappropriate. By satisfying both the explicit and
implicit elements but satisfying neither general nor (recognized) specific defenses,
some adult victims of rape by threat of physical force commit statutory rape of their
juvenile rapists.

B. Rape by Coercion

Rape by coercion involves the perpetrator compelling the victim by threat of

195
nonphysical harm sufficient to overwhelm the reasonable person. For example,

188. See supra notes 113–15, 123–25, and accompanying text.

189. See supra notes 132–35 and accompanying text.
190. In addition to satisfying the human threat requirement for duress, Ms. Lewis also
clearly faced a sufficiently grave threat to which any reasonable person would have
submitted.
191. See supra notes144–47 and accompanying text.
192. See supra notes 148–51 and accompanying text.
193. See supra text accompanying notes 163–68.
194. See supra text accompanying notes 169–75.
195. See, e.g., N.H. REV. STAT. ANN. § 632-A:2 I(d) (LexisNexis 2007 & Supp. 2010)
(prohibiting intercourse if “the actor coerces the victim to submit by threatening to retaliate
against the victim”); id. § 632-A:1 II (defining “retaliate” as to “undertake action against the
interests of the victim, including, but not limited to: . . . mental torment or
abuse . . . extortion . . . [or] public humiliation or disgrace”); see also Patricia J. Falk, Rape
by Fraud and Rape by Coercion, 64 BROOK. L. REV. 39, 119 (1998) (noting that
2012] THE PARADOX 533

196
New Jersey prohibits the use of coercion to obtain intercourse, and defines
coercion, in part, as threatening to “[a]ccuse anyone of an offense,” or “[e]xpose
any secret which would tend to subject any person to hatred, contempt or
197
ridicule.” The MPC prohibits obtaining intercourse by “compel[ling] her[, the
victim,] to submit by any threat that would prevent resistance by a woman of
198
ordinary resolution.” The MPC commentary explains that threats of nonphysical
harm “may be sufficient to deny the freedom of choice that the law of rape and
related offenses seeks to protect and to subject a woman to unwanted and degrading
199
sexual intimacy.” Such threats may include, according to the MPC, “a threat to
200
cause her to lose her job or deprive her of a valued possession.”
When raped by a juvenile employing coercion, an adult commits statutory rape.
Consider the following example. Kenneth Porter blackmailed Kathleen Harden into
engaging in intercourse with him by threatening to claim that she had intercourse
with a juvenile, Larry Dunlap, and consequently she “would really be in
201 202
trouble.” Harden was a married sixth-grade teacher. Fearing the loss of her
marriage and career, Harden succumbed to the threat and engaged in intercourse
203
with Kenneth. Despite Kenneth admitting, and the prosecutor conceding, that
204
Kenneth obtained intercourse with her by blackmail, and thus perpetrated rape
205
by coercion of Harden, the prosecutor charged Harden, not Kenneth. Harden’s
206 207
rapist, Kenneth, was fifteen. Harden was prosecuted for statutory rape.

“approximately twenty jurisdictions” formally recognize, by statute, rape by coercion).

196. N.J. STAT. ANN. § 2C:14-2c(1) (West 2005).
197. Id. § 2C:13-5a(2)–(3).
198. MODEL PENAL CODE § 213.1(2)(a) (Official Draft and Revised Comments 1985).
199. Id. § 213.1 cmt. 4(b) at 312.
200. Id.
201. Gary Rotstein, UNITED PRESS INT’L, Jan. 13, 1982 (quoting Ms. Harden’s statement
as to what Larry Dunlap threatened). This account is based on the admissions of the
juveniles and the statements of the prosecutor. Thanks to Faye Hadley and Melanie Nelson
for finding this case.
202. Grade-School Teacher Acquitted of Statutory Rape, BOS. GLOBE, Jan. 19, 1982.
203. Paul Maryniak, Teacher Rape Trial Going to Jury Tomorrow, PITTSBURGH PRESS,
Jan. 17, 1982, at A3.
204. Paul Maryniak, Teacher Innocent; Boys’ Story Doubted, PITTSBURGH PRESS, Jan. 19,
1982, at A1.
205. Pennsylvania, the jurisdiction charging Harden with statutory rape, prohibits
obtaining intercourse “[b]y threat of forcible compulsion that would prevent resistance by a
person of reasonable resolution.” 18 PA. CONS. STAT. ANN. § 3121(a)(2) (West 2000). The
statute defines “forcible compulsion” broadly: “use of physical, intellectual, moral,
emotional or psychological force.” Id. § 3101. Pennsylvania courts have applied this broad
construction in upholding convictions where the defendants used threats of nonphysical
harm—psychological force—to obtain intercourse from their victims. See, e.g.,
Commonwealth v. Meadows, 553 A.2d 1006, 1013 (Pa. Super. Ct. 1989) (affirming
defendant’s conviction for rape of victim by the use of “psychological coercion”). Kenneth’s
use of blackmail to obtain intercourse would presumably qualify as the requisite compelling
psychological and emotional force to establish his rape by coercion of Harden.
206. Rotstein, supra note 201.
207. Id.
534 INDIANA LAW JOURNAL [Vol. 87:505

Despite being the victim of rape by coercion and despite being acquitted of
208
statutory rape in a jury trial, Harden’s alleged conduct nonetheless qualified as
statutory rape. As a thirty-one-year-old adult engaging in intercourse with a
juvenile, she satisfied the explicit elements of the offense. Harden also satisfied the
209
implicit elements. Though facing the difficult choice of loss of career and
marriage or intercourse with Kenneth, she nonetheless voluntarily engaged in the
210
intercourse and thus satisfied the voluntary act requirement. That the choice was
difficult and constrained does not preclude that there was a choice. Once the
difficult choice was made, Harden engaged in intercourse intentionally and
211
knowingly, thus satisfying any mens rea requirement.
No defense satisfactorily precludes her statutory rape liability. Harden arguably
would qualify for the lack of sexual interest and unchaste juvenile defenses, but
these are not widely recognized. Harden would fail to qualify for the necessity
defense because engaging in intercourse with one juvenile to avoid the threatened
accusation of her intercourse with another juvenile fails to constitute the lesser evil.
And because Harden neither was threatened with unlawful physical force nor did
212 213
she employ physical force, the defenses of duress and self-defense are
inapplicable. As a result, the offense of statutory rape imposes criminal liability on
Harden and most adult victims of rape by coercion (perpetrated by a juvenile).

