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For Queer Youth, Statutory Rape Laws Can Sometimes Do More Harm than Good

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August 13, 2013

Earlier this summer, an 18 year-old Floridian woman walked across a football field and accepted her high school diploma, sights set enthusiastically on the future. “She is scheduled to attend the medical program at [a local college]. She’s also scheduled to audition for The Voice in Texas. She has been singing her whole life and also 4 years of choir” her father proudly told me.

The young woman in question was Kaitlyn Hunt. But despite only having a high school diploma and boundless ambition, Hunt was the one teaching me, a queer 24 year-old university student, about legality, homophobia, and sex-negativity.

By now, you have likely heard Hunt’s story. During her senior year at Sebastian High School, the then-17 year-old began a relationship with a 14 year-old peer. After Hunt turned 18 — the age one becomes a legal adult in Florida — her girlfriend’s parents contacted the authorities. In early February, this culminated in Hunt being expelled from Sebastian High, arrested, and charged with two counts of lewd and lascivious behavior on a minor. If convicted, Hunt faces a steep felony charge and up to 15 years in prison.

At first glance, this seems like a run-of-the-mill statutory rape case: Under Florida law, Kaitlyn can now legally vote, change her name, buy cigarettes, get a tattoo, sign various legal documents, acquire a loan, work full-time. She now has countless privileges that her younger, potentially impressionable girlfriend does not. There is a distinct power imbalance between the two girls. Age of consent laws keep that in check, preventing those in positions of power from sexually coercing youth. “Statutory rape law is meant to serve those in the middle – those over 14 – who were not technically forced to have sex yet somehow deserve the law’s protection,” said law professor Kay Levine during a 2012 lecture at Emory University.

But while statutory rape laws sound practical in theory, they are not so cut-and-dry.

Lewd and lascivious behavior. Statutory rape. Age of consent. Where did the language we use to refer to situations like Hunt’s even originate from?

According to Levine, this lingo is rooted in the criminal justice policy of the 1990s. After the sexual revolution of the 1960s, the number of single teen mothers was on the rise, resulting in an increasing amount of money from the welfare system being spent on these women and their children. Policymakers were searching for a way to decrease these costs. Around that same time, a US Irvine student published a study that was exactly what these politicians were looking for.

“His data revealed that 2/3rds of the babies born to teen mothers were fathered by adult men over the age of 18. His data hit the airwaves like you cannot even imagine,” explains Levine. “All of a sudden, it’s all anybody in criminal justice could talk about. People who were interested in stemming the tide of teen pregnancy suddenly had a new scapegoat. Instead of blaming the girls for getting themselves pregnant, they suddenly were able to point the finger at the men for impregnating these young and impressionable girls and then leaving them behind to a life of welfare support.”

The data in the UC Irvine study was eventually contested by later studies, yet the laws remained and continue to remain on the books. It becomes evident that statutory rape laws were not nobly created to protect youth, as many still believe today. They were created to trim the fat from burgeoning national and state budgets.

The fact that Kaitlyn Hunt — a lesbian — is now being charged under these laws which were not even designed with queer youth in mind only adds insult to injury.

If the goal is to protect youth, are we actually doing that when we criminalize their consensual relationships? Nancy Goldstein of The Guardian acknowledges that Hunt having to register as a sex offender would be a “true future killer,” one with emotional ramifications, as well.

“She is doing okay, but scared. Scared of judgment and scared of what may happen to her future,” Hunt’s father told me when I asked how his daughter was holding up. Shortly after this conversation, a milkshake was thrown at Hunt through her car’s open window as the offender screamed slurs in her direction. Hunt became so jarred that she had to pull over.

After completing her sentence, the 18 year-old would have difficulty securing employment; her ability to move on with her life would be even further impaired.

Fortunately, Hunt is from Florida, a state which has made an effort to protect its youth from having their futures destroyed for having consensual sex. In 2007, Florida created “Romeo and Juliet” laws that prevent youth from being mislabeled as sex offenders if:

The victim is at least 14 years old
The victim has consented to the relationship
The accused is no more than four years older than the victim

If this law sounds too good to be true, that’s because it is. Florida’s Romeo and Juliet law does not make mention of whether queer couples are protected under Section 943.04354, F.S. What’s more, Florida law narrowly considers sexual intercourse to be “the penetration of the female sex organ by the male sex organ” – ”a definition which doesn’t apply to LGBTQ individuals like Hunt.

By leaving queer sex by the wayside, the Florida Romeo and Juliet law — like the initial statutory rape laws — is sending the message that queer sex doesn’t matter; unless it can be criminalized, not only does it not count, but it’s not even worthy of the legal language to describe it. As a queer person, this is something that hits all too close to home.

While Kaitlyn’s charges may have not been a direct result of her being queer, the legal system is further penalized because of it. Equal treatment under the law also means equal protection. Hunt is being prosecuted under one law which was written exclusively for heterosexuals — the other which might protect her doesn’t even recognize her. She’s included and excluded for all of the wrong reasons.

But Kaitlyn Hunt is making a statement of her own.

In Late May, Florida’s state attorney offered her a plea bargain (accept the felony charge, attend sex offender counseling, and spend two years under house arrest). Hunt did something that many charged with statutory rape do not: She did not take the deal. “All those defendants are pleading guilty quite early on so those cases do not go to trial; reporters never find out about them. The public isn’t really aware of them either,” says Levine.

Hunt presently waits for a high-risk trial to make one last ditch effort at having charges of any sort from being placed on her record. In doing so, she is sending a message to prosecutors: What I did matters and counts, but it was not wrong and I am not ashamed. Her rejection of the plea deal — along with serving as a last stand for her criminal record — also makes a broader statement about teen sexuality and agency.

In the reproductive justice movement, we talk a lot about returning the power to youth. Dialogues about teen sexuality happen all of the time, but rarely are teens — especially queer teens — a part of them. These conversations do not take place in our high school’s health classrooms, but in the relatively inaccessible realms of law and legislature (among typically white, typically male, typically older individuals), often resulting in the institution of laws like the ones which are now affecting Hunt. Regardless of one’s feelings about Hunt’s guilt or innocence, the fact that a teenager is a defendant in a high-profile case about teen sexuality is nothing short of remarkable.

As of July 25, Hunt’s trial has been postponed. A new trial date remains to be set.

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