By Sherry F. Colb
FindLaw Columnist
Special to CNN.com

(FindLaw) --Recently, the Georgia Supreme Court heard arguments in Dixon v. State. The case involves the conviction of Marcus Dwayne Dixon for statutory rape and aggravated child molestation. (Dixon was acquitted of rape and several other charges.)

Statutory rape is sex between an adult and a minor, while aggravated child molestation also involves an injury. At the time of his offense, Dixon was an 18-year-old high school football player who had sex with a 15-year-old female classmate. The aggravated child molestation statute mandates a ten-year minimum sentence, and Dixon challenges the harshness of the resulting penalty.

The case has attracted claims of racism, because the victim was a white girl and the convict an outstanding African-American student with a football scholarship to Vanderbilt.

One provocative underlying (though unstated) question that has contributed to the notoriety of this case is whether the law can legitimately send teenagers to prison for having sex with other teenagers, in the absence of force. Because every state has a statutory rape law in some form, this case presents a challenge to a long and continuing tradition of criminal laws that confine men for what could be consensual sex with minors who are close to the age of majority.

Such liability is controversial in a number of ways, but it also has some benefits that are often overlooked by critics, thus leaving us with a difficult dilemma that admits of no easy answers.

Statutory rape laws have a checkered past. A primary purpose was to guard the virginity of young maidens against seduction by unscrupulous cads. To give up one's "virtue" to a man who was unwilling to pay with his hand in marriage was foolish and presumptively a product of youthful, poor judgment.

Such laws had more to do with preserving female virginity than with the force and violence that define rape. One sign of this is the fact that a man could (and in some states still can) defend himself against statutory rape charges by proving that his victim was already sexually experienced prior to their encounter (and thus not subject to being corrupted by the defendant).
Justifications for statutory rape laws

Despite their unsavory beginnings, however, some feminists have favored these laws as well. Progressive women supported such statutes mainly as measures to help combat the sexual abuse of young girls.

Though a statutory rape charge would not require proof of force or coercion, feminists observed, young girls were (and may continue to be) especially vulnerable to being raped by the adults in their lives. In one study, for example, seventy-four percent of women who had intercourse before age fourteen and sixty percent of those who had sex before age fifteen report having had a forced sexual experience.

In addition, prosecutors attempting to prove rape in court have historically faced significant burdens, such as corroboration requirements premised on the complaining witness's presumptive lack of credibility.

For many years, legal thinkers like Eighteenth Century British Jurist Sir Matthew Hale were convinced that rape "is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, though never so innocent." Thus, rape law did not provide a reliable or efficacious vehicle for addressing most sexual violence, and it continues to be of limited utility for acquaintance rapes, as I discussed in an earlier column.

For this reason too, feminists may have viewed statutory rape laws as a godsend. As long as there was sexual intercourse and an under-age victim, the jury could convict. And more importantly, that possibility itself might deter real sexual abuse.
Is statutory rape just rape without proof of one element?

Viewing statutory rape laws as salutary in this way does raise a serious problem, however. In In Re Winship, the U.S. Supreme Court required that prosecutors prove every element of a crime beyond a reasonable doubt before a conviction can be constitutionally valid. Removing the "force" element of rape and leaving only intercourse and age might seem to amount, from some perspectives, to a presumption that the force element of rape is established, without the prosecutor's having to prove it and without the defense even having the option of affirmatively disproving it.

Such a presumption allows for the possibility that a fully consensual sexual encounter will be prosecuted and punished as rape. Some might understandably believe that this unfairly subjects essentially innocent men to unduly harsh treatment, simply in the name of deterring other, unrelated men from engaging in very different and far more culpable sorts of conduct.
Responses to concerns about prosecuting consensual sex

There are two potential responses to this concern. First, at some level, we might have doubts about the competence of a minor to "consent," in a meaningful way, to sexual activity. Because of her youth, the minor might not fully appreciate the full physical and emotional implications of her decision (including the possibility of offspring for which she will likely have little means of support).

Of course, many adults might also fall into this category, and the decision to treat intercourse as distinctive in this way may simply represent a revival of the old view that maidens should be protected from the corruption of their virtue. Why, otherwise, should girls who are sexually attracted to men be considered the men's victims rather than participants in arguably unwise and socially costly but mutually gratifying activity?

Another response to the concern about innocent men is more in keeping with feminist concerns. It is that when sexual activity with a minor is truly consensual, the activity is unlikely, at least in modern times, to be prosecuted. In other words, to the extent that statutory rape is truly a consensual and therefore victimless crime in a particular case, it is highly unlikely to generate a criminal action.

In the Dixon case, for example, the 15-year-old victim claimed that the defendant "tracked her down in a classroom trailer that she was cleaning as part of her duties in an after-school job, asked if she was a virgin, grabbed her arms, unbuttoned her pants and raped her on a table." This description renders the statutory rape and aggravated child molestation prosecution something other than the state targeting consensual activity for unduly harsh punishment.

