Justice Gaziano, of the Massachusetts Supreme Judicial Court (“SJC”), makes a proclamation in the first paragraph of that Court’s recent decision in Commonwealth v. Wilbur W. that may be startling to many members of the public, especially teenagers: “When two minors have consensual sexual relations, both of whom are members of the class the statute [criminalizing statutory rape] is designed to protect [i.e. they are under 16], each has committed a statutory rape.” What Justice Gaziano does not mention is that the crime of statutory rape carries a penalty of up to life in prison, as well as lifelong sex offender registration. This reality raises significant questions about how we as a society handle sex between juveniles and when the criminal law is an appropriate—or humane—tool. The SJC largely dodged those questions in Wilbur W., but they are bound to recur, probably sooner rather than later, in the courts of the Commonwealth. In the meantime, juveniles remain subject to the same criminal liability as adults for having sex with anyone under 16—even if the sex is consensual, and regardless of how their age compares to that of their partner.
Wilbur W. was the prosecution of a 12-year-old for sexual activity with an 8-year-old. The 8-year-old testified at trial that he had participated in the activity at the instigation of the older child and that he felt coerced and afraid, and that the activity was painful; the 12-year-old claimed instead that the experimentation was consensual. The 12-year-old was charged, and the jury in his case was instructed, as to the offense of rape of a child with force (including constructive force), and the lesser included offense of statutory rape. The jury found him delinquent only on the lesser included charge, as to which they had to find only that he had engaged in the activity with a child under 16; both his intent and whether the younger boy consented were irrelevant to their finding.
The defendant in Wilbur W. raised three constitutional claims on appeal, all focused on the statute as applied to his case. He argued in turn that the application of the statute violated due process because there was no rational basis for the prosecution; that the statute was void for vagueness as applied to him; and that the selective enforcement of the statute against him, and not the other juvenile involved, violated equal protection. The SJC rejected each in turn, relying heavily on the specific facts of the case: that the defendant was 4 years older than the other boy, and that the other boy was afraid and coerced to participate. It’s troubling that the court took this path, given that the jury’s verdict suggested that it may have in fact been convinced by the 12-year-old’s argument that the younger child did consent to the activity. (At one point the SJC’s decision states that the “jury were warranted in finding that the victim . . . complied . . . because he was frightened and did not want to risk disobeying the juvenile’s instructions”—even though the jury’s decision suggests that it did not find the victim was coerced.)
While the defendant in Wilbur W. was unsuccessful in his challenge, the decision suggests that if faced with circumstances in which the parties’ ages are closer, the alleged victim older, and consent more clearly established, the court might reach a different result on at least some of the as-applied constitutional appeals that it rejected here. It’s also worth noting that in another relatively recent decision, Commonwealth v. Bernardo B., the SJC held that a male juvenile defendant was entitled to discovery to further investigate a selective enforcement claim alleging that he was being prosecuted, while the three girls he had engaged in sexual activity with were not, as a result of his gender. Wilbur W. certainly does not foreclose raising these constitutional issues on a different record.
In a concurring opinion, Chief Justice Gants outlines one possible way to protect children while avoiding the risk of discriminatory or unnecessary prosecution of other children. He notes that the statute actually punishes anyone who “unlawfully has sexual intercourse or unnatural sexual intercourse, and abuses a child under [sixteen] years of age.” (emphasis added). Case law in Massachusetts has never required proof of abuse beyond the sexual intercourse itself, but Justice Gants suggests that while sexual intercourse between a defendant over 16 and a victim under 16 can be understood to be inherently abusive, the same is not true where both participants are under 16. Therefore, he argues, the courts should “require a finding of abuse as a separate and distinct element of the crime,” made by a jury beyond a reasonable doubt, in those circumstances. It appears, however, that he is alone on the court in that view.
The Massachusetts legislature recently passed a sweeping criminal justice reform package, and it was signed into law on April 13, 2018. Although earlier versions of the act would have included a “Romeo and Juliet” provision, decriminalizing sex where the parties are sufficiently close in age, that provision was not included in the final bill, which changed nothing about the way that statutory rape is defined in Massachusetts. We will continue to watch developments both in the legislature and the court. But as statistics cited at length in Justice Gants’ concurrence make clear, consensual sexual activity between children under 16 is common. When it comes to actually protecting children, treating both partners to a consensual interaction as criminals—as Justice Gaziano’s opinion makes clear prosecutors are currently free to do—really isn’t good enough.