C. Rape by Fraud

Rape by fraud consists of a perpetrator obtaining intercourse by fraud or

214
deception. Not all deceptions are sufficiently material to constitute rape by
215
fraud. Exaggerations of one’s wealth, status, prestige, or romantic commitment

208. Grade-School Teacher Acquitted of Statutory Rape, supra note 202.

209. One might argue that her choice to have intercourse with Kenneth was not that
difficult because, under Kenneth’s version of the facts, she consensually engaged in
intercourse with Larry prior to the blackmail. Rotstein, supra note 201. Nonetheless, if she
did have intercourse with Kenneth it was only after the blackmail threat. Id. As a result, at
the very least, she did face the difficult choice of Kenneth disclosing her purported
intercourse with Larry or engaging in intercourse with Kenneth.
210. See supra notes 21–24, 104–09, 183–86 and accompanying text.
211. See supra notes 21–25, 104–05, 187 and accompanying text.
212. See, e.g., ORMEROD, supra note 129, at 299 (“Threats of blackmail, no matter how
effective, are not sufficient [to qualify the recipient of the threat for the duress defense].”);
see also supra notes 136–39 and accompanying text; supra note 141.
213. See supra notes 161−68 and accompanying text.
214. See, e.g., Russell L. Christopher & Kathryn H. Christopher, Adult Impersonation:
Rape by Fraud as a Defense to Statutory Rape, 101 NW. U. L. REV. 75, 91–110 (2007)
(discussing the intersection of the laws of rape by fraud and statutory rape, and arguing for
the recognition of a new form of rape by fraud).
215. See, e.g., ESTRICH, supra note 66, at 102–03 (“The ‘force’ or ‘coercion’ that negates
consent ought to be defined to include . . . misrepresentations of material fact.”); Martha
Chamallas, Consent, Equality, and the Legal Control of Sexual Conduct, 61 S. CAL. L. REV.
777, 833 (1988) (differentiating material frauds sufficient to establish rape by fraud liability
from nonmaterial frauds that “will be dismissed as insignificant”).
2012] THE PARADOX 535

216
are deemed as seller’s puffery and thought too trivial to warrant rape liability.
The most widely recognized forms of rape by fraud include deceptions as to the
nature of the act that the victim performs and deceptions as to the identity of the
217
victim’s partner in intercourse. Examples of these more serious deceptions
include obtaining intercourse by deceiving the victim into believing that she is
receiving a medical examination (typically this occurs in the gynecological
218
context) and by impersonating another’s spouse (typically the perpetrator crawls
into the victim’s bed at night while the victim is asleep; upon waking the victim
219
assumes the perpetrator to be his or her spouse).
When raped by a juvenile employing fraud, an adult commits statutory rape.
Consider the following example. Ben falls asleep waiting for his wife, Jane, to
220
return home from working late at the hospital. “He was awakened by someone
massaging him, and then felt a hand go between his legs. The bedroom was kept
221
very dark.” Ben asks her why she is back so late. A voice whispers, almost
inaudibly, that work was crazy. Ben begins to have intercourse with the person he
assumes to be his wife. “He then realized that the person was not his [wife]. He
jumped up and turned on the light and saw the babysitter. . . . He told her to get out
222 223
of the bed.” Despite Ben being the victim of rape by fraud, the prosecutor
charges Ben, not Ben’s rapist. Ben’s rapist is thirteen. Ben is charged with statutory
rape of his juvenile rapist.
By being the victim of rape by fraud, Ben commits statutory rape. By engaging
in intercourse with an underage juvenile, Ben satisfies the explicit elements. Ben

216. See, e.g., People v. Evans, 379 N.Y.S.2d 912, 922 (N.Y. Sup. Ct. 1975) (“It is not
criminal conduct for a male . . . to assure any trusting female that, as in the ancient fairy tale,
the ugly frog is really the handsome prince.”); RICHARD A. POSNER, SEX AND REASON 392
(1992) (“Seduction, even when honeycombed with lies that would convict the man of fraud
if he were merely trying to obtain money, is not rape.”).
217. See, e.g., Anne M. Coughlin, Sex and Guilt, 84 VA. L. REV. 1, 19 (1998) (“The
traditional approach . . . [finds rape] by fraud in only two narrow contexts. The
first . . . involves a man . . . deceiving the woman into thinking that she is submitting to a
nonsexual act. The other tactic . . . involves a man who obtains intercourse by masquerading
as the woman’s husband.”); Falk, supra note 195, at 119 (noting “the two archetypal rape by
fraud cases, fraudulent medical treatment and husband impersonation”).
218. E.g., People v. Ogunmola, 238 Cal. Rptr. 300, 305 (Cal. Ct. App. 1987) (upholding
conviction of gynecologist for rape by fraud for misrepresenting to a patient that penetration
would be effected by medical instrument); People v. Quinlan, 596 N.E.2d 28, 31 (Ill. App.
Ct. 1992) (upholding sexual assault conviction of respiratory therapist who effected digital
penetration of patient by fraudulently misrepresenting it as a diagnostic test).
219. E.g., OHIO REV. CODE ANN. § 2907.03(A)(4) (LexisNexis 2010) (prohibiting
intercourse when “[t]he offender knows that the other person submits because the other
person mistakenly identifies the offender as the other person’s spouse”); Pinson v. State, 518
So. 2d 1220, 1224 (Miss. 1988) (upholding defendant’s rape by fraud conviction for
obtaining intercourse with victim by impersonating her husband).
220. The example is based on Commonwealth v. Knap, 592 N.E.2d 747, 748 (Mass.
1992), which upheld the defendant’s conviction for statutory rape.
221. Id.
222. Id.
223. See supra notes 214–19 and accompanying text.
536 INDIANA LAW JOURNAL [Vol. 87:505

also satisfies the implicit elements. Though constrained by acting under conditions
of ignorance, Ben’s conduct is nonetheless considered voluntary for the purpose of
224
the voluntary act requirement. Ben also satisfies any mens rea requirement. Ben
both intends to engage in intercourse (albeit with a different person—his wife) and
225
knows that he is engaging in intercourse.
No defense would satisfactorily preclude statutory rape liability for Ben. The
226
lack of sexual interest defense would fail; Ben was very much sexually
interested. The unchaste juvenile defense might be raised, but it has been largely
abolished.227 Because Ben neither faced a choice of evils, nor was threatened, nor
did he employ physical force, the defenses of necessity, duress, and self-defense
228
would be inapplicable. As a result, Ben and some other adult victims of rape by
fraud commit statutory rape of their juvenile rapists.

