Purposes of the Offense

Purposes of the Offense

The age element settles what the prosecutor must prove, but it does not say why the legislature drew the line where it did, and that missing reason has consequences. Courts read a statute's terms in light of what the statute is for. Two later questions in this chapter depend on that reading: whether an adult's mistake about age can excuse the conduct, and whether a statute that punishes only one participant can be defended. The purposes discussed here explain how a court interprets and tests the statute, and they add nothing to the prosecutor's proof. Force is not an element of statutory rape, and neither is any showing that a particular encounter risked pregnancy or exploited a particular partner.¹ Treating a purpose as an element is the error to avoid.

The vehicle for the debate over purpose is Michael M. v. Superior Court of Sonoma County. Michael M., then seventeen and one-half, had intercourse with Sharon, who was sixteen and one-half, and he was prosecuted under a California statute that made only males criminally liable for intercourse with a female under eighteen.² The partners were a year apart in age, so the statute reached a partner only a year older than the victim, and it reached him alone. The case came to the Supreme Court as a challenge under the Equal Protection Clause, a question this chapter does not take up in its own right.³ The opinions matter here for another reason. Their footnotes collect the statute's amendment history, the draftsmen's explanation of the original provision, earlier California decisions describing its aim, and arrest and pregnancy statistics. Together those materials show how a court goes about deciding what an offense is for.⁴

Two explanations of the statute compete in those materials. The first is protective: the offense shields persons too young to understand the implications of intercourse from exploitation and from their own uninformed decisions, and California courts described the statute in those terms for generations.⁵ The second is pregnancy prevention. It ties the offense to a physical consequence that falls on only one sex, which is why it is the explanation usually offered for a statute that punishes only males, and the footnotes question both whether the statute serves that aim and whether it deters anyone.⁶

The choice between the two can be tested against how far the statute reaches. A pregnancy-prevention purpose has trouble accounting for a provision that applies to a child who has not reached puberty, and California's first statute, enacted in 1850, reached only females under ten before the age line rose in stages to eighteen by 1913.⁷ A protective purpose accounts for the whole span, because a child's inability to grasp what intercourse involves does not depend on whether pregnancy is physically possible. That fit also matches the structure already seen in this chapter, where the offense dispenses with force and gives no weight to the young person's willingness. The next two sections take the rationales one at a time, beginning with protection and the evidence California's own courts gave for it.

Protecting the Young

The oldest explanation of statutory rape is protective: the offense shields persons who are too young to understand what intercourse involves from exploitation by others and from their own uninformed decisions.⁸ That account explains features of the offense that earlier sections took as given. The legislature has judged that persons below the line cannot weigh the personal and social consequences of sexual activity, so it replaced any inquiry into one young person's understanding with a categorical rule and made lack of consent a conclusive presumption.⁹ Force then drops out of the elements, because the offense reaches consensual activity by design.¹⁰ The alternative would make the prosecution prove the incapacity of the very person the statute protects, and every trial would become an examination of that person's sophistication, with the exploiter arguing that the young person knew exactly what was happening. A fixed line removes that argument.

The history of the age line shows how long the protected period has been understood to last. The rule reached American law from English statutes of the late thirteenth century that set the age at twelve, and an English statute of 1576 lowered it to ten.¹¹ California's first penal statute, enacted in 1850, carried over the age-ten rule, and the legislature then raised the age in steps: to fourteen in 1889, to sixteen in 1897, and to eighteen in 1913, where it remains.¹² Other states followed a similar upward path through the nineteenth century, and some settled on eighteen or even twenty-one.¹³ Each increase extends the protected period further into adolescence, which reflects a legislative judgment that vulnerability to exploitation continues long after early childhood ends. The same reason that justified a line at ten was therefore used to justify a line at eighteen, so the chosen age records where a legislature decided vulnerability ends while the underlying purpose stays the same.

