No man’s land: the denial of victimisation in male statutory rape cases

ABSTRACT

Through a synthetic review (i.e., a synthesis or critical analysis of a body of knowledge to identify trends, discrepancies, and new lines of inquiry), of the case law, supplemented by empirical literature, we aim to achieve two goals: (1) identify the factors that influence judges’ perceptions of male victims of female perpetrators of statutory rape, and (2) juxtapose conflicting perspectives between traditional legal professionals and scholars and more contemporary and critical theorists and researchers. This review suggests that the narratives within the case law used to discuss statutory rape perpetuate the marginalisation, devaluation, and invisibility of male victims.

KEYWORDS:

• Victimisation
• gender
• legal analysis
• statutory rape

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1 To be clear, the focus of this review rests solely on statutory rape. While it is true that significant modifications have been made to the definition of rape over time (see Bierie & Davis-Siegel, 2015), this review’s goal is not one of measurement but rather, to shed light on teenage boys as victims of sexual victimisation by older women.

2 For a much different perspective, see Angelides (2008) who argues that the criminal justice system may also judicially victimise “non-victims” through the measurement of harm against the “norm of female victims” (p. 369). That is, the desire to protect teenage boys undermines their agency in order to satisfy some rigid interpretation of gender neutrality.

3 As defined by Finkelhor (1984), sexual abuse refers to sexual contact that meets one of three conditions- there is a substantial age difference between the two participants; one of the participants is in a position of power or authority relative to the child; or the sexual act is the product of violence or trickery (p. 101). Genital violence, on the other hand, need not involve sexual contact or a sexual advance. Rather, it may be characterised by intentional physical actions such as a kick of punch to the genitals during an argument or fight (Boney-McCoy & Finkelhor, 1995).

4 Michael M., 450 U.S. 461 (1981) marked the first time that the Supreme Court directly addressed the issue of statutory rape. This case focused on the Equal Protection issue with regards to prosecuting boys for statutory rape, but not girls. A later case would address a range of issues including the meaning of “sexual abuse of a minor” (Esquivel-Quintana v. Sessions, 137 S. Ct.1562, 2017).

5 County of San Luis Obispo v. Nathaniel J., 50 Cal. App.4th 84250 Cal. App. 4th 842 (1996).

6 Comm. v. A Juvenile, 442 N.E.2d 1155 (1982); Comm. Ex rel. Rush v. Hatfield, 929 S.W.2d 200 (1996); Dept. of Revenue v. Miller, 688 So.2d 1024 (1997); Hamm v. Office of Child Support Enforcement, 985 S.W.2d 742 (1999); In re B.T., 193 Cal. App.4th 685 (2011); In re Parentage of J.S., 550 N.E.2d 257 (1990); In re Paternity of J.L.H., 441 N.W.2d 273 (1989); In the Matter of Noah Weinberg v. Omar E., 106 A.D.2d 448 (1984); In the Matter of the Paternity of K.B., 104 P.3d 1132 (2004); Jevning v. Chicos, 499 N.W.2d 515 (1993); L.M.E. v. A.R.S., 680 N.W.2d 902 (2004); Mercer County DSS v. Alf M. 589 N.Y.S.2d 288 (1992); Schierenbeck v. Mary K. Minor, 367 P.2d 333 (1961); Hermesmann v. Shane Seyer, 847 P.2d 1273 (1993); State v. Anonymous, 768 P.2d 174 (1988).

7 Cal Wel & Inst Code §707 has subsequently been revised a number of times most recently in 2016 when language was added that requires aversion to risk and peer pressure to be considered along with other factors such as mental and emotional state.

8 Wade H. McCree served as Solicitor from 1977 to 1981. Of note, his colleagues praised his judicial temperament and legal acumen notwithstanding the increasing adversarialness of the Solicitor’s office. Perhaps the singular focus of Solicitor McCree was making clear the distinction between law and policy; however, this endeavour was a constant struggle (Kalt, 1998, pp. 738–739).

9 Justice Stevens’ opinion was premised on one very important question: Are the differences between boys and girls sufficiently great that a state can legitimately discriminate on the basis of “sex”? (450 U.S. 464, 497, 1981). In his analysis, Justice Stevens observed that the law, as written, implies that the decision to engage in sexual activity (risk-taking behaviour) is a decidedly male decision. However, there is no evidence that would support such a presumption other than presumed social conventions and perhaps irrational prejudices (450 U.S. at 501).

10 Justice Brennan made this point quite clear in his dissenting opinion where he writes “California’s law not only defies common-sense but it also presumes that young men are capable of making decisions regarding sexual activity (and with whom) whereas young girls are incapable of making similar decisions” (450 U.S. 464, 494).

11 The term “true victim” is often used to describe how the legal and criminal justice systems assess the credibility of female victims. One is considered a “true victim” if her attacker was a stranger, she fought back, and there were physical manifestations (bruising, cuts, etc.) of the attack (Estrich, 1987).

12 See Robert Cover’s (1986) “Violence and the Word” for a discussion of how legal interpretative practices have the capacity to shape and mask the consequences of victimisation experiences.

13 See In Re Paternity of J.L.H., 149 Wis.2d 349 (1989); Mercer County Dept. of Social Services v. Alf N., 589 N.Y.2d 288 (1992); Jevning v. Cichos, 499 N.W.2d 515 (1993); Commonwealth ex. Rel. Rush v. Hatfield, 929 S.W.2d 200 (1996).

14 Victim blaming may be summarised as occurrences wherein knowledge of outcomes affects our perceptions of behaviour prior to the occurrence of such outcomes (Davies & Rogers, 2006; Guerrina, 1998; Janoff-Bulman, Timko, & Carli, 1985; van der Bruggen & Grubb, 2015; Weiss, 2009).

15 More recently, the Nick Olivas case received national attention for many of the same reasons seen in Nathaniel J. and other paternity cases. Olivas, fourteen at the time and from a troubled home, had sex with a twenty-year old woman who later became pregnant. Some six years later, the mother sought child support payments from Nick who was unaware that he had fathered a child. Criminal charges were never filed against the older women. There have been no subsequent appeals in this case that would shed judicial light on these issues.

16 Nevada statute (Nev. Rev. Stat. Ann. 200.364, 200.368 refers to statutory rape; Nev. Rev. Stat. Ann. 201.540, 201.550 refers to teacher/student relationships).

17 Pennsylvania statute (Title 18 Chapter 63 Section 6301).

18 Wisconsin statute (Wi. Stat. Ann. 948.07).