Commentary Sexual Health

Should a 13-Year-Old and Her 12-Year-Old Partner Really Be Considered Sex Offenders?

Martha Kempner

The Utah Supreme Court heard arguments last Tuesday in an appeals case involving a 13-year-old girl who had "consensual sex" with her then-12-year-old boyfriend and ended up an accused sex offender.

Last Tuesday, the Utah Supreme Court heard arguments in a case that should make us once again reconsider our age-of-consent laws. In 2003, an unnamed 13-year-old girl had “consensual sex” with her then-12-year-old boyfriend. The state learned of this relationship when she became pregnant, filing delinquency petitions against both teens for committing sexual abuse of a child. The young woman, who is now 23, wants the court to overturn the finding of delinquency. She and her attorney are arguing that she can’t be both the victim and the perpetrator of the exact same crime. Moreover, they say that she is not being treated fairly under the law because older teens are not prosecuted for engaging in sexual activity with someone of a similar age. The state, however, is not backing down, saying that it has an interest in protecting children, even if it is from other children.

As Rewire has reported in the past, age-of-consent laws in this country vary by state and can be quite complicated. The specifics of each state’s law can result in some cases in which seemingly consensual relationships between teenagers (say a 15-year-old sophomore and her 18-year-old senior boyfriend) become criminal cases. Though the government has an interest in protecting teenagers from sexual exploitation, such cases must make us question whether criminalizing teen sex is the way to go, especially because the laws are unevenly enforced, often at the whim of an angry parent or overzealous law enforcement official.

The case in Utah is particularly disturbing because the teens in question were so young; while there may be disagreement among adults about whether 15- or 16-year-olds are mature enough for sexual relationships, most everyone agrees that 12- and 13-year-olds are not. Still, should too young automatically mean criminal? I would argue that very young teens who have sex do need adult intervention, but I don’t think those adults should be police officers, lawyers, and judges.

Age-of-Consent Laws

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The age of consent is simply the age at which an individual can legally consent to sexual intercourse under any circumstance. There are only 12 states, however, that have a simple age-of-consent law in which the state names an age (such as 16) and says that teens that age or older can consent to sex, but sex with anyone under that age is illegal. Most states do try to add a little nuance into their laws.

States make a number of distinctions about the age of both the “victim” and the “perpetrator.” Some states note the minimum age of a victim, which is the age below which an individual cannot legally consent to sexual intercourse under any circumstance. In a number of states, if the victim is above the minimum age but below the age of consent, the issue becomes the age differential, or the maximum allowable age difference between the victim and the perpetrator. Finally, many states name a minimum age of the defendant as the age below which individuals cannot be prosecuted for engaging in sexual activities with minors.

Utah’s law is actually quite specific for teens ages 14 and older. For example, 14- and 15-year-olds cannot consent to any kind of penetration (oral, anal, or vaginal intercourse), but can consent to sexual touching as long as their partner is not more than seven years older. This would mean that a 16-year-old who has oral sex with a 14-year-old is committing a crime, as is a 22-year-old who has any sexual contact with a 15-year-old. But a 20-year-old can fool around with his or her 14-year-old partner without fear of prosecution, as long as there is no penetration.

The rules change as teens get older: 16- and 17-year-olds can consent to all kinds of sex, including penetration, but only if their partner is not more than ten years their senior. So the young teens in the case at hand would have been well within the law to have intercourse had each been four years older, because the age gap between them was so small. A much bigger age gap would have even been acceptable—in fact, had the youngest person in the couple been 16 years old, his or her partner could have been 25 years old without causing any legal incident (though I certainly would question the power dynamics of a relationship between a 16-year-old and a 25-year-old).

The case at issue may represent the perfect storm that no legislator in Utah ever anticipated. In Utah, the minimum age of the victim is 14, which means that there are no circumstances in which anyone under 14 can legally consent to sex. There is, however, no minimum age of the defendant. So whereas in other states a 13-year-old is considered too young to prosecute, that is not true in Utah—which is how we ended up in a situation in which the young woman was considered both the victim and perpetrator of the exact same crime.

