Laws regarding statutory rape and sexual assault of a minor vary from state to state. For example, what may be legal in Nevada, could send you to prison and require sex offender registration in California. This is because State legislatures are able to enact their own State laws and criminal codes separate from the federal system, which leads to different standards throughout the United States. In this article we’ll discuss some basics of how the age of consent and “Romeo and Juliet” laws work, and then do a deeper discussion of how the age of consent laws work in my home state of Colorado.
For a quick review of the Age of consent in all 50 states, there is a site that has a helpful chart and map. It also has information on whether the state has a specific “close in age exemption”. I have not individually verified that all information this site is currently correct, and strongly recommend doing more research on your state’s laws. The current lowest age of consent in the United States is 16 years old. States like Alabama, Kansas and Michigan all set the age of consent at 16. States such as Illinois, Colorado and Texas have age of consent at 17. The highest age of consent is 18 years old. In some states the 18-year-old consent laws are a bright line rule and they have no “close in age” exception. California is a good example where the law is 18+ to be able to consent, and even consensual acts under that age can result in sexual offense or statutory rape charges.
The reasoning behind age of consent laws is to protect minors from abusive or exploitative relationships and/ or situations. Every state has an age of consent law, so there certainly is a nationwide consensus that minors cannot consent to sexual acts based on solely on their age. However, states disagree on when people have the maturity to make that decision for themselves. That is why anyone in a relationship with a minor-even other minors-should pay close attention to the laws in the state in which they reside before engaging in a sexual relationship. Remember, in some circumstances you risk a felony conviction, prison time and even sex offender registration. When in doubt, consult a local criminal defense attorney about your specific situation.
Application of age of consent laws can often be quite complex, particularly when considering relationships between teenagers who are close in age. Above I mentioned that some states have “close in age” or “Romeo and Juliet” laws. Romeo and Juliet laws come into play to provide exceptions to prevent legal consequences for consensual sexual relationships between minors who are not significantly different in age.
Let’s use the literary case of Romeo and Juliet to examine whether Romeo would be facing criminal charges if their relationship was in modern day Colorado. In Shakespeare’s play, Juliet’s age is given as 13, while Romeo’s age is not specified. Many literary scholars believe him to be between 14 and 21 years old. For Romeo specifically, his age would be very important, as it would make all the difference as to whether he was going to end up on a Sex Offender registry. We’ll examine their situation below.
First, let’s review the pertinent law in Colorado. There are several ways that a person can be charged with sexual assault. You’ll notice below in the Statute that the word “or” is bolded between each section. Notice the law says, “sexual intrusion on penetration”, so this can include vaginal, oral or anal sex.
I have added underlines for the age-related consent portion of the statute.
Colorado Revised Statutes, Section 18-3-402- Sexual assault:
(1) Any actor who knowingly inflicts sexual intrusion or sexual penetration on a victim commits sexual assault if:
(a) The actor causes sexual intrusion or sexual penetration knowing the victim does not consent; or
(b) The actor knows that the victim is incapable of appraising the nature of the victim’s conduct; or
(c ) The actor knows that the victim submits erroneously, believing the actor to be the victim’s spouse; or
(d) At the time of the commission of the act, the victim is less than fifteen years of age and the actor is at least four years older than the victim and is not the spouse of the victim; or
(e) At the time of the commission of the act, the victim is at least fifteen years of age but less than seventeen years of age and the actor is at least ten years older than the victim and is not the spouse of the victim; or
(f) The victim is in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over the victim and uses this position of authority to coerce the victim to submit, unless the act is incident to a lawful search; or
(g) The actor, while purporting to offer a medical service, engages in treatment or examination of a victim for other than a bona fide medical purpose or in a manner substantially inconsistent with reasonable medical practices; or
(h) The victim is physically helpless and the actor knows the victim is physically helpless and the victim has not consented.
In Colorado the age of consent is 17, however, when a person is under that age, we should review the age difference between the parties involved to determine whether a crime was committed. Individuals 17 years or older can legally consent to sexual activity, regardless of the age of their sexual partner. Let’s now review the nuances of the law, particularly for individuals under the age of 17.
Colorado’s Romeo and Juliet law provides certain protections for teenagers who engage in consensual sexual activity with others close to their own age. This law recognizes that it is not appropriate to subject teenagers to severe criminal penalties intended for predatory adults.
