Issue 18 - statutory rape

Issue 18 - statutory rape - Are Statutory Rape Laws...

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Unformatted text preview: Are Statutory Rape Laws Effective at Protecting Minors? YES: Sherry P. Col‘b, from "The Pros and Cons of Statutory Rape Laws,” CNNcom (February ii, 2004) N0: Marc "l‘unzi, {rom "Curbside Consultation: Isn’t This Statutory Rape?” American Family Physician (May 1, 2002) ISSUE SUMMARY YES: Sherry F. Coll), columnist and law professor, uses a case study involving a statutory rape case to raise concerns about Whether rape and assault cases would be prosecuted sufficiently without statutory rape laws. Although not perfect, statutory rape iaws can be assets in such rape cases as when the older partner denies the rape occurred or denies responsibility for a resetting pregnancy or infection. N0: Marc Tunzi, a tarniiy physician, believes that statutory rape laws are ineffective because people can get around them too easily. These laws, he argues, require that an otherwise healthy relationship between two people of different ages be criminaiized, solely because there is some kind of sexuai activity involved. As a result, medical and other licensed professionals do not want to break up these rela— tionships that, in their professional opinion, are not problematic solely because of the age difference between the two partners. The term “rape” refers to forced sexual contact between two people that usuaily involves the insertion of a penis or inanimate object into another per— son’s vagina, anus, or mouth. Rape is against the law in every state in the United States, and usually results in heavy penalties on the rapist. Statutory rapelaws say that sexual behavior between two peoplewhen there is a ’sigoificarit age difference is against the law, even if there was no __force ioyolved. These laws, which Were originally created to protect adoies— cent girls from predatory adult males, are (lifterth in every state. The age at which a person is considered iegally able to engage in sexual behavior, calied the "age of consent,” is different in every state, too. Most state laws are no longer restricted to a female Victim and male perpetrator; they now apply to couples of any gender combination, inciuding samewsex relationships. Most 275 :iia has car ‘ ticks".- oi' former sciirioltouji'uu' Mars iii}. receniiy. iitc inc nit ultra was (‘L'lilX’iCis‘iIl oi stalulorf.’ rage for having: a sexual iciruu'ueais, .u: a: reiarionsl'ugi saith an adolescent studciit‘. iii-cu though the two ciaimcd Nice; {and inaiiiéaiu rum“; that the}; wcre in, lose. the tat-y said that. this relationship was iilcggit. and K-is, i..<.—-tournczui went to prison. l-‘copic who support sl‘i-ittiiory reign: iaws argue that in my reiaiionslup whore iiiere is a sigoiiicani age difference, the older of the two peoplc has an inlicreut power advantage os‘er tlic younger. liven if the younger partner agrces to have sex, statutory rape law supportcrs argue. that pcrson was not old enough to make a well tl‘iougiit»<mt dccision-——and may have been coerced emotionaily, even if not physically. What an oldcr partner has can be very seductivc—upmycr, money. a job, a car, and more. These tangible things, they argue, play a powerful roie in a youugcr person’s decision-niaking process. In addition, it is quite fiat- tering for a llyearvold to have a 24~year~old person interested in bet or him. One wonders, however, what a 24—yearuolcl could possibly have in common, deveiopmentally and exponentially, with a lsi—yeapoid. Statutory rape laws are designed, in part, to keep these types of unequai relationships from becoming sexual in nature. Others disagree. saying that statutory rape laws are ineffective, iudgmcir tal, patronizing, and sexist. Opponents to statutory rape iaws argue that acl'oias'é' cents and teenagers are able to Inaire their own decisions about their sexual behaviors, even if their partner is older. (Tipponcnts maintain. that rciationships are about much more than sexual behavior, and that if a reiati-onship is other wise iieaithy and loving, penalizing the couple for their age difference does more to ruin. lives than save them. There are young men, they argue, who have gone to iaii because the parents of their younger partners learned- that they were having sex, and wanted to punish them. a resui’r, these young men have a jail sentence on their records forever, solely because of an age difference. i-V’hat do you think about statutory rape iaws? Do they protect, or do they discriminate? Do you third: that an adult has more power than a teen ager iust because sbc or he is oider? If so, is this power strong enough that the adolescent or teen could not say whether she or he wanted to have sex with that adult? What are some of the inherent problems with a significant age difference in a relationship? What are some of the positive things that can happen from two people of different ages having a relationship? In the foilowing selections, Sherry F. Colb takes the side of the victim, argu- ing that statutory rape laws, while