by Ross Voorhees

Created on: March 03, 2009

As long as there are Statutory Rape laws, it is imperative that a national age of consent be established that encompasses all states. Why is this important? To understand, we have to first look at the concept of statutory rape and its history in the legal system.

Normally, when an individual is charged with a crime, the prosecution MUST prove the two primary elements of a crime: Actus Reus, that the criminal act was indeed committed, and Mens Rea, that the person who committed the crime had the "mental state" necessary at the time the crime was committed. For example, if an individual is to be found guilty of First Degree homicide, the prosecution must prove that the defendant actually committed the crime (Actus Reus), and that they had mentally thought out the act beforehand (Mens Rea).

Statutory Rape, on the other hand, only requires that the ACT be proven, regardless of mental state or previous thought. There is no Mens Rea component in Statutory Rape. Whether the individual charged thought that the person they were having sex with was of legal age or not does not matter. Whether or not their partner consented does not matter. Only the fact that an individual DID engage in sex with a person incapable of consent is enough to prove the crime, brand an individual as a sex offender for the rest of their lives, and in many cases, place individuals who unwittingly engaged in consentual sexual activity in the same category as rapists and real sexual offenders.

While this argument may sound like an advocation for legalizing under-aged sex, it is in fact an argument to impose the same standards of Mens Rea required for virtually every other crime of this severity, and we only have to look at the facts of the Massachusetts case, State v. Garnett, 332 Md. 571, 632 A.2d 797 (1993) that established the concept of Statutory Rape to see why.

In 1976, then State Prosecutor Sandra Day-O'Connor helped rewrite Massachusetts rape laws to make them gender neutral, meaning that women could be equally guilty of rape as men. The second-degree rape section of state law was significantly changed and approved by the state legislature to read as follows:

463. Second degree rape
(a) Elements of offense. - A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person:

(1) By force or threat of force against the will and without the consent of the other person; or

(2) Who is mentally defective, mentally incapacitated, or physically helpless,

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