As they were hearing oral arguments in this case last week, the justices of the Utah Supreme Court acknowledged that they were having trouble with this predicament. According to the Salt Lake Tribune, Chief Justice Christine Durnham wondered if the state legislature had intended this “peculiar consequence” in which a child would have simultaneous status of a protected person and an alleged perpetrator under the law. Associate Chief Justice Michael Wilkins noted, “The only thing that comes close to this is dueling,” suggesting that when two people agree to take 20 paces and then shoot, they could each be considered both victim and offender.

Stop Treating Teen Sex as a Crime

Maybe the reason that the justices couldn’t think of an analogous situation (or at least one that has occurred more recently than 1842) is because they were tied down to thinking of teen sex as a crime. In some ways, it’s reassuring that Utah lawmakers tried to make their law more subtle than “You’re too young, don’t do it.” But in the end what they came up with was a series of algebra problems—“if you’re X and your partner is less than X+7, you can touch here, here, and here, but not here.” Teen sex cannot be reduced to an equation, and should not be reduced to a crime.

A 12-year-old and a 13-year-old who have sex do not need legal intervention, but that’s not to say they don’t need help from adults. First, we have to remember that sex between these two ended in pregnancy, so it’s clear that at the very least these two needed an adult in their life—whether a parent, teacher, counselor, faith leader, or health-care provider—who could provide information about the importance of using contraception and/or access to methods themselves. They also needed this adult to help them think critically about why they chose to have sex (did they want to feel closer, or were they trying to gain popularity, indulge their curiosity, or keep the other from breaking up with them) and whether they should continue to do so. Some reasons are better than others, but even if the reasons are good, that doesn’t mean they should lead to intercourse. There are certainly other, better ways to express love or feel closer—especially at 13. These teens needed an adult who could help them sort this out. In addition, research has shown that teens who have sex at younger ages are more likely to have experienced abuse and to engage in other risky behaviors such as alcohol and drug use. Adult intervention should also have looked into what else was going on in their lives at the time.

Laws that criminalize sex among young teenagers could actually discourage these important conversations, because the young person doesn’t want to admit to doing something illegal or the adult feels compelled to point out only that having sex is against the law rather than risk going into the finer details of sexual decision-making.

The instinct to protect young people from exploitation is a good one, and obviously we need to protect teens from adults, especially those in positions of trust and power, who take advantage of them. But our rush to legislate the intricacies of sexual relationships between teens shows that we still view teen sex as inherently problematic, as something that needs to be fixed or prevented. As a result of this underlying belief, the laws we have ended up with often seem to hurt those who they are meant to protect.

While the Utah high court deliberates the specifics of this case, maybe the rest of us should be thinking about better ways to understand and react to sex between teenagers.

Roundups Sexual Health

This Week in Sex: The Sexually Transmitted Infections Edition

Martha Kempner

A new Zika case suggests the virus can be transmitted from an infected woman to a male partner. And, in other news, HPV-related cancers are on the rise, and an experimental chlamydia vaccine shows signs of promise.

This Week in Sex is a weekly summary of news and research related to sexual behavior, sexuality education, contraception, STIs, and more.

Zika May Have Been Sexually Transmitted From a Woman to Her Male Partner

A new case suggests that males may be infected with the Zika virus through unprotected sex with female partners. Researchers have known for a while that men can infect their partners through penetrative sexual intercourse, but this is the first suspected case of sexual transmission from a woman.

The case involves a New York City woman who is in her early 20s and traveled to a country with high rates of the mosquito-borne virus (her name and the specific country where she traveled have not been released). The woman, who experienced stomach cramps and a headache while waiting for her flight back to New York, reported one act of sexual intercourse without a condom the day she returned from her trip. The following day, her symptoms became worse and included fever, fatigue, a rash, and tingling in her hands and feet. Two days later, she visited her primary-care provider and tests confirmed she had the Zika virus.

