Home Age of consent Age of consent in the USA

Age of consent in the USA

September 29, 2023

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This article has been written by Aarushi Mittal, student of National Law University, Odisha, Cuttack. This article dives deep into the varying ages of consent across the different states in the United States of America and the laws governing them.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

Consent is an essential component in achieving healthy interactions and relationships. The age of consent is an important part of the legal framework of a place. It acts as a shield to protect minors from abusive, or harmful interactions and relationships. It manages to define and maintain boundaries within relationships so that all parties feel safe and secure. It basically promotes and encourages healthy relationships based on mutual respect and consideration. It is necessary for such harsh and stringent laws to exist, as the punishments for violating these laws act as a deterrent against future offences.

The age of consent is the minimum age under law, at which an individual can consent to engaging in sexual activities, entering into a contract, getting married or starting a buisness. This is the case since minors, due to their age and limited life experience, are considered to be unable to fully understand the consequences of their actions or what they are agreeing to. Thus, the law prescribes an age which acts as a benchmark for when an individual is considered to be mature and capable of giving informed consent to engage in such acts.

Further, the age of consent intends to protect young people from abuse and exploitation and prevent them from being taken advantage of in any way. Through this article, we will take a look at the age of consent in America, and the differences that exist across its various states. In addition, we will examine the important laws in the US that establish the age of consent.

What is age of consent for sexual activities

The age of consent is the lowest age, as defined by the law, above which a person is recognised to be capable of consenting to any sexual activity. It is against the law for an individual to be a part of any form of sexual activity with another person below this specified age of consent. When these age of consent laws are violated, the individual is liable to be punished under the statutory rape laws of that territory. As per this law, the individual whose age is above the age of consent is termed to be the offender, and their sexual partner whose age is below that of the age of consent is the victim. For example, two people, Tyler and Sarah, live in a state where the law prescribes the age of consent to be 17 years for both boys and girls. Tyler is 21 years old, and Sarah is 16. Any sexual act between the two of them will be considered to be statutory rape, irrespective of whether there was any consent between them. In such a situation, Tyler is labelled as the offender and will be punished as per the laws of the state he lives in.

The age of consent differs across the world but usually ranges from 13-18 in most places. However, this isn’t the case everywhere. Nigeria, a country in Africa, has the lowest age of consent at 11 years. Some other countries, which are conservative in matters relating to sexuality and gender, don’t have a specific age of consent but require individuals to be married before they can legally have sex. These include countries like Pakistan, Qatar, Iran, and Afghanistan. It is also pertinent to note that the intention of age of consent laws, which curb sexual exploitation of minors, is not the same as the laws pertaining to minimum age for marriage, which are designed to discourage child marriages.

The history of age of consent

Laws dealing with age of consent have been in place since time immemorial. From the point it was first introduced, these laws have undergone a significant change in the way they have been defined and used. They have always been an important part of conversations and debates on ending child marriages, achieving gender equality, and reducing teenage pregnancies. Since the time they came about, there has also been a noticeable shift in their aims and objectives. In today’s time, these laws aim to protect children from coercive or exploitative sexual relationships, while, back when they originated, their primary goal was to preserve the chastity of young women.

Age of consent was first observed in the middle ages in England, around the 12th century, as a part of rape law. Under these laws, it was a crime to violate a young woman, not of age, with or without her consent. This age was 12 years, at which a girl was considered to be mature enough to give her consent. The offender was punished for this crime but the punishments were more severe in cases where the girl was under the age of 10 years. Similar laws were present everywhere around the world. For instance, in the USA, each of its states formulated their own laws on this matter and the age of consent ranged somewhere between 10-12 years.

Moreover, the emergence of feminism greatly shaped the evolution of age of consent. Until the end of the 19th century, these laws remained mostly unchanged. Feminists sought to raise this age of consent and their efforts were successful, with the age of consent being increased in many countries around the world. This movement pushed England to raise the age of consent to 16 years and a similar change was seen in America. By the time of the second wave of feminism in the 1970s, the need for these laws to protect young women from possible coercive relationships was widely accepted. However, there was also a fresh call to make sure that the laws did not unreasonably restrict a young woman’s sexual autonomy. Furthermore, there was an added pressure to make the laws gender-neutral by clarifying that they applied to all youths, irrespective of their gender. As a result, the USA’s age of consent laws expanded to include both boys and girls.

