Age of consent is a legal term for the age a person must reach to give consent to sex. If an adult engages in any type of sexual activity with someone below the age of consent in that state, they’re committing a crime even if the minor said they agreed to have sex.
In the U.S., laws to define consent and the age of consent are different in every state. The national average age is 16. In Arkansas, the age of consent is 15, while in Oregon, the age of consent is 18.
Statutory rape is a crime where one or both people are below the age of consent, and they both agree to engage in sexual activity. Since one person is legally too young to consent to sex, the encounter can’t be consensual and legally is rape.
The age difference between the two people may determine the severity of a statutory rape charge or sentence if they’re convicted.
What Is Consent?
Consent means that you freely agree to engage in sexual activity. Someone may be considered incapable of consent if they’re:
- Intoxicated on alcohol or drugs
- Asleep or unconscious
- Physically, mentally, or developmentally disabled, including a senior with dementia
- Younger than the age of consent in that state
Consent is defined differently in every state, but it usually means all of the following:
- Clearly saying or showing that you want to engage in a sexual activity
- You’re able to freely consent to sex, or not in a coercive relationship or being held against your will
- You’re able to think clearly or understand the situation
Consent laws in each state may also cover a young person’s right to reproductive health services like:
- Birth control
- Tests or treatment for sexually transmitted infections (STIs)
- Pregnancy testing
- Prenatal care
- Abortion care
In many states, people under 18 have a legal right to access many reproductive health services without a parent’s or guardian’s consent. Fewer states allow a minor to have an abortion without a parent’s or guardian’s consent.
Old Laws About Young People’s Rights
Age of consent laws began in England during the Middle Ages. Once girls turned 12, they were considered mature enough to consent to sex and even get married. If a man had sex with a girl who was below that age, it was rape. If girls were younger than 10, it was considered a more severe form of rape and a more serious crime.
By the end of the 19th century, people in England and the United States began to protest these laws, because they felt girls were too young to consent to sex at that age. They pushed for a new law that raised the age of consent to between 16 and 18.
More recently, U.S. age of consent laws expanded to include boys and girls. All 50 states now prohibit sex between adults of any gender and children of any gender who are too young to consent to sex.
Child Marriage Loophole
Laws in 46 states still allow an adult to marry minors, including those under the age of consent. The majority of these marriages are between girls under age 18 and adult men.
Marriage is still a legal defense to a statutory rape charge at the federal level and under some state laws, and some states allow children as young as 11 to marry as long as they have their parent’s or guardian’s permission. These laws also could allow an adult to marry the victim if she’s pregnant to get out of a statutory rape charge.
Some anti-child marriage advocates are trying to change these laws so adults couldn’t marry minors as a legal defense or loophole for a statutory rape charge.
Not Just Adults Who Have Sex With Minors
Someone can be charged with statutory rape of a minor even if they’re both under 18 or the same age. Most of these cases are heterosexual encounters where the boy is charged with a crime. If both sexual partners are minors or are the same age, the boy may be charged with a felony, but sometimes, it’s a misdemeanor.
Consent applies to anyone who can’t freely agree to sex, regardless of age. Older adults with dementia, such as Alzheimer’s disease, or who are dependent on other adults may be sexually abused because they’re unable to consent to sex. Some seniors in nursing homes may be dependent on their abusers for care and afraid to speak out, while others may be unable to communicate because of dementia or illness.