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A few days after that (seven days after intercourse), her male partner, also in his 20s, began feeling similar symptoms. He had a rash, a fever, and also conjunctivitis (pink eye). He, too, was diagnosed with Zika. After meeting with him, public health officials in the New York City confirmed that he had not traveled out of the country nor had he been recently bit by a mosquito. This leaves sexual transmission from his partner as the most likely cause of his infection, though further tests are being done.

The Centers for Disease Control and Prevention (CDC)’s recommendations for preventing Zika have been based on the assumption that virus was spread from a male to a receptive partner. Therefore the recommendations had been that pregnant women whose male partners had traveled or lived in a place where Zika virus is spreading use condoms or abstain from sex during the pregnancy. For those couples for whom pregnancy is not an issue, the CDC recommended that men who had traveled to countries with Zika outbreaks and had symptoms of the virus, use condoms or abstain from sex for six months after their trip. It also suggested that men who traveled but don’t have symptoms use condoms for at least eight weeks.

Based on this case—the first to suggest female-to-male transmission—the CDC may extend these recommendations to couples in which a female traveled to a country with an outbreak.

More Signs of Gonorrhea’s Growing Antibiotic Resistance

Last week, the CDC released new data on gonorrhea and warned once again that the bacteria that causes this common sexually transmitted infection (STI) is becoming resistant to the antibiotics used to treat it.

There are about 350,000 cases of gonorrhea reported each year, but it is estimated that 800,000 cases really occur with many going undiagnosed and untreated. Once easily treatable with antibiotics, the bacteria Neisseria gonorrhoeae has steadily gained resistance to whole classes of antibiotics over the decades. By the 1980s, penicillin no longer worked to treat it, and in 2007 the CDC stopped recommending the use of fluoroquinolones. Now, cephalosporins are the only class of drugs that work. The recommended treatment involves a combination of ceftriaxone (an injectable cephalosporin) and azithromycin (an oral antibiotic).

Unfortunately, the data released last week—which comes from analysis of more than 5,000 samples of gonorrhea (called isolates) collected from STI clinics across the country—shows that the bacteria is developing resistance to these drugs as well. In fact, the percentage of gonorrhea isolates with decreased susceptibility to azithromycin increased more than 300 percent between 2013 and 2014 (from 0.6 percent to 2.5 percent).

Though no cases of treatment failure has been reported in the United States, this is a troubling sign of what may be coming. Dr. Gail Bolan, director of CDC’s Division of STD Prevention, said in a press release: “It is unclear how long the combination therapy of azithromycin and ceftriaxone will be effective if the increases in resistance persists. We need to push forward on multiple fronts to ensure we can continue offering successful treatment to those who need it.”

HPV-Related Cancers Up Despite Vaccine 

The CDC also released new data this month showing an increase in HPV-associated cancers between 2008 and 2012 compared with the previous five-year period. HPV or human papillomavirus is an extremely common sexually transmitted infection. In fact, HPV is so common that the CDC believes most sexually active adults will get it at some point in their lives. Many cases of HPV clear spontaneously with no medical intervention, but certain types of the virus cause cancer of the cervix, vulva, penis, anus, mouth, and neck.

The CDC’s new data suggests that an average of 38,793 HPV-associated cancers were diagnosed each year between 2008 and 2012. This is a 17 percent increase from about 33,000 each year between 2004 and 2008. This is a particularly unfortunate trend given that the newest available vaccine—Gardasil 9—can prevent the types of HPV most often linked to cancer. In fact, researchers estimated that the majority of cancers found in the recent data (about 28,000 each year) were caused by types of the virus that could be prevented by the vaccine.

