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Statutory Rape, Romeo and Juliet Laws in Massachusetts

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Attorney Jason Chan

267 North Beacon Street, Suite 3
Boston MA 01235

Phone: 781-343-1DUI (781-343-1384)
Fax: 617-226-7986

The Age of Consent and Statutory Rape Laws in the US.

In the US the age of consent to sexual intercourse varies by state from the age of 16 to 18.  Some states have different ages of consent for girls versus boys.  In those states girls can consent a year or two younger than guys.  See Age of Consent By State 

Regardless, the vast majority of states have exceptions to their limits on consent.  While many states have statutory rape laws, they have exceptions that apply very broadly to common teenage sexual behavior.  Specifically, most states have some sort of Romeo and Juliet law, where if the underage persons involved in sexual behavior are within a few years of each other’s age, statutory rape is not prosecuted. 

There are age limits in almost all states, generally below 11 to 13, below which children cannot consent.  Even within the thirteen to seventeen year age group, sexually active teens may not be prosecuted but they are often referred to family court if the activity is seen as problematic. Massachusetts, however, is one of the few states that does not prevent young people engaging in sexual behavior consensually from being prosecuted for statutory rape. 

Statutory Rape in Massachusetts. 

Massachusetts has one of the strongest statutory rape laws and policies of enforcement in the country.  It is one of only three states where statutory rape is defined without much exception as having sexual intercourse with someone under the age of 16.   Sexual intercourse is broadly defined under the laws of Massachusetts to include nearly all types of penetration into various orifices of the body.  Mass. General Laws. c.265, s. 23. The jail term may be as long as for life, or for any lesser length of time in jail. 

Massachusetts Statutory Rape is a Strict Liability Crime

In Massachusetts it is illegal to have sexual intercourse with a child who has not yet reached his or her sixteenth birthday See Mass. General Laws, c. 265, s. 23.  Intercourse is not restricted to vaginal intercourse, but addresses penetration of the body in various forms.  Lack of knowledge of the age of the victim is no defense and consent is not a defense either.  See Commonwealth v. Miller, 385 Mass. 521 (1982) and Commonwealth v. Elder389 Mass.783 (1983) respectively.   

In addition, there is a separate section of the statutory rape under Massachusetts law that addresses sexual intercourse with children where the age difference between the parties is significant. The law refers to Rape and abuse of child aggravated by age difference between defendant and victim or by when committed by mandated reporters. 

Details of Statutory Rape in Massachusetts.

Under the law three groups of offenders suffer greater penalties and potentially higher jail times than under the statutory rape law (See Mass. General Laws, c.265, s. 23(A)):

Two different groups of significant age group difference offenders:

  1. Child is less than twelve years old and there is a five year age difference.
  2. Child is less than sixteen years old and twelve or greater years, and the age difference is greater than ten years. If the child is under twelve and the age difference is more than five years between perpetrator and child, or the child is under sixteen and older than twelve, but the age difference is greater than ten years.
  3. The offender is already a mandated reporter under the law.  Mandated reporters are the equivalent of sex offenders who must be registered under the law for a variety of offenses.

There have been policy analyses performed by students and professors at various universities describing a need for Romeo and Juliet Laws in Massachusetts, but currently the exceptions do not exist in Massachusetts.  See one discussion: Massachusetts needs a statutory rape exception.

The Impact of Massachusetts Law on Youth.

In a 2007 case that may be illustrative of the quandary, a 14 year old boy was prosecuted on multiple counts of statutory rape in charges that related to having sexual relations with three girls, two who were twelve and one who was eleven. See Commonwealth v. Bernardo B. 453 Mass. 158.  The alleged sexual acts were investigated by the police.  No evidence of physical force or notable coercion was found to be present in the case.  As the boy was prosecuted and not the girls, there are some who argue the case evidences sexual discrimination in the application of the statute since all were under the age of sixteen.  Discussion of statutory rape case from 2007

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