For individuals who are 14 or under, Colorado law allows for consensual sexual activity with partners who are less than four years older. This means a 14-year-old can legally engage in consensual sexual activity with someone who is up to 17 years old. Beyond that, we may need to examine birthdates to make sure the parties aren’t more than 4 years apart. The relevant statute, Colorado Revised Statutes Section 18-3-402(1)(e), specifies that a sexual assault charge cannot be brought against a person who engages in consensual sexual activity with a minor who is 14 or under, and the age difference between the two individuals is less than four years.
So, let’s use the literary example of Romeo and Juliet’s and apply it too Colorado’s law today. Because we know Juliet was 13 years old, if Romeo was less than 4 years older, he wouldn’t be subject to criminal charges. Since we don’t have any specific statements about Romeo’s age in the play, if he was more than four years older (some scholars think he may have been as old as 21) he’d be looking at serious charges in modern-day Colorado. That is, assuming they consummated their relationship when he secretly spent the night in her bedchamber. But wait! Romeo and Juliet were actually married by Friar Laurence, so let’s revisit the statutory language:
“…victim is less than fifteen years of age and the actor is at least four years older than the victim and is not the spouse of the victim;”
So, even if he had been more than 4 years older than Juliet, he potentially had an affirmative defense to the charges. Now, the ability of minors to get married is an entirely other issue. Probably a future blog post topic at some point.
I’m using the facts in Shakespeare’s story simply as an example because the law was named after them. But we’ll consider some other additional, more modern, examples below.
For 15 and 16-year-olds, the law provides some “close in age” exceptions. Colorado law permits consensual sexual activity between 15 and 16-year-olds and individuals who are less than ten years older. This means a 16-year-old can legally engage in sexual activity with someone who is up to 25 years old without it constituting statutory rape under Colorado law. This provision is outlined in Colorado Revised Statutes Section 18-3-402(1)(f).
Not knowing the age of the victim is not a defense in Colorado. Sexual assault is a strict liability crime.
Example: 28-year-old Charlie meets 16-year-old Jane at a party. She tells him she is 19.
Does Charlie have a defense if they sleep together because he didn’t know her age? No. It doesn’t matter even if she “looked 30,” showed him a fake ID, or was at a bar. Mistake is not a defense to the crime of statutory rape. Now, if Charlie was 24, he would have an exception under the “close in age”, or “Romeo and Juliet exception,” assuming the sex was consensual.
Example: High schooler Debra just turned 17 and starts dating Reginald, who is 56 years old. Should Reginald be charged with a crime if they consensually engage in intercourse?
No. Not unless he was in a position of trust, like a teacher or a coach. For this fact-pattern we need to look at C.R.S. 18-3-405.3. So, if Reginald was supervising Debra, or was in a position of trust, this would be a crime because she is under 18. However, if they don’t have a supervisory relationship, this situation is legal. (No matter how distasteful it may be.) It is not illegal, as Debra at 17 years old, has the ability to consent under Colorado law. If this happened in a state like California, however, he would be in violation of the law where the age of consent is 18.
Sexual assault is a very serious crime with penalties to match the gravity of the charge. The Colorado legislature determined that a violation of subsection (d) is a significantly more serious crime than a violation of subsection (e) by ascribing them different levels of felony offense, and therefore different possible penalties. The penalties are different for the different subsections (ages of victims) in the statute:
If the offense falls under subsection (d), that the child is under 15 years old. The crime is classified as a class 4 felony.
It carries:
If the offense falls under subsection (e), the child is 15 or 16, and the Defendant is more than 10 years older, the charges is a class 6 felony. The penalties are:
The primary aim of Colorado’s age of consent and Romeo and Juliet laws is to protect young individuals from exploitation while acknowledging that consensual relationships between teenagers close in age do not warrant criminal charges. Both teens and their parents/guardians should understand the age of consent laws in their state if they are sexually active.
Given the complexities of Colorado’s age of consent and Romeo and Juliet laws, if you have a question about the legality of your relationship, it is wise to review the applicable laws, and seek expert legal counsel. Statutory rape is a serious crime, and mistake is not a defense in Colorado. If you have been charged with the crime of statutory rape, or sexual assault, please consult a criminal defense attorney in your area.