Unfortunately, as Rewire has reported, the vaccine is often mired in controversy and far fewer young people have received it than get most other recommended vaccines. In 2014, only 40 percent of girls and 22 percent of boys ages 13 to 17 had received all three recommended doses of the vaccine. In comparison, nearly 80 percent of young people in this age group had received the vaccine that protects against meningitis.

In response to the newest data, Dr. Electra Paskett, co-director of the Cancer Control Research Program at the Ohio State University Comprehensive Cancer Center, told HealthDay:

In order to increase HPV vaccination rates, we must change the perception of the HPV vaccine from something that prevents a sexually transmitted disease to a vaccine that prevents cancer. Every parent should ask the question: If there was a vaccine I could give my child that would prevent them from developing six different cancers, would I give it to them? The answer would be a resounding yes—and we would have a dramatic decrease in HPV-related cancers across the globe.

Making Inroads Toward a Chlamydia Vaccine

An article published in the journal Vaccine shows that researchers have made progress with a new vaccine to prevent chlamydia. According to lead researcher David Bulir of the M. G. DeGroote Institute for Infectious Disease Research at Canada’s McMaster University, efforts to create a vaccine have been underway for decades, but this is the first formulation to show success.

In 2014, there were 1.4 million reported cases of chlamydia in the United States. While this bacterial infection can be easily treated with antibiotics, it often goes undiagnosed because many people show no symptoms. Untreated chlamydia can lead to pelvic inflammatory disease, which can leave scar tissue in the fallopian tubes or uterus and ultimately result in infertility.

The experimental vaccine was created by Canadian researchers who used pieces of the bacteria that causes chlamydia to form an antigen they called BD584. The hope was that the antigen could prompt the body’s immune system to fight the chlamydia bacteria if exposed to it.

Researchers gave BD584 to mice using a nasal spray, and then exposed them to chlamydia. The results were very promising. The mice who received the spray cleared the infection faster than the mice who did not. Moreover, the mice given the nasal spray were less likely to show symptoms of infection, such as bacterial shedding from the vagina or fluid blockages of the fallopian tubes.

There are many steps to go before this vaccine could become available. The researchers need to test it on other strains of the bacteria and in other animals before testing it in humans. And, of course, experience with the HPV vaccine shows that there’s work to be done to make sure people get vaccines that prevent STIs even after they’re invented. Nonetheless, a vaccine to prevent chlamydia would be a great victory in our ongoing fight against STIs and their health consequences, and we here at This Week in Sex are happy to end on a bit of a positive note.

Commentary Sexual Health

Fewer Teens Are Having Sex, But Don’t Pop the Champagne Yet

Martha Kempner

The number of teens having sex may be less important than the number having protected sex. And according to recent data from the Centers for Disease Control and Prevention, condom use is dropping among young people.

Every two years, the Centers for Disease Control and Prevention’s Division of Adolescent and School Health (CDC-DASH) surveys high school students to gauge how often they engage in perceived risky behaviors. The national Youth Risk Behavior Surveillance (YRBS) is wide ranging: It asks about violence, guns, alcohol, drugs, seat belts, bicycle safety, and nutrition. It also asks questions about “sexual intercourse” (which it doesn’t define as a specific act) and sexual behaviors.

Started in 1991, this long-running study can provide both a picture of what high school students are doing right now and a historical perspective of how things have changed. But for more than a decade, the story it has told about sexual risk has been the virtually the same. Risk behaviors continually declined between 1991 and 2001, with fewer high school students having sex and more of them using condoms and contraception. But after the first 10 years, there has been little change in youth sexual risk behaviors. And, with each new release of almost unchanging data, I’ve reminded us that no news isn’t necessarily good news.

This year, there is news and it looks good—at least on the surface. The survey showed some significant changes between 2013 and 2015; fewer kids have ever had sex, are currently sexually active, or became sexually active at a young age. More teens are relying on IUDs and implants, which are virtually error-proof in preventing pregnancy.

