Whose state of residence governs statutory rape prosecutions?

June 21, 2010 2:54 PM

Are statutory rape prosecutions based on the state of residence of the accused, the state of residence of the victim, or where the sex occurred?

Our hypothetical example:

Pat is 16 years and 6 months old. Pat lives in state X where the age of consent is 17.

Sandy is a middle-aged adult. Sandy lives in state Y where the age of consent is 16.

Nearby is state Z where the age of consent is 18.

What is Sandy's vulnerability to prosecution for statutory rape for sex acts performed in states X, Y, and Z respectively?

posted by Joe Beese to law & government (12 answers total)

Crimes are prosecuted in the state where the crime occurred, unless it is for some reason a federal matter (crossing state lines with a minor could be federal kidnapping) and therefore the crime will be prosecuted in federal court.

IAMNAL, but I think I'm mostly correct.
posted by zizzle at 3:15 PM on June 21, 2010

Generally speaking, a crime will be prosecuted in the jurisdiction where it happened. So Sandy would be liable if they had sex with Pat in X or Z.

In the same way that you couldn't be prosecuted in Utah for smoking pot in Amsterdam, if Sandy had sex with Pat only in Y, they're not liable anywhere.

That is generally speaking, without regard to specific laws. The thing is, that doesn't necessarily hold for statutory rape, for pretty obvious reasons.

There are laws on the books in some places about child sex tourism. It looks like the American law only prohibits commercial sexual activity with those under 18. But the larger point is made, that you¹ can be prosecuted in your home jurisdiction for something done outside, when there's a law that makes it a crime.

As another example, here in Canada the law is more strict: 18 is the age of consent for commercial sexual activity, but 16 is the age of consent for generic sexual activity, whether or not it's a crime in the country of sexual activity (except of course if you're prosecuted in that country, but ignore that bit)

So to sum up: usually it's wherever the activity happened, but beyond that there might be specific laws on the books making it a crime.

1: You in the generic sense, naturally.
posted by Lemurrhea at 3:16 PM on June 21, 2010 [1 favorite]

Sandy and Pat have sex in State Y = legal.
S and P have sex in State X = State X prosecutes.
S and P have sex in State Z = State Z prosecutes.
S and P have sex in either State X or Z = Fed. gov't prosecutes under the Mann Act.
posted by lockestockbarrel at 3:16 PM on June 21, 2010 [2 favorites]

I can't find the news article now, but recently in the past few months a guy drove from his state X (North Carolina?) to pick up a 16yo minor he met online in state Y. They were driving back to his State X where she would be of legal consenting age. They stopped in State Z (Virginia?) for the night in a hotel or motel and have sex. If I recall correctly, he is being charged in State Z.

Here's a case of a 16yo boy in Toronto and an older woman who flew to Canada where 16 is legal, but when she returned to Texas (17) she was charged with online solicitation of a minor and child enticement (but not statutory rape).

Given that, Sandy is vulnerable to prosecution to other charges if not statutory rape.
posted by yeti at 3:20 PM on June 21, 2010 [1 favorite]

S and P have sex in either State X or Z = Fed. gov't prosecutes under the Mann Act.

Even if Sandy and Pat met for the first time in state Z? Or if Pat traveled to state Z independently?
posted by Joe Beese at 3:27 PM on June 21, 2010

Just to quibble with lockestockbarrel & yeti:

It depends on how S&P meet. Suppose they randomly met in either X or Z, and had sex there, no further interaction. The Mann Act has no application there.

And similarly, yeti's case is relevant only to the extent that there was communication & solicitation prior. If they'd met in Toronto and had sex, then generally speaking it'd be fine.

Although yeti's first scenario would be covered by the Mann Act.
Hadn't heard of that Act - quite interesting.
posted by Lemurrhea at 3:32 PM on June 21, 2010

Also, I think it still needs to be mentioned that the gender of Sandy and Pat may matter if you're talking about likelihood of prosecution. Not so much if it's boy/girl [i.e. who is older], but if they are the same sex. My go-to for this sort of thing is AgeofConsent.com but it hasn't been updated in a few years and is likely out of date. Otherwise, if there are not federal issues [and you'd be surprised in some ways how they can work the Mann Act into things] then yeah it's the state where the sex occurred.
posted by jessamyn at 3:32 PM on June 21, 2010 [2 favorites]

Oh hey, hadn't seen your update. By my reading of the criminal resource manual, transportation is required.

Caveats with IANAL, I don't study law in the States, I'm getting all of this off the 'net, as you expect.
posted by Lemurrhea at 3:35 PM on June 21, 2010

I'm an intern at a Children's Advocacy Center so this comes from the information I've been learning.

The two agencies (primarily) that deal with sexual assault of children are CPS and law enforcement. CPS only gets involved if the abuser has direct contact with the child (like a teacher, someone who lives in the house etc.). Assuming this took place outside the home then you're looking for law enforcement. The police department that has jurisdiction will the one that has jurisdiction over the place where the incidents took place.

For instance, is X lives in Texas and Y lives in New Mexico but they meet while X was on vacation in New Mexico, the New Mexico police with handle the case.
posted by Saminal at 4:28 PM on June 21, 2010

I think in a case such as yeti cites as an example, wouldn't that also be transporting a minor across state lines (without parental consent, I believe)? So in the OP's scenario, couldn't Sandy be prosecuted for transporting Pat out of State X regardless of whether any sexual activity actually took place?
posted by deep thought sunstar at 4:47 PM on June 21, 2010

I would just like to cite to 715 F.2d 543 (1983), which is about a minor and an adult having sex in various states, not because it's necessarily applicable but because it contains the phrase "transcontinental copulation spree":

"With this kind of record, the jury must have sized him up as a highly unsavory character who stood badly in need of attending to, for it was undisputed that he had transported a seventeen year old girl on a transcontinental copulation spree."

The appellate court felt the 17-year-old consented to being transported across state lines, was the upshot of the case.
posted by Eyebrows McGee at 6:21 PM on June 21, 2010 [2 favorites]

...continuing deep thought sunster's thoughts, as well as what has been implied or referred to by others in this thread:

I think there may be potentially broad interpretations of the Mann Act that could be thrown together by a zealous prosecution as well as the existence of a plethora of other potentially criminal acts - enticement, conspiracy, transport, contributing to delinquency... the list could go on and on as far as I know... well, there could be many other things at play instead of just "age of consent".

The idea should be discouraged until Pat is at least seventeen. And skip State Z entirely.
posted by Xoebe at 10:41 PM on February 12, 2011