The New York Daily News recently ran a story about the defense being offered in a case of two boys accused of raping a 14 year-old girl in her school bathroom. The defendants, who were 17 and 18 at the time of the alleged rape, have argued pretty convincingly that the sex was consensual.
Not only do they claim the sex was fully agreed to by the girl and, in fact, planned in advance, but they were also able to produce “explicitly compromising images of herself” the girl had sent to at least one of the defendants.
Since the advent of smartphones, the use of explicitly sexual images as evidence in criminal cases has been extremely controversial. However, it has been more common for such images to be used by prosecutors to prove sexual activity between minors in order to prosecute them for statutory rape. In this case, the sexts were used by the defense.
Does consent matter in a case involving sex with a 14 year-old?
Unfortunately for this defendant, probably not. The case took place in Maryland, which has slightly different statutory rape laws than we do in New York. However, in both states even consensual sex with a 14 year-old is illegal. That is due to a concept called the age of consent, which means the age at which a person is legally considered adult enough to make the important decision of whether to have sex. People below the age of consent cannot legally consent to sex. They are considered legally unable to do so, so having sex with them is therefore rape even if they claim to have consented.
Here in New York, the age of consent is 17. That means that, in the state of New York, two 16 year-olds can’t legally have sex and, if they do, they may be subject to prosecution for statutory rape. The only legal exception is if they are married to each other.
In Maryland, where the alleged rape of the 14 year-old took place, the age of consent is 16. Neither Maryland nor New York has an exception for people who are close in age, as some states do. A conviction on a first offense of statutory rape in Maryland can result in a sentence of up to life in prison without parole.
So, consent doesn’t make any difference at all?
Well, not in terms of whether the two young men are legally guilty of statutory rape. Where it could very well make a difference is during sentencing. If a judge or jury can be persuaded the alleged sexual encounter wasn’t as bad as a standard statutory rape, the sentence could be lighter.