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The age of consent... for what, exactly?

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tortot555 asks:

I want to know what the government considers sex. When they say age of consent what kind of sex are they talking about?

Heather Corinna replies:

Good question! I wish I had an answer to give you as succinct and simple as your question.

The answer is that it depends. Many countries have age of consent (AOC) laws that are federal, or the same throughout a whole nation, so it just depends then on what country you're in. If you're not in one of those -- and in the US, you're not -- then it depends on what state, province or other area with its own jurisdiction you're in. Ages of consent tend to vary from around the age of 15 - 18 in different states. AVERT keeps a very basic international age of consent chart online here. But what kind of sex they're talking about, and what kinds of charges might be involved, is where we see a lot more variation.

To find out what the specific statutes are for you in the United States, and what "sex" means in your state around these laws, you're going to have to look up the laws for that state. Not knowing which state you're in, I can't tell you what the laws there are. To find the laws for your state, you can Google "age of consent" and the name of your state and you'll tend to find a page from your state's government website with that information, or a page with your state's laws reprinted from ageofconsent.com. These policies do tend to change often, so it's not always easy to access the most recent laws. Over the last 150 years, especially in the US, many states' ages of consent have been raised or otherwise adapted several times. But I can tell you what's typical, give you a broad overview and also provide some explanations of some of the language that shows up when you're reading these statues. Sometimes the lingo gets so tangly that you'd almost think folks wanted people to break the law.

I don't know how old you are or why you're asking, but just so we're clear, the age of consent is the age at or above which a person is considered to have the legal capacity to consent to sexual activity. In other words, in which a person's consent is legally meaningful.

People below the age of consent may not, by law, give consent, and sex involving those people -- most typically when the other person or people involved are over that age -- is criminal. The person who is/would be punished in that instance is the person over the age of consent, or the older partner, not the person under the age of consent. The person under the age of consent is considered a victim of that crime, even in instances when that person feels no crime has been committed and that any sex that occurred was something they wanted to participate in. "Statutory rape" is a typical term used to describe wanted or unwanted sex that occurs outside of age of consent policies: in general, when someone over the age of consent has a sexual interaction with someone under it outside the bounds of the law, that sex is considered to be rape and/or sexual abuse.

We're often asked by young people if parents can give permission for people under the age of consent to have sex and thus, get around the law. The answer, on the whole, is no. In fact, some of the reasoning for age of consent laws, particularly in the 1800s and 1900s, had to do with child prostitution initiated by parents. If you're curious about the history of age of consent laws -- and it is a pretty fascinating and sometimes maddening one -- this teaching module from the Center for History and New Media gives an excellent overview. The big exception here is that being married can negate age of consent laws, so in states where minors can marry younger than the age of consent, or can marry with a parent's permission, that's where there's a parental loophole.

Many age of consent statutes allow for a similar-age window for partners. In other words, allow room for sex to be legal for someone over the age of consent with someone under who are only a few years apart, sometimes more than a few. But that also varies a lot from state to state, so again, you want to read your own state's policies to find out what the what is.

Governments tend to define sex as solely or primarily genital: as having to do with anyone's penis, vagina, vulva or anus, or the areas right around those parts, and then as any other parts those parts may come into contact with in a sexual context. The age of consent isn't applied to things like medical care, parents changing diapers or other scenarios where no one involved has a sexual motivation. Rather, it's about that kind of contact when someone is looking to express their sexual desires or to get off.

Often the definition of what sex is legally will be about vaginal or anal intercourse or oral sex, other times it will also include manual sex (fingering, handjobs, and what governments like to call "fondling"). Some laws around the age of consent also include touching someone's breasts. The law usually tends to be most concerned with sexual activities that involve anyone inserting their genitals into someone else's genitals or other body parts, or with anyone inserting their body or anything else into someone else's genitals.

