A version of this essay will appear under a different title as a chapter of my forthcoming book, Rape: A Philosophical Investigation, to be published by Dartmouth Publishing Company in its Applied Legal Philosophy series. I thank the publisher, its managing director John L. Irwin, and the series editor Tom D. Campbell for permission to publish the essay here. I am indebted to an anonymous reviewer for the journal for helpful critical comments on an earlier draft of this essay. I would like to thank David Conner for assistance, but unfortunately he didn’t provide any. What you see is my doing. This essay is dedicated to my brother, Glenn Eric Jackson, who set a good example for me intellectually and in every other way (okay, almost every other way) as we grew up in rural Michigan. We were always about the same size despite the two years' difference in age, but Glenn has been, is, and will forever be my big brother.

1. State v. Vicars, 186 Neb. 311,183 N.W2d 241 at 243 (1971) (affirming a conviction of statutory rape, defined by the court as “depriving a female within the age limits of her virginal chastity”).

2. Feinberg, Joel, The Moral Limits of the Criminal Law, vol. 3: Harm to Self (New York: Oxford University Press, 1986) at 331 Google Scholar (italics omitted).

3. Olsen, Frances, “Statutory Rape: A Feminist Critique of Rights Analysis” (1984) 63 Tex. L. Rev. 387 Google Scholar at 424 (citations omitted). This essay is reprinted, with deletions of some text and notes, as chapter 14 of Bartlett, Katherine T. & Kennedy, Rosanne, eds, Feminist Legal Theory: Readings in Law and Gender (Boulder, CO: Westview Press, 1991) at 305–17.Google ScholarSubsequent citations are to the original article.

4. Hereafter I use the words “sex” and “intercourse” to refer to sexual intercourse. Criminal statutes usually define the term in such a way as to eliminate ambiguity and reduce vagueness.

5. See Kole, Susan M., “Statute Protecting Minors in a Specified Age Range from Rape or Other Sexual Activity as Applicable to Defendant Minor Within Protected Age Group” (1994) 18 American Law Reports 5th 856 at 864 (Rochester, NY: Lawyers Cooperative Publishing).Google ScholarSince my aim in this essay is to provide a philosophical framework for examining the justifiability of statutory-rape laws, I make no pretense to having canvassed the laws of different countries, let alone subjected those laws to comparative analysis. Nor is the essay meant to be historical in nature, although I do say a few things (by way of introduction) about the first statutory-rape laws. My examples and illustrations are drawn solely from American law, which is the body of law I know best.

6. Statutory rape is also known as “carnal knowledge of a juvenile,” “indecent liberties with a child,” and “lewd and lascivious conduct with a child.” See ibid.

7. See American Jurisprudence: A Modern Complete Text Statement of American Law, State and Federal, 2nd ed., vol. 65 (Rochester, NY: The Lawyers Co-Operative Publishing Company, 1973) at 769–71 (s.v. “Rape”).

8. Statute of Westminster I, 1275, 3 Edward 1, chap. 13.

9. Prevost, Earle G., “Statutory Rape: A Growing Liberalization” (1966) 18 S. Carolina L. Rev. 255.Google ScholarPrevost is paraphrasing the statute.

10. The Common Informers Act, 18 Elizabeth, chap. 7 (1576). See William Blackstone, Commentaries on the Laws of England (many editions), book IV, at ^*212. According to Blackstone, the Elizabethan statute made forcible rape a “felony without benefit of clergy; as … also the abominable wickedness of carnally knowing and abusing any woman child under the age of ten years: in which case the consent or non-consent is immaterial, as by reason of her tender years she is incapable of judgment and discretion”: Blackstone, Commentaries, book IV at ^*212.

11. See Eidson, Rita, “The Constitutionality of Statutory Rape Laws” (1980) 27 UCLA L. Rev. 757 Google Scholar at 762. Statutes are not part of the common law as the latter term is usually understood, but some statutes, such as SRLs, were accepted with the common law.

12. See Wise, Steven A., “State v. Heisinger: ‘Statutory Rape’s’ Presumption of Incapacity to Consent—Rebuttable or Conclusive?” (1979) 24 S. Dakota L. Rev. 523 Google Scholar at 525, n. 19.

