Massachusetts Supreme Court Sees Possible Gender Bias in Statutory Rape Case

In a major step forward in progress toward treating the opposite genders truly equally, the Massachusetts Supreme Judicial Court recently handed down a sharply divided ruling in a case involving underage sex and statutory rape.

The case involved consensual sex between a 14 year old high school boy and three underage girls, two of whom were 12 years old and the other 11. Various sex acts were alleged to have taken place between the boy and each of the girls, between August and October of 2007. The police investigation revealed that no force was involved in any of the encounters, and that the alleged sex acts between the boy and all three girls was voluntary and consensual on the part of all four youths. However, Plymouth County District Attorney Timothy J. Cruz chose to prosecute only the boy with statutory rape, not any of the girls. Under Massachusetts law, it is deemed a crime for anyone of either gender under the age of 16 to have sex.

Notwithstanding the wording of any statutes concerning gender, statutory rape laws have almost always been enforced against boys under the age of 16, not girls. Statutory rape laws are very old, and had their origin in the antiquated legal concept that a daughter was the property of her father.

After his lawyer tried unsuccessfully to have the girls also charged, the defense sought statistics from prosecutors to support the claim that the boy was selectively prosecuted because of his gender. The District Attorney’s office refused, the boy’s attorney appealed to the SJC for direct appellate review, and the state’s highest court agreed to hear the case. In his appeal, the boy argued that the District Attorney’s office that prosecuted him for statutory rape, and not the girls, did so selectively, and as a result discriminated against him illegally. The court ruled that such selective prosecution, based on gender discrimination, was indeed possible in this case, and ordered that the Plymouth County District Attorney’s office turn over statistics revealing how many cases of statutory rape it has prosecuted in cases of consensual underage sex, and how many of those cases involved prosecution of just the male participant(s), and not female participant(s).

This is serious business. This boy is charged with nine criminal charges, three of which are for statutory rape, and the remaining for other sex acts not involving sexual intercourse. If he is convicted of any of these charges, he may have to register as a sex offender with the Massachusetts Sex Offender Registry Board. In my professional opinion as a Massachusetts criminal defense attorney, this ruling is long overdue, and will give similar District Attorney’s offices in Massachusetts justifiable pause before charging only boys in similar cases, when it is clear that the alleged sex was consensual on the part of both participants. To charge and prosecute only boys in such cases is patently unjust, inequitable, and discriminatory. These ancient and outdated laws are based on the groundless notion that girls under the age of 16 are not capable sexual actors the way that boys are perceived to be. This is 2009. Laws involving statutory rape should either be applied equally to both genders, or taken off the books and replaced with what are known in lay terms as “Romeo and Juliet Laws”. Such laws, which exist in 38 other states, treat consensual sex among teenagers far less harshly than in Massachusetts. Massachusetts legislators should wake up to the realities that a great many teenagers under the age of 16 always have engaged in voluntary, consensual sex, and – like it or not – always will. To treat these events as major sex felonies, a conviction of which could ruin a young person’s life, is patently ridiculous, in my view.

Memo to the Massachusetts Legislature: Reality called. Wake up and update these outdated laws.