D. Rape of the Mentally Disabled

Intercourse with a mentally disabled person constitutes rape despite the absence
of force, coercion, or fraud because the victim is considered incapable of legally
229
consenting. The MPC criminalizes intercourse with a person who “suffers from a
mental disease or defect” if the mental incapacity renders the victim “incapable of
230
appraising the nature of her conduct.” State code formulations of the requisite
standard for mental disability include “(i) whether the woman was capable of
expressing any judgment on the matter; (ii) whether she had the ability to
comprehend the moral nature of the act; and (iii) whether she had the capacity to
231
understand the character and probable consequences of intercourse.”

224. See supra notes 103–09 and accompanying text.

225. Not all adult victims of rape by fraud, as perpetrated by a juvenile, would satisfy a
mens rea element of statutory rape. Suppose an adult consents to penetration by medical
instrument by a licensed gynecologist. Instead, what the adult unknowingly receives is
sexual intercourse with a juvenile. The adult has neither intent nor knowledge as to the
intercourse. Either mens rea requirement would preclude statutory rape liability for an adult
victim of this type of rape by fraud.
226. An adult victim of a different type of rape by fraud, as perpetrated by a juvenile,
might well succeed under the lack of sexual interest defense. An adult who is consenting to a
medical examination and unknowingly receives intercourse, see supra notes 217–18 and
accompanying text, would lack sexual interest and thus would avoid liability for statutory
rape under this defense. However, the availability of the defense is limited to only a few
jurisdictions. See supra notes 113–14 and accompanying text.
227. See supra note 125 and accompanying text.
228. See supra notes 127–30, 136–42, 161–68 and accompanying text.
229. See, e.g., State v. Ortega-Martinez, 881 P.2d 231, 239 (Wash. 1994) (en banc)
(upholding defendant’s conviction for intercourse with a victim incapable of consent by
reason of a mental disability that prevented “meaningfully understanding the nature or
consequences of sexual intercourse”); MCGREGOR, supra note 58, at 156–57 (“If there is no
understanding about the nature of sex, its meaning in society, and its consequences, then that
person cannot consent to sex.”).
230. MODEL PENAL CODE § 213.1(2)(b) (Official Draft and Revised Comments 1985).
231. Id. § 213.1 cmt. 5(c) at 321 (footnotes omitted); see also Deborah W. Denno,
Sexuality, Rape, and Mental Retardation, 1997 U. ILL. L. REV. 315, 344–46 (identifying six
2012] THE PARADOX 537

When raped by a juvenile, a mentally disabled adult commits statutory rape.

Consider the earlier example of Raymond Garnett, a twenty-year-old mentally
disabled man, reading at a third-grade level, with an IQ of fifty-two, whose
232
conviction for statutory rape was upheld. Despite being the victim of rape of a
233
mentally disabled person, Raymond satisfied both the explicit and implicit
elements of statutory rape. Raymond voluntarily engaged in the intercourse thereby
satisfying the voluntary act requirement. And Raymond had both knowledge and
intent regarding the intercourse thereby satisfying any mens rea element.
No defenses applied. Because he neither faced a choice of evils, nor faced a
threat of physical harm, nor employed physical force, neither necessity, duress, nor
234
self-defense applied. And because Raymond was clearly sexually interested, the
lack of sexual interest defense did not apply. Though the juvenile may well have
been unchaste, the unchaste juvenile defense may no longer be available in any
state.235 As a result, the offense of statutory rape imposes criminal liability on
236
Raymond and similar adult victims of rape of the mentally disabled.

E. Conclusion

This Part applied the explicit and implicit elements of the offense of statutory
rape, defenses specific to statutory rape, and defenses of general application to
examples of four types of rape perpetrated by a juvenile against an adult. Neither

different tests jurisdictions employ to determine a mentally disabled person’s legal capacity
to consent).
232. See supra text accompanying notes 45–52.
233. By engaging in intercourse with a juvenile, Raymond is both a victim of rape of a
mentally disabled person and a perpetrator of statutory rape. In Maryland, both are
criminalized as second degree rape:
(a) . . . A person may not engage in vaginal intercourse with another:
...
(2) if the victim is a mentally defective individual . . . or
(3) if the victim is under the age of 14 years, and the person
performing the act is at least 4 years older than the victim.
MD. CODE ANN., CRIM. LAW § 3-304(a) (LexisNexis 2002); id. § 3-301(b) (defining
“mentally defective individual” as one “who suffers from mental retardation or a mental
disorder, either of which temporarily or permanently renders the individual substantially
incapable of: (1) appraising the nature of the individual’s conduct . . .”). Perhaps one might
quibble that Raymond, though mentally disabled, is not sufficiently disabled to qualify as
“mentally defective” and Erica’s intercourse with him therefore does not qualify as
second-degree rape. But, of course, we can easily imagine cases where a juvenile does
engage in intercourse with a person who is undeniably “mentally defective.” For a
hypothetical example considered in Garnett, see Garnett v. State, 632 A.2d 797, 807 (Md.
1993) (Eldridge, J., dissenting).
234. See supra notes 127–30, 136–42, 161–68 and accompanying text.
235. See supra note 125 and accompanying text.
236. For additional cases of adult victims of rape of a mentally disabled person
prosecuted for statutory rape of their juvenile rapists, see infra notes 270–84 and
accompanying text. For an argument that Garnett and other similar adult victims should not
be subject to liability for statutory rape, see Elizabeth Nevins-Saunders, Incomprehensible
Crimes: Defendants with Mental Retardation Charged with Statutory Rape, 85 N.Y.U. L.
REV. 1067, 1128 (2010).
538 INDIANA LAW JOURNAL [Vol. 87:505

the elements of the offense nor defenses, individually or collectively, preclude

liability for statutory rape for the adult rape victim. In at least some instances of
each of the four types of rape, the offense of statutory rape imposes criminal
liability on the adult for the same intercourse by which the adult is a victim of rape.

III. EXCULPATING THE ADULT RAPE VICTIM

Part II demonstrated the paradox of statutory rape: the offense criminalizes

being the victim of rape. Part III argues that this fundamental overbreadth is
unacceptable. It both subjects adults to undeserved criminal liability for statutory
rape of their juvenile rapists and subverts the purposes and principles of the laws of
rape and statutory rape. Consequently, the law of statutory rape must be revised to
preclude liability for being raped. Either the offense must be redefined or a new
defense adopted. After proposing a possible solution, this Part anticipates and
counters four objections.