inherently imperfect, do much more good than harm. For the number of young adolescents who claim rhey were forced to have sex {particularly by a known assailant), when the situation is often a simple matter of believing one person over the other, statutory rape iaws give young rape victims voice. Dr. Marc Tunai raises the concern that other health profesw sionais have, how statutory rape laws affect a health professionals guarantee of confidentiality and informed consent to their patients. These laws, he argues, are r‘iiscrirninatory against young men {since these cases most commonly involve an older mate. partner and a younger female partner), condescending to young women. and sometimes culturaiiy disrespectful, if there is a value that early sec rial rciationshiys are agiprr'ipriate within the coupio’s particular cultural group. Sherry F. Coll) The Pros and Cons of Statutory Rape Laws A 10 Yea-r Sentence for Marcus Dwayne Dixon iteccutly, the Georgia Supreme Court heard arguments in Dixon V. State. The case invoives the coovicrion of Marcus Dwayne Dixon for statutory rape and aggravated child molestation. (Dixon was acouitted of rape and several other charges.) Statutory rape is sex between an aduit and a minor, While aggravated chiid molestation also involves an injury. At the time of his offense, Dixon was an 'ES-yearwold high school football player who had sex with a lSMyear-old female classmate. The aggravated child moiestation statute mandates a ten year minimum sentence, and Dixon challenges the harshness of the resuiting penalty. The case has attracted ciaims of racism, because the victim was a White girl and the convict an outstanding Africanfla‘xmerican student with a football scholarship to Vanderbiit. One provocative underlying (though unsuited) question that has con" tributed to the notoriety of this case is Whether the law can legitimately send teenagers to prison for having sex with other teenagers, in the absence of force. Because every stare has a statutory rape law in some form, this case pre— sents a chailengc to a long and continuing tradition of criminai Saws that can fine men for what could be consensuai sex with minors who are close to the age of majority. Such liabiiity is controversial in a number of ways, but it also has some benefits that are often overlooked by critics, thus leaving us with a difficult dilemma that admits of no easy answers. Statutory rape laws have a checkered past. A primary purpose was to guard the virginity or" young maidens against seduction by unscrupulous cads. To give up one’s “Virtue” to a man who was unwilling to pay with his hand in marriage was fooiish and presumptively a product of youthfui, poor judgment. Such laws had more to do with preserving female virginity than with the force and Violence that define rape. One Sign of this is the fact that From CNNcom by Sherry F. Colo, February ii, 206%. Cooyrigh 1: column originaily appearcd on Findcawcom. Reprinted by permiss 3004 by i... Coib. This in of the author. v m 9?,ng can? titsienti hintsell iniaii‘rst si‘étliilzlr‘t' " sé.rl ,. gn'o‘t” Elm? liis t'it‘tétn this already sexually experienced «trim to Elii’éi‘ encounter ignitl :‘i'ios not soitécct to inking; corrtnri‘ed in the justificatloos for Statutory Rape Laws tresgrlie El" =ir unsm-‘ory hceiorilngs. however, some icininists have favored these Mus as well. Progressive women supported such statutes mainly as n'ieasures to lit-lg) combat the sexual abuse of young girls. 'l‘lroutglr a statutory rape charge would not require proof of force or COt'l'w cion, feminists observed. young girls were (and may continue to he) espe- cially vulnerable to being raped by the adults in their lives. lri one study, for example, seventy-four percent of women who had intercourse before age tour- teen and sixty percent of those who had sex before age fifteen report having had a forced sexual experience. in addition, prosecutors attempting to prove rape ir: court have histori- cally faced significant burdens, such as corroboration requirements premised on the corrtplalnirig witness’s presumptive lack of credibility. for many years, legal thinkers like Eighteenth Certttir}; British jurist Sir R'tatthew Hale were convinced that rape "is an accusation easily to be made and lizard to he proved, and harder to he defended by the party accused, thou never so innocent.” "thus, rape law did not provide a reliable or effica— cious vehicle for addressing most sexual violence, and it continues to be of limited utility for acquaintance rapes. . . A For this reason too, feminists may have Viewed statutory rape laws as a godsend. As long as there was sexual intercourse and an under—age victim, the jury could contact. And more importantly, that possibility itself might deter real sexual abuse. is Statutory Rape just Rape Without Proof of One Element? Viewing statutory rape lam-ts as salutary in this way does raise a serious problem, hon-ever. in i’n Re E’Wilfihlp. the Supreme Court required that prosecutors prove every element of a crime beyond a reasonable doubt before a conviction can