Statutory rape, also called unlawful sexual intercourse, criminalizes sexual intercourse with a victim who is under the age of legal consent. The age of legal consent varies from state to state and is most commonly sixteen, seventeen, or eighteen. 1
The criminal act element required for statutory rape in many jurisdictions is sexual intercourse, although other types of sexual conduct with a victim below the age of consentare also criminal. 2 The harm element of statutory rape also varies, although many jurisdictions mirror the harm element required for rape. 3 The attendant circumstance element required for statutory rape is an underage victim. 4 There is no requirement for force by the defendant. Nor is there an attendant circumstance element of lack of consent because the victim is incapable of legally consenting.
In the majority of states, the criminal intent element of statutory rape is strict liability. 5 However, a minority of states require reckless or negligent criminal intent, allowing for the defense of mistake of fact as to the victim’s age. If the jurisdiction recognizes mistake of age as a defense, the mistake must be made reasonably, and the defendant must take reasonable measures to verify the victim’s age. 6 The mistake of age defense can b e proven by evidence of a falsified identification, witness testimony that the victim lied about his or her age to the defendant, or even the appearance of the victim.
It is much more common to prosecute males for statutory rape than females. The historical reason for this selective prosecution is the policy of preventing teenage pregnancy. 7 This ensures that women, especially women who are older than their sexual partner, are equally subject to prosecution is the policy of preventing teenage pregnancy. However, modern statutory rape statutes are gender-neutral. 8
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