13. Supra note 5 at 865.

14. Supra note 9 at 254.

15. See, for example, Black’s Law Dictionary 6th ed. (St. Paul, MN: West Publishing Company, 1990) at 1260 (s.v. “rape”). The Kansas Supreme Court defined “rape” as follows: “The act of sexual intercourse committed by a man with a woman not his wife and without her consent, committed when the woman’s resistance is overcome by force or fear or under other prohibitive conditions”: State v. Lora, 213 Kan. 184, 515 P.2d 1086 at 1093 (1973).

16. This is true in England and Canada as well as in the United States. For the United States, see Model Penal Code, sec. 1.12( 1) (“No person may be convicted of an offense unless each element of such offense is proved beyond a reasonable doubt. In the absence of such proof, the innocence of the defendant is assumed”); State v. McGuire, 124 Ariz. 64, 601 P.2d 1348 (Ariz. Ct. App. 1978). For England, Canada, and other Commonwealth countries, see Tur, Richard H.S., “Rape: Reasonableness and Time” (1981) 3 Oxford J. of Legal Stud, at 434–35.Google Scholar

17. According to Kole, supra note 5 at 868: “the eventual outcome of most sexual offense cases turns on which witness, either the complaining witness or the defendant, is more credible.” For a notaltogether-flattering description of the criminal-justice process as it pertains to rape, see Gold, Sally & Wyatt, Martha, “The Rape System: Old Roles and New Times” (1978) 27 Catholic Univ. L. Rev. 695.Google Scholar

18. Black’s Law Dictionary, 6th ed. supra note 15 at 1412 (s.v. “statutory rape”).

19. Supra note 5 at 867. The contrast with the marital-rape exemption is striking. Women and girls below a certain age are conclusively presumed by law to be incapable of consenting to sexual intercourse. Married women, traditionally and even today in some states, are conclusively presumed to consent to sexual intercourse, even when it is forced on them by their husbands. The juxtaposition of these conflicting conclusive presumptions has not escaped the notice—or condemnation—of feminists. See, for example, Brownmiller, Susan, Against Our Will: Men, Women and Rape (New York: Simon and Schuster, 1975) at 382;Google Scholar MacKinnon, Catharine A., Toward a Feminist Theory of the State (Cambridge, MA: Harvard University Press, 1989) at 175.Google Scholar

20. “In a prosecution for statutory rape, the state must prove only two elements—that the prosecutrix [female complaining witness] was under the age of consent and that penetration occurred”: supra note 9 at 255. Statutory rape can be considered a strict-or absolute-liability offense because it makes the mental state of the perpetrator irrelevant.

21. 450 U.S. 464(1981).

22. Radical feminists have been particularly critical of this decision and the reasoning on which it is based. See, for example, Taub, Nadine & Schneider, Elizabeth M., “Women’s Subordination and the Role of Law” in Kairys, David ed., The Politics of Law: A Progressive Critique, rev. ed. (New York: Pantheon Books, 1990) at 166–71;Google Scholar Williams, Wendy W., “The Equality Crisis: Some Reflections on Culture, Courts, and Feminism” in Bartlett, Katharine T. & Kennedy, Rosanne, eds, Feminist Legal Theory: Readings in Law and Gender (Boulder, CO: Westview Press, 1991) at 18–22;Google ScholarOlsen, supra note 3 at 413–28.

23. Just as a theory, whether positive or normative, is necessarily abstract—an idealization rather than a description of reality—so is an analytical framework. There are undoubtedly other frameworks for understanding SRLs; I readily concede that. I happen to think that the tripartite framework described in the text sheds the most light on the debates that rage over SRLs and other features of rape law. Ultimately, the reader must determine for himself or herself whether this is so. Nor do I claim that every conservative (liberal, radical) holds every view I ascribe to that theory. I am trying to state three themes on each of which there are many actual and possible variations.

24. The Texas statute does not employ the word “rape.” This term and others (for example, “sexual abuse” and “rape of a child”) were replaced by “sexual assault” in the 1983 revision. See Schmolesky, John, “Criminal Law” (1984) 38 Southwestern L.J. 497 Google Scholar at 521. It is not clear why the change was made.