be. cons?itutionally valid. Removing the force" element of tape and leaving only intercourse and age might seem to amount, from some perspectives, to a gj: tiSLliTliLlllOll that the force element of rape is established, without the prosew cutor’s having to prove it and without the defense even having the option of attitrna-tlvely dispros'ing it. Such a presumption allows for the possibility that a fully consensual sex“ ual encounter will be prosecuted and punished as rape. Some might tinder— standahly believe that this unfairly sublects essentially innocent men to unduly harsh treatment, simply in the name of deterring other, unrelated men from engaging in very different and far more culpable sorts of conduct. Responses to Concerns About i’rosecutirtg Consensual Sex "there are two potential responses to this ctnrcerii. litst, at some level, Wt" might ll:i\-’c doubts grown the competence ole: minor to “consent,” in it mean inglul nu}; to sexual {lt‘l'l\'ll}’. Because oi her youth, the minor might not lolly appreciate the full physical and emotional implications oi" her decision {including the oossihility of offspring for which she will likely lune little means ot support). Of course, than}: adults might also fall into this category, and the dcci~ sion to treat intercourse as distinctive in this way itiay simply represent a revival of the old View that rrmideos should be protected from the corruption of their virtue. Why, otherwise, should girls who are sexually attracted to men he considered the men’s Victims rather than participants in arguably unwise and socially costly but mutually gratifying activity? Another response to the concern about innocent men is more in keeping with feminist concerns. It is that when sexual activity with a minor is truly consensual, the activity is unlikely, at least in modern times, to be prosecuted. ln other words, to the extent that statutory rape is truly" a consensual and therefore Victimless crime in it particular case, it is highly unlikely to generate a criminal action. In the Dixon case, for example, the iS—y‘earuold Victim claimed that the defendant "tracked her down in a classroom ttailer that she was cleaning as part of her duties in an afterwschool job, asked if she was a Virgin, grabbed her arms, unbuttoned her yards and raped her on a table.” This description renw tiers the statutory rape and aggravated child molestation prosecution some— thing other than the state targeting consensual activity for unduly harsh punishtriertt. Though Dixon was acquitted on the rape charge, that fact does not rule out the possibility of sexual assault. It means only that the lury was not con- vinced beyond a reasonable doubt that Dixon forced the iS-yearcld girl to have sex against her “will. The normative question, then, becomes this: is the likelihood that con sensual sex will be punished by imprisonment sufficient to override the bene— fits of statutory rape legislation in facilitating the fight against actual sexual abuse of young adults? Is Convicting in the Absence of Force Unacceptable? One reaction to this question is that even the tittoretical possibility of con- victing in a case of consensual sex is unacceptable and unconstitutional. Prosw ecutors and juries, on this reasoning, should not have the option of finding a persnn guilty in the absence of force, regardless of how unlikely they are to exercise that option. Consensual sex is not criminal, period. 'l‘he assumptions underlying this reaction, however, though understand- able, are at odds with other areas of the criminal law ("ancirlpr Amir l’tiSscss; at or .1 large quantity oi narcotics is regularly treated as a tar snore serious intense than possessimr of a smaller quantity: {fine reason is that the first Vic‘s-red as: possession with the intent to distribute {fill-ll is. drug deal— ing}, while the second is thought to be consistent with personal use. Since legs isiators and t‘ii‘l't"l‘s View dealing as much more l‘tar'itiiul than l 'ierc possessitm. the per‘taltics are: accordingly more. severe. Yet possession of a large quantity of drugs, though highly suggestive, is not necessarily ( tcoinpaoied by an intent to distribute. A person might, for esatt‘rple, possess large aariounts of drugs to avoid having to risk apprehensicm or sources drying out, through repeated purchases. Suppose the drug statute did require proof of intent to distribute. it so, then the ind-go would, on request, have to instruct the jury that the bare fact of quantity alone is enough for a conviction only if the jury draws the inference, beyond a reasonable doubt, that the defendant intended distribution. Without such a finding of intent, the jury would have to acquit. With the statute providing instead that quantity is the sole element, however, intent becomes legally irrelevant. As a result, even the prosecutor and jury who know that the defendant is simply saving up for an anticipated heroin shortage rather than planning to deal drugs, can convict the defendant of the more serious felony without giving rise to any grounds for appeal. By crafting a statute