Introduction

Laws against child sexual abuse differ from one country to another. Laws regarding children weigh on the basis of various definitions, one being who a child is. or What constitutes child abuse? Most countries around the world answer these questions by first understanding the age of consent, the same also differs from country to country. In some countries, the age of consent is sixteen while in some it is either eighteen or even twenty – one. What does the age of consent mean? The age of consent is generally regarded as the age at which one is legally competent to give consent, especially to marriage or to sexual intercourse according to Merriam-Webster’s definition.[1] Marriage and sexual conduct, are both considered to be illegal if done with an underage person and often attract criminal prosecution. In this article, we will learn and discuss more about various laws regarding child abuse in the United States and other countries as well as international legal instruments tackling the same. We will also discuss basic definitions like who is a minor, and what is child abuse. What is statutory rape?

Survey On Statutory Rape: “At the national level, the incidence of statutory rape is relatively unknown. The FBI’s Uniform Crime Reporting Program (UCR) maintains national data on forcible rape and other sex offences but does not isolate statutory rape crimes in its annual Crime in the United States (CIUS) report. In contrast to the CIUS report, the FBI’s National Incident-Based Reporting System (NIBRS) captures a broad range of information on statutory rape incidents reported to participating law enforcement agencies throughout the country. According, to the 1997 National Longitudinal Survey of Youth, 27% of youth ages 14–17 was sexually active during the survey year. Findings of the Survey include:

◆ In 2000, there was 1 statutory rape for every 3 forcible rapes involving a juvenile victim reported to law enforcement

◆ Most (95%) statutory rape victims were female.

◆ Regardless of victim gender, almost 3 of every 5 victims of statutory rape were age 14 or 15, with relatively equal proportions in each of these ages.

◆ More than 99% of the offenders of female statutory rape victims were male.

◆ Of all offenders of male statutory rape victims, 94% were female.

◆ Of all offenders of female statutory rape victims, 18% were younger than age 18.

◆ Of all offenders of male statutory rape victims, 70% were age 21 and older, while 45% of offenders of female statutory rape victims were 21 and older.

◆ The median age difference between female offenders and their male statutory rape victims was 9 years old. The median age difference between male offenders and their female statutory rape victims was 6 years.

◆ Three of every 10 statutory rape offenders were boyfriends or girlfriends and 6 in 10 were acquaintances.

◆ An arrest occurred in 42% of statutory rape incidents with the probability of arrest declining as victim age increased.”[2]

What is statutory rape? And How is it distinguished from Child Abuse?

In common law jurisdictions, statutory rape is nonforcible sexual activity in which one of the individuals is below the age of consent (the age required to legally consent to the behaviour).[3] Although it usually refers to adults engaging in sexual contact with minors under the age of consent, it is a generic term, and very few jurisdictions use the actual term statutory rape in the language of statutes.[4] The difference between rape and statutory rape is that any kind of force or threat is usually not present, both parties are consenting parties even though a minor’s consent is not taken into consideration. This will apply to someone who is disabled physically or mentally as well, one might agree but do they understand the consequences? Let us try to understand and learn in-depth about this aspect. Different jurisdictions use many different statutory terms for the crime, such as sexual assault, rape of a child, corruption of a minor, unlawful sex with a minor,[5] carnal knowledge of a minor, sexual battery.[6]

The terms child sexual abuse or child molestation may also be used, but statutory rape generally refers to sex between an adult and a minor past the age of puberty, and may therefore be distinguished from child sexual abuse.[7] Sexual relations with a prepubescent child are typically treated as a more serious crime.[8] In the United States consensual sex is very common and as such, at least fifty percent of American children have had sexual intercourse before the mere age of sixteen. However, it is clear that most incidents are not prosecuted and do not lead to arrests and convictions.[9] Historically, a man could defend himself against statutory rape charges by proving that his victim was already sexually experienced prior to their encounter (and thus not subject to being corrupted by the defendant).[10] A requirement that the victim be “of previously chaste character” remained in effect in some U.S. states until as late as the 1990s.[11]

CASE LAWS:

1. In the case of, County of San Luis Obispo v. Nathaniel J., held that Victims have rights. Here, the victim also has responsibilities. A 34-year-old woman seduces a 15-year-old boy and becomes pregnant. She gives birth to a daughter and thereafter applies for Aid to Families with Dependent Children. Is the child’s father obligated to pay child support even though he is a victim of statutory rape? (Pen. Code, § 261.5, subd. (d).) We conclude he is liable for child support.”[12] The victim here was only fifteen years old and also stated that “it was a mutually agreeable act”. The court also ruled that the victim will provide child support once he reaches the age of majority.
2. In the case of Lawrence Vs. Texas,[13] is a landmark decision of the S. Supreme Court in which the Court ruled[14] that sanctions including any form of criminal punishment to all forms of private, consensual non-procreative adult sexual activities between two individuals (commonly referred to as sodomy laws) are unconstitutional.[15] [16] The Court reaffirmed the concept of a “right to privacy” that earlier cases had found the U.S. Constitution provides, even though it is not explicitly enumerated.[17] It based its ruling on the notions of personal autonomy to define one’s relationships and of American traditions of non-interference with any or all forms of private sexual activities between consenting adults.[18]

Legislation in Different Countries & States

1. Austria: “The Federal Constitutional Act on the Rights of Children 2011 contains 8 articles defining the rights of the child with Articles 1 and 5 guaranteeing all children the right to protection and a non-violent upbringing. Article 1 affords every child the right to protection and care that is necessary for his/her well-being, development and in consideration of his/her own best interest. Article 5 explicitly states that every child has the right to a non-violent upbringing, prohibiting corporal punishment, the infliction of mental suffering, sexual abuse and other abuses and confirming that every child has the right to protection from economic and sexual exploitation. The second paragraph of Article 5 provides that every child who is a victim of violence or exploitation has a right to adequate compensation and rehabilitation.”[19]
2. Ireland: “There is a range of constitutional and statutory provisions that prohibit violence against children in Ireland, including those relating to assault, cruelty and endangerment. The Children First Act 2015 was passed by the Irish parliament on 11 November 2015 and came into effect on 11 December 2015 to afford more comprehensive provisions for the care and protection of children from harm by requiring that providers of services to children prepare child safeguarding statements and formalizing reporting procedures to the Child and Family Agency.  Harm is explicitly defined in this Act as “(a) assault, ill-treatment or neglect of the child in a manner that seriously affects or is likely to seriously affect the child’s health, development or welfare, or (b) sexual abuse of the child, whether caused by a single act, omission or circumstance or a series or combination of acts, omissions or circumstances.” Section 28 of the Children First Act repeals the common law defence of “reasonable chastisement” by way of an amendment to the Non-Fatal Offences Against the Person Act 1997, thereby achieving prohibition of corporal punishment in the home.”[20]
3. LAO PDR: “Lao PDR Law on Preventing and Combating Violence against Women and Children (No. 56/NA Vientiane Capital City, 2015) aims to eliminate all forms of violence against women and children including any behavior that may result in danger, harm, physical, psychological, sexual, or economic suffering [or damage to] the property of women and children by defining the principles, rules, and measures in place for preventing violence as well as provisions of assistance for victims of violence, in order to protect and uphold the rights, dignity and interests of women and children, with a view towards gender equality, peace, justice and public order.”[21]
4. India: The Protection of Children Against Sexual Offences Act, 2012 (POCSO) regarding child sexual abuse has been passed by both the houses of the Indian Parliament in May 2012.[22] The Act came into force from 14 November 2012.[23]
5. Arizona: “Arizona revised statutedefines child abuse as inflicting or allowing physical abuse, neglect, sexual abuse, sexual exploitation, emotional or mental injury, or abandonment of a child under the age of 18. Arizona also has a department to handle reports of child abuse and neglect. Here, reporters are encouraged to report instances of abuse or make referrals to law enforcement agencies.”[24]
6. California: “California statutedefines child abuse as inflicting by nonaccidental means physical abuse, neglect, sexual abuse, or sexual exploitation of a child under the age of 18. The California Penal Code also names professionals as mandatory reporters who must report abuse and neglect cases. A subsection in the law discusses penalties and fines for failure to report cases of child abuse.”[25]

“In the United States, concern for child welfare increased during the Enlightenment period of the 18th century, raising awareness, providing services, and offering protective measures to children. Later in the mid-1800s, child welfare systems expanded, but they were “church-based rather than government-based” (Clark & Clark, 2007, p. x). It was not until 1874 that the first organization in the U.S. to focus on child maltreatment was formed; the New York Society for the Prevention of Cruelty to Children was a steppingstone to improve services and policies regarding child maltreatment. During the late 1940s, technological advancements led to increased findings of child maltreatment (Pfohl, 1977). With the use of radiological technology, doctors were able to study old bone injuries in children to determine if they were properly treated and healed (Kempe, Silverman, Steele, Droegemueller, & Silver, 1962).”[26]