25. Vernon’s Texas Codes Annotated (St.Paul, MN: West Publishing Company, 1989), Penal Code sec. 22.011(a)(2) (pocket part 1994).

26. Ibid, at sec. 22.011(c)(1) (1989).

27. Ibid, at sec. 22.011(c)(2) (1989).

28. It is not, however, impossible to rape one’s overage spouse. In 1991 the Texas Legislature amended the sexual-assault statute to require, in prosecutions against a spouse, “a showing of bodily injury or the threat of bodily injury.” Ibid, at sec. 22.011(g) (1994). This gives spouses less protection than nonspouses, who can be victimized in the absence of bodily injury or the threat thereof. See ibid, at sec. 22.011(b) (1994), for a list of circumstances that constitute absence of consent.

29. Ibid, at sec. 22.011(d) (1989).

30. According to Schmolesky, “The defense clarifies that, for example, a doctor’s use of a rectal thermometer with a child does not constitute an offense”: Schmolesky, supra note 24 at 522, n. 231.

31. Texas Penal Code sec. 22.011(e) (1989).

32. In Texas, as elsewhere, there is a significant difference between a defense and an affirmative defense. The difference in Texas is that with respect to a defense, the defendant has the burden of production and the prosecutor the burden of persuasion, the standard for the latter being proof beyond a reasonable doubt. Ibid, at sec. 2.03 (1989). With respect to an affirmative defense, the defendant has both the burden of production and the burden of persuasion, the standard for the latter being proof by a preponderance of the evidence. Ibid, at sec. 2.04 (1989).

33. Ibid, at sec. 12.33 (1989). The minimum term of imprisonment for a second-degree felony is two years. There is no minimum fine.

34. That is to say, the acts specified by these statutes are prohibited even if between consenting adults and even if done in private.

35. I say “covered” rather than, for example, “protected” because there is disagreement about whether SRLs protect or paternalize (or both) those who fall within their ambit, and whether these are objectionable. I discuss this matter in the next section.

36. This is no longer a good example—at least in Texas. Texas’s fornication statute was repealed as of 1 January 1974, but other states still prohibit fornication, which is usually defined as “Unlawful sexual intercourse between two unmarried persons.” Black’s Law Dictionary, 5th ed. (St. Paul, MN: West Publishing Co., 1979) at 588 (s.v. “fornication”). For a case applying the (then-effective) Texas statute, see Douglas v. State, 102 S.W.2d 230 (Tex. Crim. App., 1937).

37. See Olsen, supra note 3 at 401–02: “These laws [SRLs] pose a classic political dilemma for feminists. On one hand, they protect females; like laws against rape, incest, child molestation, and child marriage, statutory rape laws are a statement of social disapproval of certain forms of exploitation. To some extent they reduce abuse and victimization. On the other hand, statutory rape laws restrict the sexual activity of young women and enforce the double standard of sexual morality.”

38. It is paternalistic in two senses. First, it treats a mature individual like a child; second, it is a case of men telling women what they can and cannot do. Perhaps we should say that the law is both parentalistic and paternalistic. According to Prevost, “The theory behind prosecution in cases of consent is that the female’s willingness to consent is only apparent. She is regarded as resisting, no matter what her state of mind, for the law is said to resist for her,” supra note 9 at 256 (emphasis added) (citing State v. Nagel, 75 N.D. 495, 28 N.W.2d 665 (1947)).

39. For a clear expression of this ambivalence, see Tong, Rosemarie, Women, Sex, and the Law (Totowa, NJ: Rowman and Allanheld, 1984) at 113–14.Google ScholarI should point out that it is not clear whether Tong herself is ambivalent; her discussion of statutory rape is primarily, although not exclusively, expository and analytical.

40. “Trespass” is defined in law as “An unlawful interference with one’s person, property, or rights. At common law, trespass was a form of action brought to recover damages for any injury to one’s person or property or relationship with another”: Black’s Law Dictionary, 5th ed., supra note 36 at 1347 (s.v. “trespass”) (emphasis added). Criminal trespass is a trespass in which one enters or remains “upon or in any land, structure, vehicle, aircraft or watercraft by one who knows he is not authorized or privileged to do so.“ Ibid, (emphasis added).

