In all states there is an age below which someone cannot consent to sexual activity. The age varies from state to state. In Maine the age is 14 or 16 depending on the age of the older partner. In all states that I am aware of the fact that a sexual act may have been purely consensual in the plain meaning of the term is no defense.
The logic behind both the age of consent and the lack of defense of consensuality make perfect sense. No one could reasonably posit that a 6 year old could consent to sex with a 60 year old. That said, the age of consent becomes an arbitrary line in the sand that really has no relation to the reality of many relationships. Forexample, I recently defended a case in which my simpleton 35 year old client had a relationship with his 15 year old neighbor who was clearly capable of consenting and in fact seemed to have initiated the relationship. She seemed far more intellectually capable than my client.
It also makes sense not to have a defense that could result in a scenario where my hypothetical 60 year old client points to a few innocent statements by the 6 year old victim that they enjoyed the oral sex as evidence of consensuality (child victims will often confess to the investigator that they enjoyed the encounter).
ALL THAT SAID
I have increasingly been intrigued by the increasingly explicit and aggressive sex education classes that many school systems are pushing as a matter of policy. A light survey of headlines on the controversies surrounding these programs suggests that schools (state actors) are increasingly condoning either implicitly or explicitly sex amongst the very young. If I may flag my own politics for a moment, it appears that the feminist, pro-abortion, free condoms for all crowd has taken over the school system. In my own home state, for example, one recent school system now provides birth control for middle schoolers.
It occurs to me that a fun defense to try would be to wait for the appropriate case-a 15 year old in the right school system who is having factually consensual sex with an older person. I would then argue that the state is estopped from relying on the age of consent statute because the victim had been taught by the state that she could consent to sex, that they provided birth control to her and that they taught that sexual decisions were within her own purview. I would then argue that the state is estopped from raising an age of consent defense.
Just a thought and one I would welcome some feedback on.
