Here’s a story from the Denver Post which raises some interesting issues about prosecuting children for having sex with one another:
Utah Supreme Court justices acknowledged Tuesday that they were struggling to wrap their minds around the concept that a 13-year-old girl could be both an offender and a victim for the same act — in this case, having consensual sex with her 12-year-old boyfriend.
The Ogden, Utah, girl was put in this odd position because she was found guilty of violating a state law that prohibits sex with someone under age 14. She also was the victim in the case against her boyfriend, who was found guilty of the same violation by engaging in sexual activity with her. “The only thing that comes close to this is dueling,” said Associate Chief Justice Michael Wilkins, noting that two people who take 20 paces and then shoot could each be considered both victim and offender. And Chief Justice Christine Durham wondered if the state Legislature had intended the “peculiar consequence” that a child would have the simultaneous status of a protected person and an alleged perpetrator under the law.
…State authorities filed delinquency petitions in July 2004, alleging that each had committed sexual abuse of a child, a second-degree felony if committed by an adult. The girl appealed the petition, saying her constitutional right to be treated equally under the law had been violated. Her motion noted that for juveniles who are 16 and 17, having sex with others in their own age group does not qualify as a crime. Juveniles who are 14 or 15 and have sex with peers can be charged with unlawful conduct with a minor, but the law provides for mitigation when the age difference is less than four years, making the offense a misdemeanor. For adolescents under 14, though, there are no exceptions or mitigation and they are never considered capable of consenting to sex.
I do agree with the general principle that children below a certain age cannot genuinely consent to sex with an adult. But I’m not sure what the proper legal approach should be for two such children who engage in sex with one another.