Two bodies of evidence tie the age line to protection. The first is the drafting record. The only legislative history available for California's provision, the commissioners' note to the Penal Code of 1872, says the provision restates the settled rule that a girl under ten cannot give any consent that would reduce intercourse below the grade of rape, and the note never mentions preventing pregnancy.¹⁴ The second is the case law. In People v. Verdegreen (1895) the California Supreme Court described the statute's purpose as protecting young and unsophisticated girls from violation, and it added that the gradual approach and tampering that lead up to the act fall within what the legislature meant to prevent.¹⁵ Nearly seventy years later, People v. Hernandez (1964) described the underage female as presumed too innocent and naive to understand the implications of her act, and it treated the law as stepping in to prevent a decision that would harm both her and the community's social mores.¹⁶ On the account given in the footnotes to Michael M., it was only in that case that the California Supreme Court first identified pregnancy prevention as one of the statute's purposes, after about 130 years of describing the law in protective terms.¹⁷ That characterization is contested, and the next section takes up the pregnancy rationale on its own terms.

The under-ten coverage offers the cleanest test of which purpose a statute serves. A footnote in Michael M. reasoned that females generally have not reached puberty by ten, so a statute designed to prevent pregnancy would hardly be directed at intercourse with a child that young.¹⁸ Apply that reasoning to an adult who has intercourse with an eight-year-old. A pregnancy-prevention rationale cannot explain punishing the act, because a child that young ordinarily cannot become pregnant, while a protective rationale explains it completely, because an eight-year-old has no grasp of what intercourse involves and no capacity to decide about it. The Model Penal Code's rape provision for a female under ten reflects the same structure, since it keys liability to her age without requiring force or any age difference between the actor and the child.¹⁹ Because the under-ten coverage is the oldest portion of the offense, it supports reading protection as the core of the statute, even if other purposes were later added.

The protective rationale operates through a presumption, and the presumption is conclusive. Hernandez itself questioned the soundness of the presumption, observing that age alone does not guarantee understanding, since a sexually experienced fifteen-year-old may grasp the implications of intercourse better than a sheltered cousin who is past the age of consent.²⁰ Even so, the court said, where a girl's actual comprehension contradicts the law's presumption the male is still criminally responsible, though he may himself be young and may have been responding to advances made to him.²¹ The reason is that an exception for the young person who in fact understood would revive the case-by-case inquiry the legislature chose to avoid, and it would invite defendants to prove how worldly the complainant was. The statute therefore leaves actual understanding out of the case. Students lose this issue when they treat proof of actual naivete as something the prosecution must show.

That second result shows the protective rationale at its edge. Legislatures that write an age gap into the statute are following the protective logic to its limit, because a gap removes sexual experimentation between contemporaries from the penal law while keeping the offense aimed at older partners.²²

What protection protects has changed over time, which is one reason to present it as the long-standing rationale and not as a settled or complete account. Early statutes aimed to preserve young females' virginity so that they would remain eligible for marriage, and around the turn of the twentieth century reformers and families also used the laws to control the sexuality of working-class girls in the cities.²³ Support came from several directions, including Victorian feminists who joined a large public demonstration in London in 1885 for a bill raising the age for girls from thirteen to sixteen.²⁴ Today two connected goals are usually given: preventing young people from consenting to sex without understanding it, which exposes them to physical and emotional harm, and deterring older men from preying on young females.²⁵ The second goal fits the older partner's liability most directly, since the statute punishes the person positioned to exploit and never the protected young person. The pregnancy-prevention account, which competes with these goals and is the usual defense of statutes that punish only males, is the subject of the next section.

Pregnancy Prevention and Gender

The pregnancy-prevention rationale starts from a physical fact that the protective account never mentions: only females can become pregnant. A legislature that wants to discourage teenage intercourse because of that consequence can reason that a young woman already faces a natural deterrent while a young man does not, so criminal liability for the male participant supplies a deterrent where one is missing. That reasoning is the standard defense of a statute that punishes only males. In Michael M. v. Superior Court the Supreme Court upheld California's male-only statute against an equal protection challenge, reasoning that because only females bear the burden of potential pregnancy, it was equitable for only males to bear the burden of potential criminal liability.²⁷ The constitutional test is not the subject of this chapter. What matters here is how the choice of purpose decides whether a male-only design looks justified.

