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.

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