A. Why Adult Rape Victims Do Not Deserve Liability

By criminalizing being raped, the law of statutory rape subjects adult rape
victims to undeserved liability. This section presents two reasons why such adults
do not deserve liability. First, by criminalizing being the victim of rape, the law of
statutory rape goes beyond criminalizing merely innocent conduct—it criminalizes
conduct that is both innocent and protected. Of course, that many criminal offenses
are somewhat overbroad and reach innocent conduct is unremarkable. Some
overbreadth is intentional as the inevitable and accepted price of avoiding excessive
underbreadth. But by criminalizing being raped, the offense of statutory rape is
unintentionally and unacceptably overbroad because it criminalizes conduct that is
protected by law. The law of rape, by prohibiting obtaining intercourse by threat of
physical force, coercion, fraud, etc., upon penalty of incarceration, deems it
worthwhile to protect persons from becoming the victim of one of those crimes.
But statutory rape law subjects us to punishment for that which rape law seeks to
protect us from—being raped. Conduct that is protected by the law should not also
punished by the law.
Second, the rationale for prohibiting intercourse with juveniles no longer applies
when a juvenile rapes an adult. Perhaps the primary rationale is to protect juveniles
237
from sexual exploitation by older adults who may be sexual predators. But if a
juvenile rapes an adult the concern of the risk of sexual exploitation is lessened if,
not absent entirely. And if there is any sexual exploitation, it is by the juvenile of
the adult. For example, are we really concerned that by brutally raping Ms. Lewis,
Alfonza Smalls is being sexually exploited by his rape victim? Are we really
concerned that by being the victim of Alfonza Small’s brutal rape, Ms. Lewis is
sexually exploiting her rapist?

237. This is evidenced by the shift, in a majority of jurisdictions, from criminalizing

peer-on-peer intercourse to exempting it from statutory rape liability by the use of requisite
age spans between the ages of perpetrator and victim and/or minimum age requirements for
perpetrators. E.g., COCCA, supra note 4, at 29; see also infra notes 248–50 and
accompanying text.
2012] THE PARADOX 539

B. Consequences of Criminalizing Being Raped

The paradox of statutory rape has significant and unfortunate consequences for
the laws of both rape and statutory rape. This section first demonstrates that
criminalizing being raped frustrates the design and general purposes of both
statutory rape and rape law. Second, it undermines the hard-fought efforts to
abolish the much-criticized resistance requirement in the law of rape. Third,
criminalizing being raped delegitimizes statutory rape’s strict liability rule, still
retained by a majority of jurisdictions.

1. Undermines Purposes of the Laws of Rape and Statutory Rape

The fundamental overbreadth of statutory rape generates a conflict between the

law of rape and the law of statutory rape. By criminalizing being raped, the offense
of statutory rape subjects us to punishment for what the law of rape seeks to protect
us from. As a result, the law of statutory rape is undermining the very purpose of
the law of rape. By imposing criminal liability for being raped, the law of statutory
rape deters rape victims from seeking the protection afforded by the law of rape. In
order for a victim of rape (perpetrated by a juvenile) to seek rape law’s protection,
the victim must risk self-incriminating to a charge of statutory rape.
The law of statutory rape also suffers. First, criminalizing being raped dilutes
the stigma associated with committing statutory rape. What level of stigma resides
in the commission of statutory rape if innocent victims like Ms. Lewis commit it?
What degree of stigma attaches to a crime that one commits by being raped?
Second, criminalizing being the victim of rape dilutes the moral authority and
rational coherence of the offense. For example, while self-defense law permits Ms.
Lewis to use any necessary force, even lethal force, against her juvenile rapist
238
holding a gun to her head, it does not require the use of such force. But by
prohibiting being raped by a juvenile, the law of statutory rape requires Ms. Lewis
to use any necessary force to resist or prevent the intercourse. As a result, if Ms.
Lewis uses lethal force and prevents the intercourse from occurring with her
would-be juvenile rapist, Ms. Lewis would be acting in justifiable self-defense and
would neither be criminally liable for homicide nor statutory rape. But if she fails
to use the force necessary to resist or prevent the intercourse, the offense of
statutory rape imposes liability. The resulting implicit messages our criminal law
sends are as follows:

(i) Killing a juvenile rapist is lawful; submitting to a juvenile

rapist is unlawful.
(ii) Killing a (would-be) juvenile rapist spares the juvenile from
sexual exploitation; submitting to a juvenile rapist subjects the
juvenile to sexual exploitation.
(iii) Therefore, better to kill a (would-be) juvenile rapist than to
sexually exploit the juvenile rapist.

238. See supra note 158.

540 INDIANA LAW JOURNAL [Vol. 87:505

Such implicit messages are unfortunate given that the ultimate purpose of the law
of statutory rape is to protect juveniles from harm.

2. Undermines Abolition of Rape Law’s Resistance Requirement

239
Statutory rape law’s “hidden” resistance requirement undermines efforts to
240
rid rape law of its “pernicious” traditional resistance requirement. By
criminalizing being raped by a juvenile, statutory rape law imposes a duty on an
adult to resist or prevent being raped by a juvenile. Failure to fulfill this duty
subjects the adult to criminal liability for statutory rape. This hidden resistance
requirement of statutory rape law is even worse than the traditional resistance
requirement of rape law. While the legal consequence of failing to resist under the
traditional resistance requirement is that the rape victim risks the acquittal of her
rapist, the legal consequence of failing to resist under the hidden resistance
requirement is that the adult rape victim risks criminal liability for statutory rape.
Because existing statutory rape law entails this hidden resistance requirement,
acceptance of the status quo of statutory rape law entails acceptance of the hidden
resistance requirement. And if the even-worse hidden resistance requirement of
statutory rape law is acceptable, then a fortiori the less-worse traditional resistance
requirement is also acceptable.
This potentially presents rape law reformers, courts, and legislatures with a
dilemma. How can one seek to abolish rape law’s traditional resistance requirement
as being impermissible while maintaining the status quo of statutory rape law that
makes resistance legally obligatory? Consistency requires that acceptance of the
status quo of statutory rape law with its even-worse hidden resistance requirement
entails acceptance of the less-worse traditional resistance requirement. And
undertaking to abolish the less-worse traditional resistance requirement entails a
commitment to revise statutory rape law so as to eliminate the even-worse hidden
resistance requirement. As a result, rape law reformers, courts, and legislatures
must choose to either (i) accept the status quo of statutory rape law and abandon
efforts to abolish the traditional resistance requirement or (ii) continue to seek
abolition of the traditional resistance requirement and endeavor to revise the
offense of statutory rape.