without an "in-tent to distribute” element, in. other words, legislators target distribution without requiring its proof (or even allowing for its disproofi. One might characterize this as an end-run around the constitutional requisite of proving every element of guilt beyond a tea sortable doubt. The same "end run” accusation can be leveled against statutory rape laws. Young girls may represent a substantial portion of rape victims, perhaps because they are vulnerable and have not yet become sufficiently suspicious of the. people around. them. In most cases, moreover, a truly consensual encounter with a minor will probably not be brought to a prosecutor’s attene tion or trigger the prosecutorial will to punish. As with drug possession laws, then, the omission of a requirement that would pose proof problems might generally serve the interests of instice, despite appearances to the contrary. Consensual, Sex With Minors Is Not a Fundamental Right What permits legislatures the discretion to enact such laws, ultimately, is the fact that { like drug possession}, consensual sex with minors is not a constitua tionally protected activity. Even if it is victimless, sex with a mirror may be criminalized and punished severely without resort to a force requirement. indeed, it once was punished routinely in this way: because of ntisogynist concerns about preserving female purity. in modern times, though, when consensual sex among teenagers is genrv eraiiy understood to be both common and profoundly different from the crime oi rape, there might still be a role for statutory rape laws in protecting Young girls from actual rapists, [Enough deterrence and through. the real possibility of retriliutérm. Racism Raised in the Dixon Case A remaining concern is the worry about racism specifically, and discriminaw lion more generally, that arises whenever officials are vested with a large amount of discretion. In Dixon‘s case, one witness testified that the victim said that the sexual intercourse in question was consensual but that she claimed it was rape to avoid the wrath of her violent, racist father. This testiA mony may have given rise to reasonable doubt in the iury on the rape charges. in easin g the burden of pro-of at trial by eliminating the requirement of proving force, then, the law does permit unscrupulous prosecutors and comw plainanrs to bring charges on the basis of what is truly victlmless behavior. One does wonder, though, why a girl would tell a Violent and racist father about a sexual encounter with a black man in the first place, rather than simply keeping the information. from hire, if the encounter were actually consensual. Are Statutory Rape Laws Worth Their Cost? In short, the crime of statutory rape may have originated from repressive and misogynist conceptions of sexuality. Nonetheless, it has (and may always have had) redeeming characteristics, even from an enlightened perspective that takes into account the realities of prosecuting rape and of women’s equality. it makes it easier, for example, to prosecute and thus to deter real rapists who count on jury skepticism about acquaintance rape allegations. Still, reducing burdens of proof relies a great deal on trustmin victims and in prosecutors—that the omitted element will truly be present when cases come to trial. if and when that trust is misplaced, . . . a grave injustice can result. Marc Tunzi E Curbside Consultation: Isn’t This Statutory Rape? Case Scenario Several pregnant teenagers in my practice are underage and have boyfriends older than .18. isn’t this statutory rape? Some of these patients are immigrants who prefer to keep a low profile, not calling the attention of local authorities to themselves or their boyfriends. In most cases, the sex is consensual, and the teens involved don’t particularly care about legal fine points. However, I do, because I have often seen older boyfriends disappear, becoming “deadbeat dads.” if I reported these young then, maybe they would be forced to fulfill their obligations. On the other hand, reporting them might disrupt a poten- tially viable relationship. What is my obligation? Commentary “Isn’t this statutory rape?” our colleague asks. The answer is . . . "maybe." Statu- tory rape laws Were first enacted to protect minors from older predators. States differ considerably in the legal definition of statutory rape. 1' For example, in California, where my practice is located, the age of consent for lawful sexual relationships is 18. If the age difference between the adult and the minor victim is more than three yea-rs, the charge is a felony; if three years or less, it is a misdemeanor. in Hawaii, the age of consent is 14. in other states, the age of con- sent ranges from 15 to 18 years, and many states have associated provisions that specify the level of offense depending on age differences and other factors. Consideration of the legal fine points of statutory rape requires knowl— edge of specific state laws. Most states require that health care providers report iniuries related to criminal violence regardless of the age