41. Any woman’s sexuality is valuable in this view, but that of a virginal or chaste woman is most valuable of all. Anthropologist Peggy Reeves Sanday distinguishes two types of society, what she calls “rape-prone” and “rape-free.” One “theme” of the former type is that women are (and are understood as) the property of men. See Sanday, Peggy Reeves, “The Socio-Cultural Context of Rape: A Cross-Cultural Study” (1981) 37 J. of Soc.Google Scholar Issues 5. In some “rape-prone” societies, Sanday writes, “women comprise the medium of exchange,” ibid, at 15.

42. “[T]he law on statutory or common-law rape originated to protect property, not virtue. It is a heritage of feudal times when marriage rights and wardships were valuable property rights. It may be noted that originally in the law of divorce, only the husband was allowed a divorce, and only on account of adultery. The theory was property. Adultery was considered a contamination of a man’s property—his wife—as well as a ruination of the bloodline. (The feudal lord, however, was allowed the jus primae noctis, the right of the first night.)”: Slovenko, Ralph, “Statutory Rape” in Medical Aspects of Human Sexuality vol. 5 (New York: Hospital Publications, 1971) at 161.Google Scholar

43. “Traditionally, rape was the offense of depriving a father or husband of a valuable asset—his wife’s chastity or his daughter’s virginity. Sexually conservative men and women continue to value these assets”: Posner, Richard A., Sex and Reason (Cambridge, MA: Harvard University Press, 1992) at 395 Google Scholar (citation omitted).

44. Murphey, Dwight D., “Feminism and Rape” (1992) 17 The J. of Soc, Pol. and Econ. Stud. 21.Google Scholar

45. “Battery” is defined in law as “the unlawful application of force to the person of another.” Black’s Law Dictionary, 5th ed., supra note 36 at 139 (s.v. “battery”)

46. “What might otherwise be a battery may be justified; and the consent of the victim may under some circumstances constitute a defense”: ibid, at 139.

47. Supra note 2 at 54.

48. “Rape is a violation of a woman’s sexual self-determination”: Andra, Medea & Thompson, Kathleen, Against Rape (New York: Farrar, Straus and Giroux, 1974) at 14 Google Scholar (emphasis in original).

49. Shafer, Carolyn M. & Frye, Marilyn, “Rape and Respect,” in Vetterling-Braggin, Mary, Elliston, Frederick A. & English, Jane, eds, Feminism and Philosophy (Totowa, NJ: Littlefield, Adams & Company, 1977) at 342.Google Scholar

50. Supra note 43 at 388; Shafer & Frye, supra note 49 at 334: “Since we share the public view that rape is morally wrong and gravely so, and since we would not want to say that there is anything morally wrong with sexual intercourse per se, we conclude that the wrongness of rape rests with the matter of the woman’s consent” (citation omitted).

51. The Compact Edition of the Oxford English Dictionary, vol. 1 (Oxford: Oxford University Press, 1971) at 1454. For an excellent discussion of the nature and implications of insult as a social phenomenon, see Mohr, Richard D., Gays/Justice: A Study of Ethics, Society, and Law (New York: Columbia University Press, 1988) at 57–62.Google ScholarMohr’s immediate concern is with insults to gays, but his analysis goes well beyond that.

52. See MacKinnon, Catharine A., “Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence” in Bartlett, Katharine T. & Kennedy, Rosanne, eds, Feminist Legal Theory: Readings in Law and Gender (Boulder, CO: Westview Press, 1991) at 185,Google Scholar 200, n. 41.

53. See, for example, Mehrhof, Barbara & Kearon, Pamela, “Rape: An Act of Terror” in Koedt, Anne, Levine, Ellen & Rapone, Anita, eds, Radical Feminism (New York: Quadrangle Books, 1973) at 228–33;Google Scholar Peterson, Susan Rae, “Coercion and Rape: The State as a Male Protection Racket” in Vetterling-Braggin, M., Elliston, F.A. & English, J., eds, supra note 49 Google Scholar at 360–71; MacKinnon, supra note 52 at 200, n. 41; Card, Claudia, “Rape as a Terrorist Institution” in Frey, R.G. & Morris, Christopher W., eds, Violence, Terrorism, and Justice (Cambridge: Cambridge University Press, 1991) at 296–319.CrossRefGoogle Scholar