3. Undermines Statutory Rape’s Strict Liability Rule

Criminalizing being raped jeopardizes the arguable legitimacy of the strict

liability rule in statutory rape. Under strict liability, an actor’s honest and
reasonable belief that her underage partner is above the age of consent is not a
241
defense. Courts and commentators offer this justification: despite eliminating
mens rea as to the victim’s age, strict liability does not entirely dispense with the
fault and culpability of the statutory rapist. By freely choosing to engage in
intercourse with a young person who might turn out to be underage, one culpably

239. See supra text accompanying notes 56–68.

240. See supra note 62 and accompanying text.
241. See supra notes 90–95 and accompanying text.
2012] THE PARADOX 541

242
assumes the risk that one’s young partner will turn out to be underage. Though
243
not persuasive to all, the claimed justification is, in general, arguably
244
plausible. But it is entirely implausible when applied to those who commit
statutory rape only because they were raped by a juvenile. Moreover, such
application of the strict liability rule exposes the illegitimacy of the justification.
Adult rape victims neither freely choose to be raped nor freely choose to be raped
by a juvenile. As a result, they do not culpably assume the risk that their rapist will
turn out to be underage. Because one does not culpably assume the risk of being
raped, one also does not culpably assume the risk that one’s rapist may turn out to
be underage.
A rationale offered by the Supreme Court, relied upon by the Maryland Court of
Appeals, is also inapplicable to adults raped by juveniles: “the perpetrator confronts
the underage victim personally and may reasonably be required to ascertain that
245
victim’s age.” While plausible when an adult consensually engages in
intercourse with a juvenile, the rationale is implausible when the adult is raped. Is it
truly “reasonable” to require an adult to ascertain the age of her youthful rapist to
determine whether the law of statutory rape obligates her to refrain from
intercourse? Is it truly “reasonable” to require Ms. Lewis to ascertain the age of the
youthful rapist holding a gun to her head?
This places proponents of strict liability and courts and legislatures applying
strict liability in a dilemma. Maintaining the justifiability of strict liability’s
application to statutory rape requires revising statutory rape law to exclude adults
who commit statutory rape of their juvenile rapists from liability. And failing to so
revise statutory rape law requires either jettisoning the strict liability rule or the

242. E.g., Garnett v. State, 632 A.2d 797, 807 (Md. 1993) (Eldridge, J., dissenting)
(explaining the rationale for strict liability in statutory rape as “a defendant is able to
appreciate the risk involved by intentionally and knowingly engaging in sexual activities
with a young person”); Carpenter, supra note 53, at 321 (“[Strict liability] serves as an
appropriate substitute for mens rea because the actor is not entirely blameless. Culpability
arises from the actor’s assumption of the risk in engaging in sexual intercourse with someone
who might be underage.”).
243. E.g., Husak, supra note 101, at 189 (“Little about strict liability has evoked much
agreement among commentators except for their opposition to it.”); Laurie L. Levenson,
Good Faith Defenses: Reshaping Strict Liability Crimes, 78 CORNELL L. REV. 401, 403 n.7
(1993) (“[T]he dominant view appears to be that in the Anglo-American culture, the use of
strict liability crimes is arbitrary and unreasonable.”).
244. For defenses of the strict liability rule, see Meir Dan-Cohen, Decision Rules and
Conduct Rules: On Acoustic Separation in Criminal Law, 97 HARV. L. REV. 625, 656 (1984)
(“A defendant’s mistaken belief regarding the victim’s actual age may, consistently with the
principle of mens rea, be deemed irrelevant to his legal duties . . . .”); Kyron Huigens, Is
Strict Liability Rape Defensible?, in DEFINING CRIMES: ESSAYS ON THE SPECIAL PART OF THE
CRIMINAL LAW 196, 206, 217 (R. A. Duff & Stuart P. Green eds., 2005) (arguing that strict
liability is consistent with the moral culpability of the offender); Dan M. Kahan, Is
Ignorance of Fact an Excuse Only for the Virtuous?, 96 MICH. L. REV. 2123, 2123–26
(1998) (justifying strict liability when an offender is immoral and strategically attempts to
exploit a loophole).
245. Owens v. State, 724 A.2d 43, 51 (Md. 1999) (quoting United States v. X-Citement
Video, Inc., 513 U.S. 64, 72 n.2 (1994)).
542 INDIANA LAW JOURNAL [Vol. 87:505

pretense that its application is justified by resort to the culpability of the offender.
As a result, proponents of the strict liability rule for statutory rape should be among
the most ardent advocates for recognizing an exception to statutory rape for adults
raped by juveniles. Only by revising statutory rape law so as to exclude adult rape
victims from the reach of the strict liability rule is the rationale of strict liability
restored to arguable legitimacy.

C. A Possible Solution

The paradox of statutory rape—criminalizing being raped—arises in all fifty

states, in jurisdictions both employing and rejecting strict liability, in model codes
246 247
and statutes, and even in foreign jurisdictions. The problem is due not to some
idiosyncratic formulation of the prohibition or careless drafting. It is systemic,
recurring, and pervasive. The criminalization of being raped stems from the very
concept of the offense of statutory rape. As a result, the nature of the solution
should match the nature of the problem. While minimally (if at all) disruptive of
existing law, the proposed solution is tailored to be broad enough to preclude
perhaps any statutory rape offense from criminalizing being raped.
The solution borrows a concept from a recent reform of statutory rape law—the
age span. The majority of jurisdictions now feature age-span provisions in which
248
the perpetrator must be x years older than the juvenile victim. This removes from
the protection of statutory rape laws, and decriminalizes, so-called peer-on-peer
intercourse where both parties are within a certain age range, typically three
249
years. The rationale of these age spans is that the greater the age differential, the
250
greater the risk of coercion and exploitation of the younger party. But where the
two parties are within the same age range, the prospect of coercion and exploitation
is minimal.

246. See MODEL PENAL CODE § 213.3(1)(a) (Official Draft and Revised Comments 1985)
(criminalizing intercourse with a juvenile less than sixteen by a perpetrator at least four years
older than the victim); SCHULHOFER, supra note 75, at 283–84 (criminalizing, under a
proposed model statute, § 202(c)(2), intercourse with a victim at least thirteen and less than
sixteen by a perpetrator at least four years older than the victim). Both the MPC and Stephen
Schulhofer’s model provision would subject an adult to criminal liability for statutory rape
of her juvenile rapist.
247. The same problem arises in the United Kingdom. See Sexual Offences Act, 2003, c.
42, § 9 (Eng.) (criminalizing sexual activity with a person under the age of sixteen by a
person over eighteen). This provision subjects an adult to criminal liability for statutory rape
of her juvenile rapist.
248. See supra note 99 and accompanying text.
249. See, e.g., COCCA, supra note 4, at 23–24, 37 (citing eight states that criminalize
peer-on-peer intercourse as statutory rape).
250. See, e.g., Leigh B. Bienen, Defining Incest, 92 NW. U. L. REV. 1501, 1571 (1998)
(“The purpose of the age limitation was and is to protect a younger person from an older
person. . . . [It is] designed to protect against sexual exploitation and abuse.”); see also
COCCA, supra note 4, at 33 (depicting the age span as a “liberal feminist” compromise
between “feminist sex radicals” who advocated for the elimination of barriers to female
sexual autonomy, like statutory rape laws, and “radical feminists” who advocated for the
construction of even greater barriers against all males, young and old).
2012] THE PARADOX 543