Age of consent in different states

The age of consent differs from country to country. Every country has its own separate laws relating to consent. In the United States of America, the age of consent changes across its different states, but usually ranges from 16-18 years. Majority of states have the age of consent as 16 years. The presence of varying laws and statutes dealing with the age of consent in different jurisdictions may cause confusion. Even the violation of these laws has consequences of varying degrees of seriousness depending on the location. However, they are all designed to safeguard children from sexual exploitation and stop adults from engaging in sexual activities with minors.

Out of the 50 American states, 31 states have the age of consent set at 16 years, 8 of them have it at 17 years, and the remaining 11 have it at 18 years. Overall only 26 states have Romeo and Juliet laws (also known as close-in-age exceptions), which allow sexual activity between underage individuals if they are close enough in age.

Maximum age difference

Apart from setting an age of consent, several states have laws governing the maximum age difference permissible between individuals engaging in sexual activities. These laws aspire to prevent adults from exploiting and taking advantage of young people who might not have the emotional maturity to understand the consequences of their actions. The maximum age difference rules ordinarily set down the highest number of years that can exist between the two partners. For example, Arizona has a maximum age difference of 2 years while in Utah it is as high as 10 years.

The table below lists the different states of America with their age of consent and maximum age differences.

Sr. No	State Name	Age of Consent	Has Romeo-Juliet Laws/ Close-in-age exemption	Maximum Age Difference	Minimum age of defendant, in order to prosecute.
1	Alabama	16	Yes	2	16
2	Alaska	16	Yes	3	N/A
3	Arizona	18	Yes	2	N/A
4	Arkansas	16	Yes	3	20
5	California	18	No	–	N/A
6	Colorado	17	Yes	4	N/A
7	Connecticut	16	Yes	2	N/A
8	Delaware	18	Yes	–	N/A
9	District of Columbia	16	Yes	4	N/A
10	Florida	18	Yes	–	24 (if victim is 16)
11	Georgia	16	No	–	N/A
12	Hawaii	16	Yes	5	N/A
13	Idaho	18	No	–	N/A
14	Illinois	17	No	–	N/A
15	Indiana	16	Yes	–	18 (if victim is 14)
16	Iowa	16	Yes	4	N/A
17	Kansas	16	No	–	N/A
18	Kentucky	16	No	–	N/A
19	Louisiana	17	No	3	N/A
20	Maine	16	Yes	5	N/A
21	Maryland	16	No	4	N/A
22	Massachusetts	16	No	–	N/A
23	Michigan	16	No	–	N/A
24	Minnesota	16	No	3	N/A
25	Mississippi	16	Yes	2	N/A
26	Missouri	17	No	–	21 (if victim is 14)
27	Montana	16	No	–	N/A
28	Nebraska	16	No	–	19
29	Nevada	16	No	–	18
30	New Hampshire	16	Yes	–	N/A
31	New Jersey	16	Yes	4	N/A
32	New Mexico	17	Yes	4	18 (if victim is 13)
33	New York	17	No	–	N/A
34	North Carolina	16	Yes	4	12
35	North Dakota	18	No	–	18
36	Ohio	16	Yes	–	18
37	Oklahoma	16	Yes	–	18 (if victim is >14)
38	Oregon	18	No	3	N/A
39	Pennsylvania	16	Yes	4	N/A
40	Rhode Island	16	Yes	–	18
41	South Carolina	16	No	–	N/A
42	South Dakota	16	No	3	N/A
43	Tennessee	18	Yes	4	N/A
44	Texas	17	No	3	N/A
45	Utah	18	Yes	10	N/A
46	Vermont	16	Yes	–	16
47	Virginia	18	Yes	–	18
48	Washington	16	No	2	N/A
49	West Virginia	16	No	4	16, 14(if victim is <11)
50	Wisconsin	18	No	–	N/A
51	Wyoming	17	No	4	N/A

Laws regarding the age of consent : statutory rape

Several states do not actually use the term statutory rape in their statutes, rather, they mention a variety of offences involving consensual sexual activity among minors. The ages of the victim and offender, along with the nature of the sexual activity, determine which offence the crime falls under. Statutory rape laws are distinct from most rape laws, where force plays a key role in the crime. Statutory rape laws are formulated on the belief that every sexual act involving a person under a specific age prescribed by law (age of consent) is a crime, irrespective of whether both parties consent to such acts. It prohibits all sexual acts with a minor, who is considered to be incapable of granting informed consent to such sexual activity. It is a crime when an individual engages in any form of consensual or non-consensual sexual conduct with a minor. Under this code, consent is immaterial. Most of these cases involve a male and a female, where the man is charged with the offence. Even if both parties are under the age of consent, they can be charged under statutory rape laws.