of the victim, and four states (California, Colorado, Kentucky, and Rhode- island) require health professionals to report domestic violence. While reporting violent iniuries is a well—accepted practice, there continues to be controversy about domestic violence laws (for example, what if the victim doesn’t want the abuse reported?). Most experts, however, believe that unreported domestic violence simply breeds more violence and that it should be reported in most cases. From Ai'fltffil’fflfi family Physician by Marc ‘iunzi, MB, Copyright © 2002 by American Academy of Family Physicians. Reprinted by permission. violence ratherwth' Whether statutory rape is considered violence may depend on the con— sent of the minor involved. From astrictig legal standpoint, mi_1f%9.t$,.ate..uuahle i0 givecsmsem. which is exaCtly the_reason___statuto_ry rape laws exist; ilowever, is are maiorit'y'oi statutory rape cases, minors have given-consent {legally or not‘l'to 'l'iaving'seii, liliii‘titi‘g"a‘ny"'potenttal criminal charge to thatof ' f f .__;..jtfié"more serious...ch‘arge'or child abuse. -- ~' ‘ intact, whether health care professionals are required to report consen— sual statutory tape to authorities really depends on whether the specific state considers it a type of child sexual abuse, which is reportable in all states. Unfortunately, laws on mandatory statutory rape reporting are confusing and often do not appear to be enforced even where they exist?“5 California child abuse law requires health practitioners and other child-related professionals to report statutory rape only when the adult is 21 years or- older and the mirror is younger than 16- years.6 California law also specifically states that “the preg- nancy of a minor does not, in and of itself, constitute a reasonable suspicion of child abuse.”6 Many people believe that enforcing statutory rape laws will decrease the teen pregnancy rate and the number of young families needing public support because of "deadbeat dads.” in fact, part of the 1996 federal welfare reform law specifically directed state and local governments to develop and enforce strict measures against statutory rape for those very reasons. California’s response was a multimillion-dollar vertical prosecution program that allows the same prose- cutor and investigator to remain on a case from beginning to end, While other states have developed their own programs.fig Even though more statutory rape convictions have resulted from these efforts, there is no real evidence that any of the programs have been the effective deterrents that Congress intended. in fact, there are still a lot of 16- and 17-year~ olds on my hospital’s labor and delivery unit. What these laws may have influ- enced is the unwillingness of pregnant teens to seek early prenatal care. While knowledge of statutory rape laws does not appear to prevent adult-mirror rela- tionships from occurring, fear of these laws may keep some young women from seeking prenatal care as a means of protecting their boyfriends from incarcera- tion or deportation. Many professionals Who Work with pregnant adolescents are beginning to collect evidence supporting this concern. 1'4 Another issue for tarnin physicians is that statutory rape laws seem to conflict with the law as it applies to our practice and our understanding of informed consent for adolescents in other situations. Marry teens have the capacity to participate in their own health care decision—making, even regard- ing serious and terminal illnesses. For example, teens are specifically able to consent for contraception, STD- treatroent, and pregnancy care in nearly all cases. The only iiiegality may be actually having sex. The problem is that not all teens and situations are the same. Some teens are much more mature than others of the same age and are as able to consent to sex as an 18— to 20~year—old. At the same time, i think all of us would question a relationship between even the most mature 15-year-old and a 25- or 30—year—old. My own experience is that many teens of 16 and 1? know the emotions and con- sequences of having intercourse just as well as many teens of 18 and i9. in some of my Latina patients, hecoming sexually active at a young age seems culturally acceptahle and, at times, even encouraged within their culture. I, however, discourage it quite strongiy. the question is whether enforcing laws against it is the right approach. What is the right thing for a family physician to do when caring for a patient who has been involved. in statutory rape (as defined by state law)? Not all young men are “deadbeat dads”—-many work and are as responsible and dedicated to their partners and children as oider men with oider partners. Removing a source of financial and emotional support by incarcerating a young man in this situation would probably not help the young woman and her baby; in fact, it: might possibly harm them. If criminal violence has been involved, it must be reported to authori- ties. It domestic violence has been involved and the victim is a minor, I would. report it as a case of chiid