CONCLUSION

What is Child Abuse? Child abuse is defined as the mistreatment of a child which would include physical, sexual, or emotional abuse. The problem of child abuse is worldwide and is considered a global threat. A huge social problem that still needs tackling. There are six major forms of child abuse and maltreatment: physical abuse, sexual abuse, emotional abuse, physical neglect, educational neglect, and emotional neglect (Clark & Clark, 2007, p. xiii). There are various cases where abuse leads to death as well. The story of an eight year old Gabriel Fernandez is a classic example. See What did she do to her kid? The story of 8-year-old Gabriel Fernandez – Layman Litigation

We need to tackle child abuse not only on a national level but also on international, regional and local levels. Educate our children about good and bad touch, ensure and provide them with further information on what they can or should do if they ever happen to be in one. The majority of children out there do not speak up about their trauma, either because they do not know what is happening to them is wrong or they are scared to trust an adult again. Child abuse is a growing pandemic. We as a society should also spread awareness about the same. Invest in child abuse research, enact laws that are children friendly and ensure maximum punishment to perpetrators.

[1] Age of consent Definition & Meaning - Merriam-Webster

[2] J Robert Lores, U.S. Department of Justice, August 2005, Bulletein, Retrieved from: 01-StatutoryRape Bulletin.qxd (ojp.gov)

[3] Carmen M. Cusack (2015). Laws Relating to Sex, Pregnancy, and Infancy: Issues in Criminal Justice. Springer. p. 10. ISBN 978-1137505194. Retrieved 13 November 2017. Voluntary sexual intercourse with a post-pubescent minor who is younger than the legal age of consent is described as statutory rape. ... In most states, age of consent is delimited between 16 years old and 18 years old. ... In almost every jurisdiction, prepubescent children may not engage in any sexual contact. ... Engaging in sexual contact with a prepubescent child is a serious criminal offense and a felony.

[4] "State Legislators' Handbook for Statutory Rape Issues" (PDF). U.S. Department of Justice – Office for Victims of Crime. Archived from the original (PDF) on 13 March 2008. Retrieved 24 March 2008.

[5] Cieply, Michael (11 October 2009). "In Polanski Case, '70s Culture Collides With Today". The New York Times.

[6] "794.011 Sexual battery". Official Internet Site of The Florida Legislature. The Florida Legislature. Retrieved 19 May 2013.

[7] Carmen M. Cusack (2015). Laws Relating to Sex, Pregnancy, and Infancy: Issues in Criminal Justice. Springer. p. 10. ISBN 978-1137505194. Retrieved 13 November 2017. 

[8] Fradella, Henry F.; Sumner, Jennifer M. (2016). Sex, Sexuality, Law, and (In)justice. Routledge. p. 375. ISBN 978-1317528906. Retrieved 13 November 2017. 

[9] "No Child Left Behind Bars: The Need To Combat Cruel and Unusual Punishment of State Statutory Rape Laws | Brooklyn Law School Practicum". practicum.brooklaw.edu. Archived from the original on 29 October 2015

[10] "The pros and cons of statutory rape laws". Cable News Network. 13 February 2004.

[11] "C. Cocca, "Jailbait: The politics of statutory rape laws in the United States." SUNY Press (2004)" (PDF). Archived from the original (PDF) on 19 September 2015.

[12] County of San Luis Obispo v. Nathaniel J. (1996) :: :: California Court of Appeal Decisions :: California Case Law :: California Law :: US Law :: Justia

[13] 539 U.S. 558 (2003).

[14] The judgment does not recognize a constitutional right to certain sexual activities such as prostitution, bestiality, and incest, due to other metrics, such as the perceived inherent harm that these activities carry.

[15] Lawrence v. Texas, 539 U.S. 558 (2003)

[16] Chemerinsky, Erwin (2015). Constitutional Law: Principles and Policies (5th ed.). New York: Wolters Kluwer. ISBN 978-1-4548-4947-6.

[17] Chemerinsky (2015), §10.4, p. 882.

[18] Nowak, John E.; Rotunda, Ronald D. (2012). Treatise on Constitutional Law: Substance and Procedure (5th ed.). Eagan, Minnesota: West Thomson/Reuters. OCLC 798148265.

[19] Legal ban on violence against children | UN Special Representative of the Secretary-General on Violence Against Children

[20] Ibid.

[21] Id 18.

[22] "Parliament passes bill to protect children from sexual abuse". NDTV. May 22, 2012.

[23] "Tough law on sexual offences against children comes into force". The Hindu. 15 November 2012.

[24] Child Abuse Laws State-by-State - FindLaw

[25] Ibid.

[26] Legal and policy issues from the United States and internationally about mandatory reporting of child abuse - ScienceDirect