Tennessee statutory rape law is clear, but is it time to rethink the law? Tennessee Code Annotated section 39-13-506 provides:
(a) Mitigated statutory rape is the unlawful sexual penetration of a victim by the defendant, or of the defendant by the victim when the victim is at least fifteen (15) but less than eighteen (18) years of age and the defendant is at least four (4) but not more than five (5) years older than the victim.
(b) Statutory rape is the unlawful sexual penetration of a victim by the defendant or of the defendant by the victim when:
(1) The victim is at least thirteen (13) but less than fifteen (15) years of age and the defendant is at least four (4) years but less than ten (10) years older than the victim; or
(2) The victim is at least fifteen (15) but less than eighteen (18) years of age and the defendant is more than five (5) but less than ten (10) years older than the victim.
(c) Aggravated statutory rape is the unlawful sexual penetration of a victim by the defendant, or of the defendant by the victim when the victim is at least thirteen (13) but less than eighteen (18) years of age and the defendant is at least ten (10) years older than the victim.
Currently, the age of consent is eighteen in eleven states, seventeen in eight states, and sixteen in twenty-four states plus the District of Columbia. In the North America, the age of consent varies from fourteen to eighteen in Mexico, and is sixteen in Canada. In Europe, the age of consent ranges from fourteen to eighteen, with most countries in the fourteen to sixteen range. Germany has an age of consent of fourteen. France’s age of consent is fifteen. In the U.K., it’s sixteen.
In prehistoric societies, the age of consent was decided by the family or tribe. In ancient Rome, the age of consent usually coincided with puberty, around twelve or fourteen. Christian medieval Europe followed the Roman tradition.
In the late nineteenth century, reformers pushed to set and raise age of consent laws throughout the United States and other Western Countries. In most states, the age of consent were raised from ten and twelve to sixteen. Originally, the reformers’ arguments were based on morality but later they shifted to child welfare.
Interestingly, there is a paucity of data on the effects of teenage-adult sex on the teenager. It is interesting given how severe the law punishes sex with minors. Sex registries are brutal. They often have lifetimes consequences and can destroy a person’s life decades later for minor slip ups (e.g., missing a meeting, failing to update one’s address quick enough). This is all understandable for someone that harms children, but the question is, at what age is the “harm” not really that harmful? In Tennessee, do we really believe that most states love letting pedophiles diddle children? After all, they set their age of consents lower than eighteen. What data do we have that sixteen and seventeen year olds are so in need of protection that we will destroy the lives of any adult that has sex with them?
I’m not advocating that we encourage teenage-adult sex. I’m just questioning whether we should impose some of our harshest penalties when there is little data showing the harm. If sixteen and seventeen year old sex was so harmful, wouldn’t we see those effects in other states, Canada, and Europe? As Justice Brandeis put it, the states are “laboratories of democracy,” and from the looks of it, some laboratories are doing just fine. It’s time to rethink Tennessee’s age of consent law.