Statutory rape in most places is a serious crime, and individuals prosecuted under it are charged with considerable jail time (ranging anywhere between 1-15 years) in addition to large fines up to $100,000 and more. A common misbelief regarding statutory rape is that different state laws specify a single age at which a person can give consent to any form of sexual conduct. However, there are only 12 states that have a single age of consent, under which a person cannot consent to sex in any circumstance. In the remaining states, various other elements are involved, such as the close-in-age exemption, the minimum age of the defendant, and the minimum age of the victim. The above table can be referred to for statutory rape laws in different Amercian states.

Exception in marriage

The age of consent has a major loophole, i.e., child marriage. The United States of America has no federal law banning child marriage, and only ten out of 50 states have passed laws forbidding child marriage under their jurisdiction. These states include Delaware, New Jersey, Pennsylvania, Minnesota, Rhode Island, Massachusetts, New York, Vermont, Connecticut and Michigan. The remaining 40 states continue to allow marriages between, or with minors, including those below the age of consent. Out of these 40 states, seven of them don’t even have a minimum age cap on marriage, as long as they have the permission of the parent or guardian.

This is a key exception to the age of consent law and is subject to wide misuse. The bulk of these marriages take place between an adult man and a girl under the age of 18. In most American states, to this day, marriage is a valid legal defence to statutory rape. It used to be permitted as a defence under federal law but was struck down by a recent amendment. This exception allows an adult to engage in sexual activity with a minor if they are married. It acts as a ‘get out of jail free card’ for sexual predators or rapists. There are countless stories of underage marriages taking place involving abuse. Young girls are forced to marry their adult abuser, or they are pressured by their parents to get married if they are pregnant.

Romeo and Juliet laws

Romeo and Juliet laws, also known as close-in-age exemptions, are another exemption to the age of consent laws. Some states in the U.S.A. have these Romeo and Juliet laws which do not punish sexual activity between individuals if there is a close age gap between them, typically around 3-4 years (varies according to jurisdiction). These laws get rid of legal culpability in cases where both partners consent and are close in age. These laws intend to protect young lovers by permitting them to consent to each other, without the fear of violating the law but at the same time preserving the stringent restrictions on the age of consent. The law is named after Romeo and Juliet, teenage lovers aged 14 and 16. They were characters in William Shakespeare’s famous play, “Romeo and Juliet”, who were deeply in love with each other. In the present day, their relationship would be found to violate age of consent laws.

I provide these close-in-age exemptions with the sole purpose of safeguarding young people from the somewhat drastic repercussions of violating age of consent laws. Consensual sex with a person’s boyfriend or girlfriend could have the potential of labelling them as sex offenders for the rest of their life. Thus, such cases are provided legal protection and exemption under these laws. For example, if the age of consent in an area is set at 17 years with the close-in-age exemption being four years, sexual activity between a 35-year-old man and a 15-year-old girl is considered illegal but the same girl may engage in consensual sexual activity with a partner up to the age of 19. These laws recognise that consensual sexual activity between minors close in age does not exhibit the same degree of threat to minors as sexual activity between an adult and an underage individual. The permitted age gap under this law varies from state to state but the overall concept remains the same, they provide exemptions for minors, close in age, who engage in consensual sexual activity from being prosecuted for statutory rape. However, these laws do not grant protection for other offences like sexual assault and sexual abuse. Not every state in America has this exemption.

Age of consent in contracts

As per the laws in the United States of America, the age of majority is the age at which a child is considered to have become an adult. Essentially, it is the legal contract age. Contracts are legally enforceable, binding agreements between two parties who are competent to enter into a contract. A person below the age of majority is considered to be a minor and cannot enter into a valid contract without the consent of a parent or guardian. Minors are assumed to not be mature enough to understand the terms and implications of a contract.

This legal age to contract (age of majority), varies across the different states in America. In the U.S.A., the age of majority is 18 years everywhere except in Alabama and Nebraska where it is 19 years. Depending on the type of contract, there can also be different ages of majority. For example, rental agreements usually require you to be 21 years of age. It is also important to note that even if an individual has reached the legal age to contract, does not mean that there is a valid contract. Competency to contract (age) is only one factor and there are several other essential elements for a contract to be valid.

This age should not be confused with the drinking age, age of consent, voting age, driving age, and marriage age. Depending on the state and federal laws applicable to an area these ages can vary. Individuals cannot access their inheritance until they attain the age of majority.

