The sex scandal at Milton Academy, in which several male hockey players received oral sex from a 15-year-old student, ended with a plea bargain yesterday. While following the story, Bostonist has been of two minds: On the one hand, we have always thought statutory rape laws were a little questionable, especially when the conduct occurs between consenting teenagers who are close in age. On the other hand, we understand that youths can be especially subject to subtle coercion, and that the state has an interest in protecting them. Throughout the news coverage, though, we've seen commentators blur the important distinction between rape and statutory rape, and the comments of the mighty Alan Dershowitz (whose daughter goes to Milton Academy) highlight the problem: He called it "preposterous" that the boys involved should be "branded rapists." Since the case appears to be prompting a broader public discussion of how the law deals with teen sexuality, we felt compelled to point out how the similar names for the two crimes obscure the huge difference between them, in the hope that our civically engaged readers will approach the matter well-informed.
Rape, like most crimes, requires proof of a certain level of intent. For example, larceny (or stealing, as regular people say) isn't just taking something that isn't yours. It's taking it while knowing it's not yours and intending to deprive its rightful owner of it permanently. So when Bostonist stumbles drunkenly out of a bar one night, sees an unlocked bicycle, and rides it home thinking it's ours, only to discover later that it belongs to someone else, we may be guilty of something, but not larceny. Likewise, rape requires knowledge on the part of the accused that he (or she, but usually he) does not have the consent of the victim. This is why defendants in rape trials tend (unfortunately and probably irrelevantly) to focus on the victim's sexual history: they want to convince the jury that, despite what she's saying now, the victim actually did consent, or led the accused to think she was consenting, so he didn't have the necessary intent for rape.
Statutory rape, on the other hand, is one of a handful of crimes (like blasting a boombox on public transportation) for which no intent is required: all the state has to prove to convict someone of statutory rape is that he did, in fact, have sex with a person under 16. (So the kids at Milton are definitely guilty of statutory rape, and the classic "she said she was 18" excuse is totally worthless.) Dershowitz correctly pointed out, for example, that the girl involved in the Milton case is also probably guilty of statutory rape because one of the boys involved was 15.
The real problem, of course, is the name of the crime itself. Rape is a violent overpowering of another person's will, in the same family as other violent crimes like murder. Statutory rape, on the other hand, is a non-violent violation of a societal standard, more like selling cigarettes to a minor or failing to construct a building up to code. Bostonist is comfortable saying that rapists are despicable people with a disregard for the rights and feelings of others and are probably unfit to get along in civilized society. But statutory rapists are . . . well, pretty much everyone we know. The law of our state compounds this problem by requiring people found guilty of statutory rape to register as sex offenders (even though a 15-year-old who has sex with his 15-year-old girlfriend is probably not likely to pose an ongoing threat to society).
So if state lawmakers are spurred to action by the Milton Academy case or by Dershowitz's comments ("Massachusetts is known throughout the country as having some of the worst rape laws"), Bostonist hopes they will consider changing the name of statutory rape (currently, the law is titled "Rape and abuse of child") and doing away with the sex offender registration requirement, at least where the accused is close in age to the victim. What lessons do you, dear readers, think the legislature should draw from Milton's paradise lost?
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