abuse even if the state does not have a mandatory domestic violence reporting law. if it is not violence, given the fact that man- datory statutory rape reporting laws are confusing and not necessarily enforced, I heiieve that a physician should report only after carefully consid- ering several factors. How mature is the minor? is he or she in school and responsible in other matters? Does the minor have the capacity to consent to intercourse? ls she or he using contraception? Does the minor understand the consequences of pregnancy? . is the couple’s relationship truly consensual? What is the couple’s age dif- ference? Are they 16 and 36 (an oider predator), or are they 16 and 19? Is the adult partner using physical or other power to take advantage of the minor? if the patient is a pregnant minor, is her adult male partner emotionally and financially responsible and supportive? Is this a potential family in the making, or has the man aiready abandoned the patient? I Family physicians will probably not report most cases to authorities, believing instead that building patient trust and making appropriate referrals to social services and other allied health professionals are the right things to do for the patient and family involved. References 1. Donovan P. (Ian statutory rape laws be effective in preventing adolescent pregnancy? Family Planning Perspectives 1997; 29304, 40. 2. Rodriguez MA, McLoughlin E, Nah G, Campbell jC. Mandatory reporting of domestic violence injuries to the police. JAMA 2003.; 286:580—583. 3. Madison Ail, Feldmale'nter t, Finket M, McAbee GN. Commentary: consen- sual adolescent sexual activity with adult partnersmconflict between confi— dentiality and physician reporting requirements under child abuse laws. Pediatrics 2001; 10.”?(2). . . . 4. Oliveri R. Statutory rape law and enforcement in the wake of welfare reform. Stanford Law Review 2000; 52:463~508. 5. Leiter RA, ed. National survey of state laws. 2d ed. Detroit-Gale, i999; 313%0. 6. California Penal Code section 261.5 (Unlawqu sexual intercourse with a minor} and California Penal Code sections 1i165.1 and 11166 (Child Abuse and Neglect Reporting Act}. POSTSCRIPT Are Statutory Rape Laws Effective at Protecting Minors? The combination of age and sexuality is a sensitive subject in many cultures and societies. in the United States, we have many double standards about the age differ- ence between sexual and romantic partners, and the gender of the people invoived in the relationship. An older man with a much younger woman is much more corn- monplace than an otder woman with a much younger man. An adult male pursu— ing a teenage girl is seen as a predator, while an adult female doing the same is seen as much less threatening. Even in some court cases, iudges have dismissed charges in cases where the older partner was female and the younger one male. it is as if the law does not see an adolescent girl as being able to consent, but that a younger male is simply "coming of age” by being sexual with an older partner. in our mainstream society’s eyes, an adolescent girl has lost something by being sexuat so young; she has shown poor fudgment and has been taken advantage of by this terrible older male. An adolescent male in the same situation with an adult woman, however, is often seen as having gained from the relationshipwrespect and experi- ence. These assumptions are as prejudicial to boys as they are to girls. What about samegender relationships? In the wellmknown piay, "The Vagina Monologues,” a 15—year—old girl talks about her first sexual experience with an adult woman in town. The description is very loving, empowering, and positive. When i heard it read in the theater, the audience made sounds of appreciation and approval. All I could think was, "But isn’t this statutory rape? Would anyone be smihng at this coming—of—age story if the lsmyear-old girl had done the exact same things with a 30-yearwold man?" There are far too many unhealthy and abusive relationships in the United States. People bring different things to their relationships, including different levels of power. In some cases, age brings power with it; in others, money and experience; race or ethnicity; physical abilityw-the examples can continue almost endlessly. T he questions that remain are, in what way can people have healthy, respectful, equal relationships given the inherent power differences that are there? To what extent can and should personal relationships be governed by law? As you read in Issue 11, there used to be laws dictating whether people of different races could marry (and, implicitly, be sexual together). In what ways is it different to govem who can be sex- ual together based on the ages of the people involved? ...
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This note was uploaded on 09/14/2011 for the course HDFS 4533 taught by Professor Staff during the Fall '11 term at Oklahoma State.

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Issue 18 - statutory rape - Are Statutory Rape Laws...

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