54. It is a mistake to read MacKinnon as advocating the elimination of the line between rape and so-called normal sexual intercourse—that is, as making all intercourse rape. Critics are being uncharitable when they ascribe that view to her. It is not MacKinnon's view that all sex is, let alone must be, rape, although, under conditions of patriarchy (male dominance), very much of it is. What MacKinnon advocates is redrawing the line, not eliminating it. Some acts that are now considered normatively and legally acceptable (sex) would be considered unacceptable (rape). For discussion of this point, see MacKinnon, supra note 52 at 189.

55. See ibid. 187–90.

56. Supra note 19 at 174 (italics added).

57. Ibid.: “Perhaps the wrong of rape has proved so difficult to define because the unquestionable starting point has been that rape is defined as distinct from intercourse, while for women it is difficult to distinguish the two under conditions of male dominance” (citation omitted).

58. Ibid, at 182; see also ibid, at 245.

59. See supra note 52 at 186.

60. Feinberg, Joel, The Moral Limits of the Criminal Law, vol. 1: Harm to Others (New York: Oxford University Press, 1984) at 3.Google Scholar

61. This, at any rate, is how Feinberg, a liberal, conceives of liberalism (what he calls “the liberal position”). See ibid, at 26. Feinberg is my paradigmatic liberal.

62. These are paraphrases of liberty-limiting principles stated, although not held, by Feinberg. See ibid, at 26–27.

63. I am well aware, especially in light of criticism by an anonymous reviewer, that not every radical and not every radical feminist is a statist—someone who advocates the use of state power to achieve certain goals. There are anarchistic, Marxist, and separatist radicals as well as statist radicals. The radicals I have in mind, however, such as MacKinnon and Olsen, are statists in this sense. They do wish to use the state—and in particular the apparatus of law—to achieve their goals. Of course, wishing to use the state to achieve one’s goals—or to prevent the state from being used by others to achieve their goals—is not incompatible with working for changes outside legal or political channels (through education or consciousness-raising groups, for example). A radical, by definition, wishes to effect fundamental social change, change that goes beyond tinkering with the basic structure or institutions of society. Which means one selects to do this is a matter about which reasonable, well-intentioned radicals can and do disagree. Disagreement about means should not be allowed to obscure a more important agreement about ends.

64. The liberal may interject that “liberty” has now changed its meaning from absence of constraint to ability to act. But that is the point. The radical challenges the liberal’s negative conception of liberty. Negative liberty under conditions of unequal power is without value to the powerless.

65. In her typically pungent language, MacKinnon writes: “Other than in rare and truly contrapuntal glimpses, to seek an equal sexuality without political transformation is to seek equality under conditions of inequality”: MacKinnon, Catharine A., “Pleasure Under Patriarchy” in Geer, James H. & O’Donohue, William T., eds, Theories of Human Sexuality (New York: Plenum Press, 1987) at 90.Google Scholar

66. See the earlier note about varieties of radicalism. The objective of empowering women does not preclude a long-term goal of transforming the state so that it no longer reflects or expresses male interests. For a discussion, see supra note 52; supra note 19. For a critical but sympathetic look at radical feminism, which the author describes as “a young, marginal, and rebellious social movement” (28), see Cocks, Joan, “Wordless Emotions: Some Critical Reflections on Radical Feminism” (1984) 13 Politics & Society 27.Google Scholar

67. It is not clear whether the conservative views the father as having rights to his daughters’ sexuality or whether the father is understood as the agent of his daughters’ prospective husbands, guarding the daughters’ chastity until they marry, at which time he “gives them up in marriage.” Notice the assumption that women are heterosexual and will marry. This ties in with the conservative emphasis on family and paternal lineage.

68. One commentator has called this the “treasure theory” of statutory rape. See Comment, “Forcible and Statutory Rape: An Exploration of the Operation and Objectives of the Consent Standard” (1952) 62 Yale L.J. 55 at 75–76. Another adds: “The idea is that virginity is a thing of social, economic, and personal value, and at an early age, a girl is incapable of properly dispensing this treasure for she is ignorant as to the nature and implications of the sexual act”: supra note 9 at 257. Interestingly, Prevost uses the word “trespasser” to describe the man who “seeks to take advantage of” the underage female.

