Illustration by Forest Byrd

Rape — forcing sex against someone’s will — is a crime so heinous it is hard to imagine a punishment too severe. Rape survivors often bear scars, deep emotional and psychological scars, for the rest of their lives.

So, if the rapist is stigmatized for the rest of his life, by being placed on a sex-offender registry, that hardly seems unfair and it may be a way to protect other victims from suffering the same fate.
But what if the sex is consensual"

Statutory rape is not forced; it is the crime of sex with someone under the age of consent. In New York State, that age is 17.
Earlier this month, a Voorheesville man, Jeremiah Conklin, was sentenced to one to three years in state prison for third-degree rape and endangering the welfare of a child. After that, he will be listed on the state’s sex-offender registry, possibly as a Level 2 offender, which means his address and crime would be publicly posted.

Conklin was 23 and the baby-sitter he is convicted of raping was 16 at the time. State law lists sexual intercourse between a person who is 21 or older and a partner younger than 17 as third-degree rape.
In most the states in the nation, the act would have been legal; the age of consent is 16. Age is arbitrary. Everyone can agree that, say, a 5-year-old is incapable of consenting to sex but what about a 16-year-old" Some 16-year-olds are virgins and sexually naive; others are sexually active and capable of deciding who they want to have sex with.

In this case, DNA tests showed the 16-year-old had semen from more than one man, indicating she had multiple sexual partners.

Conklin’s lawyer said at the sentencing that part of the state law is unconstitutional, given modern-day knowledge about adolescents’ sexual activity; the judge disagreed.
Conklin is maintaining, as he said in court, "We never had sexual relations at all." This seems unlikely, given the DNA evidence, although, during the trial, the defense implied the 16-year-old had access to Conklin’s used condoms.

But no one on either side has said the sex was forced.
Statutory rape was codified into English law more than 700 years ago when it became illegal "to ravish," with or without her consent, a "maiden" under the age of 12. In the United States, during the 19th Century, states gradually raised the age of consent, in some cases to 21. Across the country now, the age of consent ranges from 14 to 18 years, although in the majority of states, the age of consent is 16.

The original statutory rape laws were to protect unmarried, young females from males who might take their virginity, and leave them pregnant, without marrying them. Shotgun weddings are now pretty much a thing of the past. Our society has largely changed its ideas on sex, which is no longer seen as being exclusively linked to procreation.

Over a decade ago, the United States Department of Health and Human Services presented a report to Congress on out-of-wedlock childbearing that found about two-thirds of all births to unmarried teenage girls are fathered by adult men.

Girls who are sexually attracted to men often see themselves as participating in a mutually gratifying activity rather than considering themselves the victims of men.

Still, if a girl has brought the matter to court, she must, at least in retrospect, consider the act a crime. Or sometimes her parents do. Using the girl’s sexual behavior as a way of judging her maturity or lack of coercion inappropriately sets the girl’s conduct rather than the man’s actions as the basis for judgment.

What the New York State Legislature needs to do is lower the presumptive level of punishment for statutory rape. All adults accused of statutory rape shouldn’t be treated the same way. Courts could use aggravating factors based on the man’s actions to increase the sentence when needed for a fitting punishment.

A few states now set two ages of consent. Sexual intercourse is made criminal for the older participant when the younger one is under the first age level, usually 13 or 14; intercourse is also made an offense when the younger participant is over the first age level but younger than 16, if he or she is more than four years younger than the accused.

Listing someone on the sex-offender registry who has once had consensual sex with a 16-year-old along with rapists who have repeatedly forced young children to have sex is unfair. Next to last week’s story on Conklin’s sentencing, we ran a story of a sex offender, John Haddock, who had forcibly raped an adult female relative. He is now a homeless panhandler, repeatedly arrested after begging for money in Guilderland.

We’ve written a number of times about the difficulties sex offenders face once they are listed on the registry. They often can’t find jobs or a place to live. A fate like that is not warranted for an act of consensual sex with a 16-year-old.

We believe consensual sex should not be considered as rape. It diminishes the severity of real rape. The charges and punishment should fit the crime.

— Melissa Hale-Spencer, editor