Though Dixon was acquitted on the rape charge, that fact does not rule out the possibility of sexual assault. It means only that the jury was not convinced beyond a reasonable doubt that Dixon forced the 15-year-old girl to have sex against her will.

The normative question, then, becomes this: Is the likelihood that consensual sex will be punished by imprisonment sufficient to override the benefits of statutory rape legislation in facilitating the fight against actual sexual abuse of young adults?
Is convicting in the absence of force unacceptable?

One reaction to this question is that even the theoretical possibility of convicting in a case of consensual sex is unacceptable and unconstitutional. Prosecutors and juries, on this reasoning, should not have the option of finding a person guilty in the absence of force, regardless of how unlikely they are to exercise that option. Consensual sex is not criminal, period.

The assumptions underlying this reaction, however, though understandable, are at odds with other areas of the criminal law. Consider drug laws. Possession of a large quantity of narcotics is regularly treated as a far more serious offense than possession of a smaller quantity. One reason is that the first is viewed as possession with the intent to distribute (that is, drug dealing), while the second is thought to be consistent with personal use. Since legislators and others view dealing as much more harmful than mere possession, the penalties are accordingly more severe.

Yet possession of a large quantity of drugs, though highly suggestive, is not necessarily accompanied by an intent to distribute. A person might, for example, possess large amounts of drugs to avoid having to risk apprehension or sources drying out, through repeated purchases.

Suppose the drug statute did require proof of intent to distribute. If so, then the judge would, on request, have to instruct the jury that the bare fact of quantity alone is enough for a conviction only if the jury draws the inference, beyond a reasonable doubt, that the defendant intended distribution. Without such a finding of intent, the jury would have to acquit.

With the statute providing instead that quantity is the sole element, however, intent becomes legally irrelevant. As a result, even the prosecutor and jury who know that the defendant is simply saving up for an anticipated heroin shortage rather than planning to deal drugs, can convict the defendant of the more serious felony without giving rise to any grounds for appeal.

By crafting a statute without an "intent to distribute" element, in other words, legislators target distribution without requiring its proof (or even allowing for its disproof). One might characterize this as an end-run around the constitutional requisite of proving every element of guilt beyond a reasonable doubt.

The same "end run" accusation can be leveled against statutory rape laws. Young girls may represent a substantial portion of rape victims, perhaps because they are vulnerable and have not yet become sufficiently suspicious of the people around them. In most cases, moreover, a truly consensual encounter with a minor will probably not be brought to a prosecutor's attention or trigger the prosecutorial will to punish.

As with drug possession laws, then, the omission of a requirement that would pose proof problems might generally serve the interests of justice, despite appearances to the contrary.
Consensual sex with minors is not a fundamental right

What permits legislatures the discretion to enact such laws, ultimately, is the fact that (like drug possession), consensual sex with minors is not a constitutionally protected activity. Even if it is victimless, sex with a minor may be criminalized and punished severely without resort to a force requirement. Indeed, it once was punished routinely in this way, because of misogynist concerns about preserving female purity.

In modern times, though, when consensual sex among teenagers is generally understood to be both common and profoundly different from the crime of rape, there might still be a role for statutory rape laws in protecting young girls from actual rapists, through deterrence and through the real possibility of retribution.
Racism raised in the Dixon case

A remaining concern is the worry about racism specifically, and discrimination more generally, that arises whenever officials are vested with a large amount of discretion. In Dixon's case, one witness testified that the victim said that the sexual intercourse in question was consensual but that she claimed it was rape to avoid the wrath of her violent, racist father. This testimony may have given rise to reasonable doubt in the jury on the rape charges.

In easing the burden of proof at trial by eliminating the requirement of proving force, then, the law does permit unscrupulous prosecutors and complainants to bring charges on the basis of what is truly victimless behavior.

One does wonder, though, why a girl would tell a violent and racist father about a sexual encounter with a black man in the first place, rather than simply keeping the information from him, if the encounter were actually consensual.
Are statutory rape laws worth their cost?

In short, the crime of statutory rape may have originated from repressive and misogynist conceptions of sexuality. Nonetheless, it has (and may always have had) redeeming characteristics, even from an enlightened perspective that takes into account the realities of prosecuting rape and of women's equality. It makes it easier, for example, to prosecute and thus to deter real rapists who count on jury skepticism about acquaintance rape allegations.

Still, reducing burdens of proof relies a great deal on trust – in victims and in prosecutors – that the omitted element will truly be present when cases come to trial. If and when that trust is misplaced, as may or may not have happened to Marcus Dwayne Dixon, a grave injustice can result.

Sherry F. Colb, a FindLaw columnist, is a professor at Rutgers Law School. Her other columns on criminal law, constitutional issues, and other topics may be found in the archive of her columns on this site.



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