69. For an historical discussion of the double standard, in which different standards apply to male and female sexuality and conduct, see Thomas, Keith, “The Double Standard” (1959) 20 J. of the Hist, of Ideas 195.Google Scholar

70. Here I paraphrase Joel Feinberg. See supra note 2 at 12.

71. Ibid, at 331.

72. Ibid. Feinberg is discussing the harms of fondling, but presumably the harms of intercourse are at least as significant and extensive as those. Prevost says that “intercourse at a pre-pubescent age can result in actual physical and mental damage”: supra note 9 at 256.

73. Supra note 2 at 326.

74. For an argument in support of this claim, see Comment, supra note 68 at 78-79: “The presumption that a young girl lacks the capacity to comprehend the nature and implications of sexual intercourse should be rebuttable [as opposed to conclusive]. The defendant should be permitted to introduce evidence which tends to show that the complaining witness, in fact, understood the significance of the act in question. If the accused can prove such comprehension affirmatively, the girl’s consent should have the same legal effect as that of her older sister.”

75. See supra note 2 at 330 for a discussion and critical analysis.

76. The following statute has been proposed: “Any man who has sexual intercourse with a girl under the age of seventeen years shall be guilty of rape. But if the girl is fourteen years or over and comprehends the nature and implications of the sex act, then her consent to the act in question shall be an absolute defense. The burden of proving the girl’s comprehension shall be on the accused and relevant evidence of her previous experience in, or knowledge of, sexual matters, from whatever source such experience or knowledge has been obtained, shall be admissible for this purpose”: Comment, supra note 68 at 80.

77. Posner expresses this well when he says “[T]he more permissive the society is, and therefore the better informed girls are about sex, the lower the age of consent should be, not because the permissive society is insensitive to the need of children for protection against coercive sex, but because children in a permissive society are better informed about sex and therefore better able to protect themselves.” See supra note 43 at 402 (citation omitted).

78. The radical would agree with the liberal on this point, although for different reasons. The conservative would disagree with both of them. The conservative, as we saw, views the wife as her husband’s property, and one cannot steal or trespass on one’s own property.

79. It also, arguably, undercuts the inference from tender age to incapacity to consent. The thinking seems to be that a female who has had “previous sexual contact of any sort with other men” understands the nature and significance of intercourse and therefore has the capacity to consent. For an argument to this effect, see Comment, supra note 68 at 78–79.

80. Olsen, supra note 3 at 406.

81. For an expression of this view, see MacKinnon, supra note 52 at 188.

82. Olsen, supra note 3 at 408.

83. Ibid.

84. Ibid, at 408–09 (citations omitted).

85. Ibid, at 409, n. 105.

86. See, for example, Williams, supra note 22 at 20–21. Williams writes: “The premise underlying statutory rape laws was that young women’s chastity was precious and their naivete enormous. Their inability knowingly to consent to sexual intercourse meant that they required protection by laws which made their consent irrelevant but punished and deterred the ‘aggressive’ male,” ibid, at 20. See also Taub & Schneider, supra note 22 at 168.

87. Olsen, supra note 3 at 410.

88. See supra note 39 at 114. Tong is not here defending a graded statute. I assume the age range she specifies (twelve to fourteen) would be the minimum age for effective (that is, legally valid) consent to sexual intercourse. I am suggesting that there might be another class just above this one in which only certain acts under certain conditions are prohibited and punished.

89. See, for example, Brownmiller, supra note 19 at 382–83. Brownmiller would deny prosecutorial discretion in cases of intercourse with “children below the age of twelve.” For those “above twelve and below sixteen,” she would allow prosecutorial discretion and lessen penalties for those tried and convicted. Ibid, at 383.

90. A radical might also defend an age-differential defense such as that in Texas on grounds that the greater the age difference between the male aggressor and the underage female, the more likely he is to exploit her. Conversely, the closer in age the two parties are, the less the likelihood of exploitation. Some courts have rationalized age-differential defenses in this manner. See Kole, supra note 5 at 866.