We do have some laws around sex pertaining to age that are federal, not state-based, in the United States. For instance, child pornography laws are federal, and that includes minors using cell phones or other communication devices in any way that is considered to be sexually explicit (usually that's about people being naked). Use of the the mail or other means of communication, like phone calls or the internet, to involve a minor in some way in a criminal sexual act is against federal law. So is someone over the age of majority (a legal adult) transporting a minor (someone under 18) with the intent of taking part in something sexual with them in some way. We used to have federal and state "sodomy laws" -- laws about kinds of sex considered deviant, even if they were things married couples did often, which were almost entirely only used to prosecute same-sex couples -- but in 2003, both heterosexual and homosexual sodomy was ruled legal in all US states by the Supreme Court. However, you'll still find sodomy listed as part of some states' age of consent laws.

When you're looking into all of this, you're going to run into some terms that can be unclear. This is hardly an exhaustive list, but just to get you started, here are a handful that might make you go "Wha--?":

  • actor: The "actor" in this context refers to the person who is decided to be the initiator or the person doing whatever is going on to someone else. And yes, we know sex between people often doesn't go like that, especially when it's the good stuff. But the law doesn't seem to, or maybe policymakers have just had very one-sided sex lives, who knows.
  • sexual intercourse: As you might surmise, this usually refers to either vaginal intercourse or anal intercourse. In other words, when two sets of genitals are interlocking in some way.
  • sexual conduct: This is a vague one, but figure that in practical application it means anything someone is doing or might do to someone else because they have sexual feelings, OR that an officer of the law, a jury or another citizen would figure were about sexual feelings. In other words, someone or someones doing something that would tend to be considered sexual.
  • sexual organ: This is a really arbitrary term, since our whole bodies can be sexual and the biggest sexual organ is the brain (which the state is usually NOT referring to). Usually, this means somebody's genitals.
  • indecent liberties: In common language, someone doing something to someone else that is considered grossly improper or inappropriate by someone involved or someone else entirely.
  • deviate/deviant sexual conduct: This one's a doozy. Basically, this means any kind of sex that by general community standards (which can be the opinion of a million people or that of one small jury of peers) folks consider to be freaky, weird, immoral or "not normal," though in practice, this can just mean anything but penis-in-vagina intercourse (considered acceptable because it can make babies) and kissing. Sodomy is a term often used in this context or to mean this same thing, and oral and anal sex often fall under this umbrella, for example, as can the use of sex toys, certain kinds of role play, or whatever someone else decides they think is improper, really.
  • rape and sexual abuse: Rape and abuse are terms used very questionably around age of consent laws, and they don't always mean the same things they do in every other context. In other contexts, rape and sexual abuse is about something sexual done to someone that they did not consent to and did not want. But with these laws, because a minor under the AOC is considered not to have the ability to consent by virtue of their age, even if that younger person gave consent and wanted what was going on very much, that sex is still considered nonconsensual and thus, rape or sexual abuse.
  • position of authority/position of trust: This one's important in most age of consent laws. What it's about is that when someone is not only older, but has additional actual or potential power over the younger person beyond just their age, then sex (whatever a given statute defines it as) with that person under the age of consent is usually considered a bigger crime, because that person has even more power to manipulate or exploit the younger person. In states where a grace period is given for a person over the AOC and someone under to be having sex lawfully, that usually is not extended to people in a position of authority or a position of trust. Some examples of that kind of person are teachers or coaches, religious leaders or foster parents (blood relatives are covered under incest laws).
  • sex offender: This is a status given to someone charged with certain kinds of sex crimes. It's seriously serious business. Understand that MOST of the time, especially when people are pretty close in age, statutory rape laws don't wind up being used. In other words, the vast majority of the time, no one gets charged or punished, and many who do wind up with misdemeanors. But not always. Sometimes, people wind up with serious charges that result in getting sex offender status. Right now in the United States being convicted as a sex offender can grossly limit where you can work, who you can be near, and even where you can live. Some people are only registered as sex offenders for a limited period of time, others for their whole lives. I don't mean to be scary here, because like I said, this is not common with a lone age of consent issue. However, it is something important to be aware of, particularly around this issue, because when a child (in the legal view, not developmentally) is involved, someone winding up with sex offender status is far more likely than with sex crimes involving adults.