The case shows what a male-only design does to coverage. Michael M., seventeen and one-half, was prosecuted for intercourse with Sharon, sixteen and one-half, and his own youth did not take him outside the statute, because the California provision asked only whether the actor was male and the other participant a female under eighteen.²⁸

Because sex alone separates the covered pairing from the uncovered one, the defense of the statute has to come from its purpose. Pregnancy prevention gives the difference a reason, since the burden of pregnancy falls on only one of the two participants. The footnotes to the case test that reason on two fronts, deterrence and enforcement, and each test shows how much of the male-only design depends on facts that may not hold.

The first test is deterrence, because a statute justified by pregnancy prevention has to be capable of preventing something. Justice Brennan's footnote draws on figures from California's own records: an average of only 61 juvenile males and 352 adult males were arrested for statutory rape each year from 1975 through 1978, in a state with roughly one million girls between thirteen and seventeen, while the state health department estimated almost 50,000 pregnancies among girls in that age group in 1976.²⁹ From those numbers the footnote speculates that a male contemplating intercourse with a minor female would find the chance of arrest low, and it questions whether the statute as enforced has a substantial deterrent effect.³⁰ The footnote concedes that the record does not show how often intercourse involving those girls occurred, so the argument is an inference from enforcement figures and gives no direct measure of deterrence. A separate opinion adds that if a million teenagers became pregnant in 1976, there must be countless violations of the statute, which means the arrests capture only a small share of the conduct.³¹

The second test is enforcement. A defender of the male-only design can argue that a gender-neutral statute would weaken enforcement, on the theory that a young woman who faced prosecution herself would hesitate to come forward. The footnote answers by returning to a feature of the offense already seen in this chapter: statutory rape laws apply to consensual activity, and force is not an element.³² A woman who consents to intercourse is unlikely to report her partner to the police whether or not she is herself subject to criminal sanctions, so a gender-neutral statute would not lose complaints that a male-only statute would have received.³³ A threat of prosecution cannot suppress a report that was never going to be made, and that removes the enforcement reason for limiting liability to one sex.

Taken together, the two tests show that the rationale chosen decides whether a male-only statute looks justified. If the purpose is pregnancy prevention, one-sided liability has a logic, provided the statute actually deters and provided gender-neutral drafting would cost something in enforcement, and the footnotes attack both provisos. If the purpose is protection, the one-sidedness is harder to explain, because a young male can also be too young to understand what intercourse involves. The usual historical account of the gender-specific design is that the early laws reflected a view of women and girls as needing special protection.³⁴ How the statute is characterized matters as well. The Court viewed a statute enforceable only against males as one favoring females, yet the same statute arguably discriminates against young women by treating them as legally incapable of consenting at an age when their brothers are not.³⁵ Gender-specific text also does not by itself prove a pregnancy purpose. The Model Penal Code's rape provision for a female under ten is written for a male actor and a female victim, yet it covers children who ordinarily cannot become pregnant.³⁶

Legislatures have largely answered the criticism by rewriting the statutes, and only five states still have gender-specific provisions.³⁷ Gender-neutral wording creates its own difficulty when both participants are minors. About a third of the states, sixteen by one recent count, impose liability even when the defendant is just as young as the victim, and because the statutes are worded neutrally, prosecutors decide which of the two young people to treat as the victim of the other.³⁸ Gender stereotypes shape that choice, so the female participant is far more often cast as the victim. Students lose points when they assume that gender-neutral wording produces gender-neutral enforcement. An age-gap requirement, which the earlier discussion of age tiers covered, removes the pairing of near-peers from the offense, and with it the charging choice.³⁹