As a result, in jurisdictions adopting these age-spans, juveniles no longer lack

entirely the legal capacity to consent. Instead, we might term their legal capacity to
consent as conditional. They only lack the legal capacity to consent when they
engage in intercourse with a person sufficiently older than themselves, when the
prospect for coercion and exploitation of the juvenile is substantial. But juveniles
enjoy the legal capacity to consent when they engage in intercourse with those
within their age-span, when the prospect for coercion and exploitation of the
juvenile is minimal.
This principle of conditional legal capacity to consent suggests a solution. When
a juvenile rapes an adult, the prospect of the juvenile being coerced and exploited is
as minimal as when a juvenile engages in intercourse with another within the age-
251
span. And just as the partner within the age-span is not committing statutory rape
of the juvenile because the juvenile is legally consenting, so also an adult would not
be liable for statutory rape of her juvenile rapist because the juvenile would be
understood as legally consenting. The resulting solution would be to expand the
scope of the existing conditional legal capacity to consent doctrine: juveniles’ legal
capacity to consent is conditioned on intercourse with those inside the age-span or
on raping those outside the age-span. Thus, a juvenile’s adult rape victim would not
be committing statutory rape because the juvenile rapist would be legally
consenting.

D. Objections

This section anticipates and counters four possible objections to the argument
252
that the law of statutory rape is fundamentally overbroad and requires revision.
The first three present some possible negative consequences of any solution
revising statutory rape law to preclude adults’ liability for statutory rape of their
juvenile rapists. The fourth maintains that a procedural, rather than a substantive,
solution is preferable. None of these objections, however, is persuasive.

1. Undermines Deterrent Effect of Statutory Rape

One might argue that engrafting an exception or defense to statutory rape

liability for adults raped by juveniles would undermine the deterrent effect of the
prohibition against statutory rape. Adults will be more likely to commit the offense
under the belief that they might satisfy an exception or defense. The objection is
unpersuasive for three reasons. First, any such loss of deterrence is offset by a gain
in deterrence achieved by maintaining a high level of stigma associated with the
commission of the crime. Without an exemption for adults raped by juveniles, the
stigmatizing effect of committing statutory rape is diminished. How much stigma
attaches to committing statutory rape if by being the victim of a horrific rape, like
Ms. Lewis, one commits statutory rape? But by recognizing an exemption, there is

251. The prospect of coercion and exploitation of the juvenile is not merely minimal
when a juvenile rapes an adult. It may be nonexistent. After all, by raping the adult, it is the
juvenile that is coercing and exploiting the adult.
252. For responses to additional objections, see supra notes 111, 175 and accompanying
text.
544 INDIANA LAW JOURNAL [Vol. 87:505

no loss of deterrence due to a loss of stigma associated with commission of the

crime. As a result, any loss of deterrence due to limiting the scope of the
prohibition is offset by a gain in deterrence due to maintaining a high level of
stigma associated with committing the offense.
Second, even if there was a net loss of deterrence, it would be no greater than
the loss of deterrence that we already accept from the recognition of a number of
defenses and exceptions to statutory rape. Consider the following exceptions to the
scope of statutory rape that are currently recognized: the perpetrator is
insufficiently older than the victim, the perpetrator does not meet the requisite
minimum age, the perpetrator had an honest and reasonable belief that the juvenile
was above the age of consent, the perpetrator was not motivated by a sexual
interest, the penetration was for a valid medical purpose, and the victim and
253
perpetrator are married to each other. All of these exceptions no doubt
undermine deterrence to some extent, yet they are recognized despite their potential
to diminish deterrence. Similarly, excluding adults raped by juveniles from the
scope of statutory rape liability for the very same intercourse by which the adult
was victimized should also be recognized.
And third, even if recognizing the proposed exception triggered a greater loss of
deterrence than all the other existing exceptions to statutory rape, fundamental
fairness may trump deterrence concerns. Perhaps any defense or exception to a
criminal offense undermines the deterrent effect of that offense. For example, the
defense of self-defense presumably undermines the deterrent effect of homicide
offenses. But surely such loss of deterrence is not a sufficient basis to eliminate or
refuse to recognize the defense. Fundamental fairness requires recognition of the
defense despite any loss of deterrence. Similarly, fundamental fairness requires that
adults not face criminal liability for statutory rape of their juvenile rapists.

2. Chills the Reporting of Statutory Rape

One might argue that excluding adults raped by juveniles from statutory rape
liability would chill the incidence of statutory rape victims reporting the crime.
Juveniles would be less likely to report the crime if they knew that the adult might
well claim as a defense that the juvenile raped the adult, thereby exposing the
juvenile to criminal liability.
Even if true, the objection is unpersuasive. Failing to exclude such adult rape
victims from statutory rape liability also creates a chilling effect. Without an
exemption, the incidence of reporting by an adult, of being raped by a juvenile,
would be chilled. An adult raped by a juvenile would be reluctant to report being
raped for fear of being exposed to criminal liability for statutory rape. To the extent
that chilling of the incidence of statutory rape reporting militates against the
exemption, then the chilling of the incidence of (adult) rape reporting militates
toward recognizing the exemption. As a result, any diminution of the incidence of
statutory rape reporting would be offset by the increased reporting of rape of adults
perpetrated by juveniles.

253. As to the latter two exceptions, see supra note 112.

2012] THE PARADOX 545

3. Inconsistency with Statutory Rape’s Strict Liability Approach

One might argue that excluding adults raped by juveniles from the reach of
statutory rape liability is inconsistent with the adoption of strict liability. That is,
statutory rape is a strict liability offense precisely because we wish to foreclose the
defendant from asserting defenses where the defendant has satisfied the minimal
elements of the offense. Before directly addressing the objection, two technical
points should be made. First, the majority rule of strict liability for statutory rape is
254
not followed in over twenty states. As a result, the objection is entirely
inapplicable in almost half of the states. Second, statutory rape is neither a strict
liability offense as a whole nor is it an absolute liability offense. It is only strict
255
liability as to one element—the age of the victim. Defenses unrelated to the
256
defendant’s lack of mens rea as to the age of the victim would and do still apply.
As a result, strict liability as to one element of statutory rape does not preclude an
exemption for adult rape victims.
More broadly, the objection also fails because the very rationale for applying
strict liability to statutory rape is inapplicable where a juvenile rapes an adult.
Application of the strict liability rule to adults who commit statutory rape of their
juvenile rapists demonstrates the illegitimacy of the claimed justification for strict
257
liability. One neither culpably assumes the risk of being raped nor culpably
assumes the risk that one’s rapist will turn out to be underage. Rather than
recognition of an exception being inconsistent with the strict liability rule, failing to
recognize an exception exposes the illegitimacy of the strict liability approach to
statutory rape.