Pornography and sexual solicitation will also often be mentioned, and they're both worth looking up, especially for anyone engaging in any kind of sexual sharing online, especially with photographs. If someone is a minor, even if they are over the age of consent, in the states, that is child pornography, one of the most serious felonies there is, and one that can really screw up people's lives in a massive way. Even though something like sexting is usually private sharing (or intended to be private, though some folks don't keep it private) between couples, this is one of those areas where some lawmakers seem to be really looking to make an example of young people, so it's an area to be incredibly cautious about. There are other reasons to be cautious about those kinds of exchanges, too, but this is one that potentially involves doing time. Solicitation has to do with asking someone to engage in prostitution: in having sex for some kind of material exchange (except a wedding ring. Apparently that's just fine).

There are also a whole bunch of euphemisms often used in policies addressing sexual activity. I know -- boy, do I! -- that probably seems pretty silly, because it is silly. The law, of all things, should be able to talk about sex like a grownup, but alas, the law is often a really good reflection of our culture's weird attitudes around sex, and this is no exception. So, if and when you read phrases like "union with," "carnal knowledge," "debauching," "penetrative act," "sexual congress," (which isn't about your congressperson specifically) "sexual intrusion," or "lewd or lascivious act," they're talking about some kind of sex, usually defined elsewhere in the laws more clearly, but not always as clearly as it should be.

(In the age of consent laws for Idaho, filed under "Lewd Conduct With Minor Child Under Sixteen," reads like this: "any lewd or lascivious act done by an actor with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person, such minor child, or third party." Looks like Idaho lawmakers missed out on potentially budding careers as tabloid journalists.)

One thing I always want to make sure everyone knows about age of consent laws is that no matter how any of us feel about them, whether we like them or not, or agree with them or not, they're still laws that we are either following or breaking, and breaking them can always carry legal consequences. So, it's always smart to do yourself a favor and find out what your laws around sex are and to try to stay within the bounds of them, even if you think they're stupid, unconstitutional or insulting. If you want to protest them, you're going to be a lot more effective in changing them by engaging in lawful, nonsexual protest than you are by just breaking those laws.

There's one last thing that I like to remind people about the age of consent, especially when in any sexual situation, there's someone under the age of legal majority and someone over it. We sometimes hear from people under the age of consent who are with or considering being with a legal adult sexual partner, and who are the ones doing the legwork to find out about legalities and the ones who are doing all the worrying about what might happen to their older partner if they get caught. Meanwhile, the older partner isn't doing that work at all and doesn't seem to care about what could happen. Now, I'm all for everyone caring about their partners and wanting everyone to be protected from negative outcomes.

But.

People under the age of legal majority do not have the agency those over it have because they (or you, not sure how old you are) are not afforded the same rights. What that means, in my book, is that it's not on a younger person to try and protect an older person in these choices. The person who is a legal adult should be acting like one and recognizing their greater privilege, as well as the power imbalance that exists because of those differences in rights, so should figure it's them who should be putting the most effort into looking out for both people in this situation. That includes not just informing themselves to cover their own behinds, but also recognizing that while a younger person in these situations isn't likely to be charged with anything, being in the middle of a legal or community sex scandal is NOT a good place to be, and because it's the adult who'd be committing the crime, it's the adult who would be putting BOTH of them in the big pickle (that's not a euphemism for sex). Charges or even investigations around sex crimes can disrupt everyone's lives and relationships tremendously, can wind up exposing things everyone wants to keep private and can generate a level of drama that is very, very hard to handle.

The younger person in these situations should focus on worrying about themselves, and if the older person doesn't seem to give a hoot about any of this, figure that that older person is giving them a pretty solid cue that they may not be a sound sexual partner, period.
If you're a teen, this is the time in your life to take care of yourself as best you can, and let adults take care of themselves, especially since they're given more rights to do that with. Should you come upon an adult who's got the hots for you and you've the hots for them, but they clearly doesn't seem to want to or be able to take care of themselves, rest assured they won't take very good care of you or anyone else either, and so you'd be wise to steer clear of them sexually, and not just because of the law.

P.S. I'm not a lawyer. I just have had to dig into all these kinds of laws a lot working in sex education, and have also spent time around lawyers in work and life and made them explain a lot of terminology to me they seemed to think I understood when I had no idea what on earth they were talking about. So, if you want someone who can explain all of this even better? Ask a lawyer. If you don't know one, you can give Ask A Judge a whirl.

written 17 Oct 2010 . updated 20 Jan 2014

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