Minimum age to start a business

Many American states permit a minor to set up their own business, simply because their respective laws do not provide a minimum age requirement to start a business. However, this is not the case in every state, and some states prescribe an age and explicitly prohibit an individual who is under that age from legally owning a business. States like Minnesota, Colorado, and Illinois are some of those states that explicitly forbid minors from starting their own businesses. As per the laws in these places, a person must be over the age of 18 to legally form a Limited Liability Company (LLC). In such states, the parents or guardians of the minor can legally own or set up the business on their behalf until the child attains the age of majority.

States like Nevada, Delaware, Texas, Montana, California, and Wyoming allow minors to start and own businesses, subject to certain restrictions. Minors are not allowed to obtain tobacco and liquor licences and may be unable to enter into contracts with suppliers, employees, and other parties (depending on the specific federal or state laws applicable in that area). Since the laws of these states do not prescribe a minimum age, by theory, if a thirteen-year-old wanted to start a business, he/she could do so. Essentially, what that means is that even though these states allow minors to form businesses, they do not have the same abilities as adults (those individuals above the age of majority). In such situations, an adult signs or enters into contracts on behalf of the child. To put it simply, businesses can be formed and started by any person at any age unless the law of that area specifically prohibits it.

Age of criminal responsibility under criminal law

The minimum age of criminal liability is the age boundary at which a child is considered to be an adult and is responsible under criminal law. To put it simply, it is the youngest age at which a child can be held criminally responsible for an offence. It determines whether a young person in breach or violation of the law is tried as an adult or a juvenile. Depending on the specific laws governing the area, the youth may be tried under the jurisdiction of a criminal court, a juvenile court, or a municipal court. This age not only varies across the different countries of the world but also throughout the various states of America.

Internationally, the minimum age for prosecuting young children for crimes is set at 14 years old internationally as per the standards of the United Nations Convention on the Rights of a Child (CRC). According to the Child Rights International Network, almost every country in the world forbids prosecuting a child under the age of seven years. However, interestingly, 24 U.S. states do not have a minimum age to prosecute children, i.e., a minimum age of criminal responsibility. In theory, this means that a child at any age can be sentenced to criminal penalties and is punished as an adult. It is deeply concerning that several states in the country have yet to set a base age limit at which a child can be tried in a juvenile court. This lack of a fundamental baseline age has resulted in numerous instances of ill-treatment of young children.

Out of the remaining (26) states that do prescribe a minimum age of criminal responsibility, the boundary is set at younger ages. North Carolina recently (2019) passed a bill to increase the prescribed age from six years to eight years. In Wisconsin, the minimum age of criminal responsibility is 10 years, and ten-year-olds can not only be prosecuted but are also automatically considered to be adults while they are tried for some crimes. The age is set at 13 years In Maryland and New Hampshire, and at 12 years in at least five states including Delaware and New York. The age is set at 10 years in 16 of the 26 states, including Arizona, Colorado, Kansas, Arkansas, and Connecticut . In Nebraska, it is 11 and in Washington, it is 8 years.

Conclusion

No universally accepted international standard exists to determine the appropriate age of consent. As a result, the age of consent in the United States of America is a consequence of societal beliefs, standards, cultural factors, evolving views and the history of the place. This age can neither be too low nor too stringent. It must avoid the over-criminalisation of teenage relationships and behaviour but also be able to protect children from exploitative relationships. The laws must aim to maintain a perfect balance, by fulfilling their duty to safeguard the interest of minors, while also respecting their sexual autonomy. Each state has its separate laws and specific variations concerning the age of consent.

Frequently Asked Questions (FAQs)

Is it illegal to date a minor?

No, as a general rule, it is not illegal to date a minor. However, if there is any sexual activity involved in the relationship, it can be considered illegal, depending on the laws in place in that area. If the minor falls under the age of consent, it may be an offence of statutory rape or any other type of sexual offence. Moreover, even if the minor gives consent, it is still a punishable offence. Some states even have laws that forbid adults from being in romantic relationships with a person under the age of consent, regardless of whether any sexual activity is involved.

What are the legal consequences of violating age of consent laws?

The legal consequences of violating age of consent laws are extremely serious and include imprisonment, fines, probation, a permanent criminal record, and registration as a sex offender. It is advised to consult a lawyer regarding any questions concerning the legality of relationships with minors.

Does the age of consent remain the same for both males and females?

In the United States of America, the age of consent stays unchanged for both males and females, it is a gender-neutral law. Nevertheless, in some areas across the globe, males and females have completely different ages of consent. Moreover, some places have different ages of consent for same-sex activities between women and same-sex activities between men. However, in the majority of countries, the age of consent remains the same for all.

References

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