4. Prosecutorial Discretion

One might concede the problem of statutory rape law’s fundamental

overbreadth, but argue that the preferable solution is procedural—reliance on
prosecutorial discretion—rather than substantive. That is, adults committing
statutory rape, by the same intercourse by which the juvenile raped them, would
simply not be prosecuted.
Prosecutorial discretion is an unsatisfactory solution for several reasons. First, in
general, sound and rational law is preferable to fundamental and glaring
258
overbreadth mitigated by prosecutorial discretion. As Herbert Wechsler, the

254. See supra note 95.

255. See supra note 101 and accompanying text.
256. See supra notes 101–03 and accompanying text.
257. See supra Part III.B.3.
258. See, e.g., Lawrence v. Texas, 539 U.S. 558, 572 (2003) (invalidating a Texas statute
criminalizing sodomy as applied to consensual acts between adults based, in part, on the
harm of selectively enforced overbroad laws: “the laws were arbitrarily enforced and thus
invited the danger of blackmail”). The harm of overbreadth plus prosecutorial discretion is
particularly acute in statutory rape law. ASHWORTH, supra note 96, at 340 (noting, with
regard to statutory rape, that “it is doubtful whether . . . [prosecutorial discretion in not
prosecuting cases of innocent conduct that fall within a statute] constitutes sufficient
protection for young people’s right to respect for private life”); Richard Delgado, Statutory
546 INDIANA LAW JOURNAL [Vol. 87:505

principal drafter of the MPC, warned, prosecutorial discretion not only undermines
259
the rule of law but is “the antithesis of law”: “[it] cannot be accepted as a
260
substitute for a sufficient law.” More specifically, statutory rape scholar Kay
Levine argues that prosecutorial discretion is anti-democratic because it precludes
citizens and legislatures from appreciating that the formal law of statutory rape is
261
“intolerable.” While prosecutorial discretion may be defended as a necessary evil
when the law is unavoidably overbroad, its evil becomes indefensible if employed
unnecessarily. This is the case here because the offense of statutory rape is
avoidably overbroad. The proposed solution, discussed in the previous section, is
modest, narrowly tailored, and minimally (if at all) disruptive of the goals of the
offense. Such a simple, modest, narrowly tailored revision achieving a sound and
rational law is preferable to reliance on prosecutorial discretion to mitigate the
adverse effects of an unsound, irrational law.
Second, less glaring and less fundamental overbreadth has been resolved by
262
recognizing numerous limitations on the scope of the offense, as listed above,
rather than reliance on prosecutorial discretion. If such examples of less
fundamental overbreadth were not resolved by reliance on prosecutorial discretion,
why should the more fundamental overbreadth be thought to be satisfactorily
resolved by prosecutorial discretion?
Third, reliance on prosecutorial discretion fails to avoid many of the significant
263
conceptual and practical consequences of criminalizing being raped. It does not
eliminate the conflict between the law of rape and the law of statutory rape that

Rape Laws: Does It Make Sense to Enforce Them in an Increasingly Permissive Society?,
A.B.A. J., Aug. 1996, at 86, 87 (arguing that the combination of overbreadth and
prosecutorial discretion leads to arbitrary, selective, and discriminatory prosecution—those
prosecuted for statutory rape are disproportionally African American and Hispanic,
especially when the victim is white); Michael H. Meidinger, Peeking Under the Covers:
Taking a Closer Look at Prosecutorial Decision-Making Involving Queer Youth and
Statutory Rape, 32 B.C. THIRD WORLD L.J. (forthcoming 2012), available at
http://ssrn.com/abstract=1920959 (contending that homosexual “youth may be selectively
prosecuted for statutory rape because prosecutors are given broad discretion in whom they
prosecute and heterosexual intimacy norms may be part of their decision-making process”).
259. Marc L. Miller & Ronald F. Wright, The Black Box, 94 IOWA L. REV. 125, 127
(2008).
260. Herbert Wechsler, The Challenge of a Model Penal Code, 65 HARV. L. REV. 1097,
1102 (1952).
261. Levine, supra note 72, at 746. Levine explains the difficulty with prosecutorial
discretion as applied to statutory rape as follows:
[W]hen dealing with controversial or overbroad laws like statutory rape, we
need to insist on more disclosure about the formal law itself in order to fully
exercise our democratic choices. We should lobby for increased publicity about
the scope of the formal law in order to put prosecutorial practices in
perspective. Only with this kind of information can citizens and legislators
fairly evaluate whether the statute warrants modification. Only with this kind of
information can we ensure that our criminal laws retain their claims to
legitimacy . . . .
Id. at 747.
262. See supra text accompanying note 253.
263. See supra Part III.B.
2012] THE PARADOX 547

frustrates the very purpose of the offense of rape: what the law of rape seeks to
protect us from—being raped—the law of statutory rape punishes us for. It cannot
resolve the inconsistency between the endeavor to abolish the traditional resistance
requirement in rape law and a statutory rape law that makes resistance legally
obligatory. Prosecutorial discretion fails to restore moral authority to a law of
statutory rape that is unsound and irrational in criminalizing being raped by a
juvenile. And it fails to reverse the dilution of the stigma associated with
committing statutory rape when the victim of a brutal rape like Ms. Lewis satisfies
the elements of the offense. Finally, prosecutorial discretion cannot legitimize a
rationale for strict liability exposed as illegitimate when applied to adults who
commit statutory rape of their juvenile rapists. Such adult victims culpably assume
neither the risk of being raped nor the risk that their rapist will turn out to be
underage. These unfortunate consequences of criminalizing being raped arise
regardless of whether prosecutors forego prosecuting adults for statutory rape of
their juvenile rapists.
Fourth, reliance on prosecutorial discretion is only as wise as the wisdom of the
discretion. Unwise exercise of discretion comes in two forms—unwise
prosecutions and unwise failures to prosecute. As an example of the latter, consider
the case of the infamous Spur Posse gang where seventeen felony counts involving
eight male defendants (fifteen to eighteen years old) and seven female victims (ten
to sixteen years old) were reduced by the Los Angeles district attorney down to a
264
single count. Feminists and legal scholars supporting vigorous enforcement of
statutory rape laws have criticized such prosecutorial discretion. Michelle Oberman
265
terms the underprosecution of the Spur Posse gang as “astonishing.” Linda
Hirshman and Jane Larson argue that statutory rape laws “should be enforced
consistently and even-handedly, respecting the law as written. . . . [Otherwise] the
266
legitimacy of a principled ban against adult sexual access to children is eroded.”
267
Dismayed that statutory rape laws are “seldom enforced,” Frances Olsen
nonetheless maintains the importance of the statutory rape laws as law: “statutory
268
rape laws affect ideology, and ideology affects behavior.” Consequently, if we
maintain respect for the importance of statutory rape laws as law and reject
prosecutorial discretion, then consistency requires rejecting prosecutorial discretion
as a solution to statutory rape’s overbreadth in criminalizing being the victim of
rape.
As examples of unwise prosecutions, consider the following two recent statutory
269
rape cases. The defendant, Patricia Starlings, fifty-two, was “mentally retarded,

