“Queer Teens and Legislative Bullies: The Cruel and Invidious Discrimination Behind Heterosexist Statutory Rape Laws”

Higdon, Michael J., “Queer Teens and Legislative Bullies: The Cruel and Invidious Discrimination Behind Heterosexist Statutory Rape Laws” (February 23, 2008). Available at SSRN: http://ssrn.com/abstract=1097097

Abstract:
Most states make an exception to their statutory rape laws for sexual acts involving an adolescent victim, who is below the age of consent, when the defendant is close in age to the victim (i.e., generally no older than three or four years). However, a few states explicitly limit such exceptions (commonly referred to as Romeo and Juliet exceptions) to only those situations involving teens who are of the opposite gender. Thus, adolescents in these states who have sex with someone below the age of consent, and who are also the same gender as the defendant, cannot avail themselves to the exception.

As a result, these teens are faced with felony convictions, large fines and mandatory sex offender registration – penalties that would not attach had the victim been the opposite gender. My article argues that such disparate treatment is not only cruel, but is also invidious discrimination that violates the Equal Protection Clause given that these laws serve primarily to stigmatize LGBT adolescents, a class of individuals that is already one of the most stigmatized and at-risk groups in American society.