In 2015, 41 percent of high school students reported ever having had sexual intercourse compared to 47 percent in 2013. The researchers say this is a statistically significant decrease, which adds to the decreases seen since 1991, when 54 percent of teens reported ever having had sexual intercourse.

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Another change is in the percentage of students who had sex for the first time before age 13. In 2015, 4 percent of high school students reported this compared to almost 6 percent in 2013. This is down from a full 10 percent in 1991. As for number of overall partners, that is down as well, with only 12 percent of students reporting four or more partners during their lifetime compared to 15 percent in 2013 and 19 percent in 1991. Finally, the percentage of students who are currently sexually active also decreased significantly between 2013 (34 percent) and 2015 (30 percent).

These are all positive developments. Delaying sex can often help prevent (at least temporarily) the risk of pregnancy or STIs. Having fewer partners, especially fewer concurrent partners, is frequently important for reducing STI risk. And those teens who are not currently having sex are not currently at risk for those things.

While I want to congratulate all teens who took fewer risks this year, I’m not ready to celebrate those statistics alone—because the number of teens having sex is less important to me than the percentage of teens having sex that is protected from both pregnancy and sexually transmitted infections. And that number is lower than it once was.

Among sexually active teens, there were no significant positive changes in measures of safer sex other than an increase in the number of sexually active high school students using the IUD or implant (up to 4 percent from 2 percent in 2013).

Moreover, some results indicate that today’s teens are using less protection than those who were teens a decade ago. The most telling finding might be the percentage of teens who used no method of contraception the last time they had sex. This decreased between 1991 and 2007 (from 17 percent to 12 percent), inched up to 14 percent in 2013, and stayed the same in 2015 (14 percent). There was also little to no change in the percentage of high school students who say that either they or their partner used birth control pills between 2013 (19 percent) and 2015 (18 percent) or those who say they used the contraceptive shot, patch, or ring (5 percent in 2013 and 2015).

For me, however, the most distressing finding is the backward progress we continue to see in condom use. The prevalence of high school students who used a condom at last sex went up from 45 percent in 1991 to 63 percent in 2003. But then it started to drop. In 2015, only 57 percent of sexually active high school students used condoms the last time they had sex, less than in 2013, when 59 percent said they used condoms.

It’s not surprising that teens use condoms less frequently than they did a decade ago. In the 1990s, the HIV epidemic was still front and center, and condoms were heavily promoted as a way to avoid infection. As this threat waned—thanks to treatment advances that now also serve as prevention—discussions of the importance of condoms diminished as well. The rise of abstinence-only-until-marriage programs may have also affected condom use, because these programs often include misinformation suggesting condoms are unreliable at best.

Unfortunately, some of the negative messages about condoms inadvertently came from public health experts themselves, whether they were promoting emergency contraception with ads that said “oops, the condom broke”; encouraging the development of new condoms with articles suggesting that current condoms are no fun; or focusing on teen pregnancy and the use of highly effective contraceptive methods such as long-acting reversible contraceptives (LARC). The end result is that condoms have been undersold to today’s teenagers.

We have to turn these condom trends around, because despite the decreases in sexual activity, young people continue to contract STIs at an alarming rate. In 2014, for example, there were nearly 950,000 reported cases of chlamydia among young people ages 15 to 24. In fact, young people in this age group represented 66 percent of all reported chlamydia cases. Similarly, in 2014, young women ages 15 to 19 had the second-highest rate of gonorrhea infection of any age group (400 cases per 100,000 women in the age group), exceeded only by those 20 to 24 (489 cases per 100,000 women).

While we can be pleased that fewer young people are having sex right now, we can’t fool ourselves into believing that this is enough or that our prevention messages are truly working. We should certainly praise teens for taking fewer risks and use this survey as a reminder that teens can and do make good decisions. But while we’re shaking a young person’s hand, we should be slipping a condom into it. Because someday soon (before high school ends, for more than half of them), that teenager will have sex—and when they do, they need to protect themselves from both pregnancy and STIs.