264. See, e.g., Oberman, supra note 37, at 15–17, 22–23 (describing and criticizing the
Los Angeles district attorney’s decision to not prosecute sixteen of the initial seventeen
felony counts on the basis that the victims and perpetrators were roughly the same age and
there was insufficient proof of force).
265. Id. at 15–16.
266. LINDA R. HIRSHMAN & JANE E. LARSON, HARD BARGAINS: THE POLITICS OF SEX 275
(1998).
267. Olsen, supra note 33, at 406 n.90.
268. Id. (criticizing the insufficient enforcement of statutory rape laws).
269. Thanks to Kay Levine for pointing out these cases. For an example of an unwise
exercise of prosecutorial discretion to prosecute in a (non-statutory) rape case, see generally
548 INDIANA LAW JOURNAL [Vol. 87:505

270
diabetic, schizophrenic and easily suggestible.” Ms. Starlings was living in the
home of a family that included a fourteen-year-old boy.271 One evening, while the
boy’s fourteen-year-old male cousin was visiting and the parents were away, Ms.
Starlings allegedly had intercourse with the two boys.272 She was charged with
statutory rape.273 No plea bargain was reached as the judge, prosecutor, and Ms.
Starlings’ public defender struggled to express the terms of the possible plea in
274
“terms she could understand.” While the prosecutor argued that Ms. Starlings
“seduced the youths,” the public defender argued that “the boys decided to play
with her that night . . . . The evidence will show she did not do a thing. She was
sexually assaulted herself. . . . Her mistake was in feeling threatened and not going
275 276
to the police.” Ms. Starlings was ultimately acquitted of all charges.
In another case, the defendant, Angie Simon, twenty-seven, was legally blind
277
and borderline mentally retarded with an IQ of seventy. She had previously been
the victim of child abuse, spousal abuse, and death threats from her husband.278
Two boys, aged thirteen and fourteen, lied to obtain entry into her trailer home
outside San Francisco, “telling her their ball had rolled underneath her trailer. Once
inside, they began playing a game of Truth or Dare, encouraging her to perform sex
279
acts.” After the police arrested Ms. Simon, the mother of one of the boys said, “I
hope they throw the book at her . . . . I feel they need to make an example of
280
her.” The district attorney obliged, charging her with fifteen felony counts that
would result in a maximum seventy-year prison term if convicted.281 Ms. Simon’s
defense attorney spent months arguing to the prosecutors that Ms. “Simon is a
282
victim in the case, not a suspect, because of her mental disability.” A psychiatric
social worker who typically provides expert trial testimony for the prosecution
283
offered to testify for the defense that Ms. Simon was “a victim.” After the
publication of a newspaper story regarding the case, “the district attorney’s office
was flooded with angry faxes and phone calls from Bay Area residents upset” with
284
Ms. Simon’s prosecution. To avoid the threatened seventy-year prison term, Ms.

DON YAEGER WITH MIKE PRESSLER, IT’S NOT ABOUT THE TRUTH: THE UNTOLD STORY OF THE
DUKE LACROSSE CASE AND THE LIVES IT SHATTERED (2007) (chronicling the abuses of
prosecutorial discretion).
270. Law and Order—Despite Suit, Tax Bills in the Mail, ATL. J. & ATL. CONST., Sept.
13, 1997, at G1 [hereinafter Law and Order].
271. Id.
272. Celia Sibley, Woman Faces Statutory Rape Charges; Public Defender Says
Defendant Is Real Victim, ATL. J. & ATL. CONST., Sept. 5, 1997, at D3.
273. Id.
274. Id.
275. Id. (second alteration in original).
276. Law and Order, supra note 270.
277. Charlie Goodyear, Retarded Woman Spared Prison; 3 Years’ Probation for Sex with
2 Teenage Boys, S.F. CHRON., Sept. 30, 1998, at A16.
278. Id.
279. Id.
280. Id.
281. Id.
282. Id.
283. Id.
284. Id.
2012] THE PARADOX 549

Simon plead no contest to two counts of statutory rape and registered as a sex
offender.
These exercises of prosecutorial discretion scarcely justify reliance on it as a
solution to statutory rape’s overbreadth in criminalizing being the victim of rape.
As these cases show, prosecutorial discretion as a solution will not work because it
has not worked. Not only were Ms. Simon and Ms. Starlings less than paradigmatic
examples of sexual predators exploiting juveniles, but they were arguably victims
of rape perpetrated by the juveniles. These and other abuses of prosecutorial
discretion do not repay faith in prosecutorial discretion as a saving grace for
dramatically overbroad statutory rape laws.

CONCLUSION

Statutory rape has become the crime of being raped. When an adult is raped by a
juvenile, the offense of statutory rape imposes criminal liability on the adult for the
same intercourse by which the adult is a victim of rape. In this way, the offense of
statutory rape criminalizes being raped; it criminalizes being the victim of rape. It
criminalizes the failure to prevent or resist being raped by a juvenile. And neither
defenses specific to statutory rape nor defenses of general application satisfactorily
preclude liability. As a result, the law of rape and the law of statutory rape are in
conflict. While the offense of rape prohibits committing rape, the offense of
statutory rape prohibits being raped. Paradoxically, what the law of rape seeks to
protect us from—being raped—the law of statutory rape punishes us for. But it
should not. Criminalizing being raped both subjects adult rape victims to
undeserved statutory rape liability and subverts the principles and purposes of the
laws of rape and statutory rape. This Article proposes a possible solution building
on the concept of a juvenile’s conditional legal capacity to consent.