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If you had sex with someone below the age of consent, even if you believed the sex was consensual, you may face charges of statutory rape. Legally, someone below the age of consent cannot legally consent to having sex. Therefore, sex with an underage person is against the law. This is true even if both parties are below the age of consent.

These laws vary widely by state, beginning with the fact there is no nationwide standard for the age of consent. Additionally, states use different names for the crime as well as for prosecuting and punishing it, under different laws. These terms include rape, sexual assault, carnal knowledge of a child, and unlawful sexual intercourse.

Statutory Rape Laws

These vary by state, but nearly all state statutes deem sexual intercourse with an underage person illegal. Essentially, it is a crime to have sex with anyone younger than whatever age the state determined the age of consent. That said, many states have exceptions to these laws under certain conditions. Typically, these provisions consider the age of the offender as a mitigating factor. Common age factors consider whether the accused is over age 18 or the age difference between the two parties. If the accused is less than three years older (commonly called the Romeo and Juliet Law), punishment is usually less severe.

Same Sex Statutory Offenders

Some states with Romeo and Juliet Laws only apply those exceptions if the two parties are of the opposite sex. For example, Alabama and Texas may acquit a defendant who is less than three years older than the victim. However, if the two parties are the same sex, Romeo and Juliet provides no defense against a statutory rape charge.

Statutory Rape Penalties

Most states classify statutory rape as a felony, punishable with a minimum prison sentence of one year, plus fines. Both vary widely by state. Additionally, statutory rape convictions typically require registration as a sex offender. This penalty imposes limitations on where the offender lives, works, or goes to school. Registered sex offender names go into a national database, accessible by the public. Convicted sex offenders carry this label for the rest of their lives.

We look at the wide variances in statutory rape penalties in two states: Montana and New York.

Statutory Rape Penalties in Montana

Age of consent in Montana is 16. Montana punishes this as sexual intercourse without consent, with age as an aggravating factor.

• Sexual intercourse without consent convictions carry sentences of two to 100 years in prison and fines up to $50,000
• A defendant four years or older than the victim receives four to 100 years in prison and fines up to $50,000
• If the defendant is over 21 and the victim is under age 12, conviction carries a mandatory prison sentence of 25 years
• A conviction of sexual activity with a child under age 14, that does not include intercourse, receives a four-year minimum sentence and fines up to $50,000 (though the judge may impose a shorter sentence)
• Montana also authorizes chemical castration in some cases
• Convictions of sexual activity with underage children require registration as a sex offender

Statutory Rape Penalties in New York

Age of consent in New York is 17. New York prosecutes statutory rape under its rape and sexual abuse laws.

• First degree rape (includes penetration) of a minor under age 11 is a Class B felony receiving sentences of five to 25 years in prison
• Second degree rape of a minor under 15 with a defendant who is over 18 and at least four years older than the victim is a Class D felony with a maximum sentence of seven years
• Third degree rape is between a minor under 17 and offender 21 or older, with a maximum sentence of four years
• Conviction for statutory rape requires registration as a sex offender

New York law also forbids non-penetration sexual contact with minors, called criminal sexual acts, classified as a felony. Sexual abuse of a minor is a misdemeanor, as is sexual misconduct with anyone under age 17.

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