Research on sex offender laws and their effects on people and society

The US Federal Age of Sexual Consent
by Marshall Burns, Ph.D. 
Detailed comments for Q&A # 40: “Is the age of consent set by state or federal law?”

In the United States, most laws governing sexual activity, including issues of consent, fall under state jurisdiction. However, the federal government passed laws in 2003 and 2006 that increase the circumstances in which certain sexual activity, especially with anyone under 18, is a federal offense. Of particular interest are laws that give the federal government authority over production or possession of erotic images, so that activity that may be completely legal to do under state law, become illegal to photograph under federal law.

The age of sexual consent can be a very complicated matter. Legal statutes generally do not straightforwardly state any age of consent. Rather, a large body of laws make it illegal for people to engage in a variety of activities with other people who are below a variety of minimum ages. Activities so prohibited generally include any sexually motivated contact with the genitals of either person by the other, and may extend to related areas, such as exposure of genitals and lascivious talk. The minimum ages are called ages of consent because the basis of the laws is that the activity is deemed to require consent and a person below the given age is deemed psychologically incapable of granting such consent. It is seldom true to say simply that a certain jurisdiction has an age of consent of x. The age may be different for different types of activity, it may depend on the age of the other party (“Romeo and Juliet” provisions), and there may be other such variables. Given these complexities, we can say that different US states grant people the legal authority to agree to various sexual activities at ages ranging from about 14 to 18.

If circumstances give jurisdiction to the federal government, then a federal age of consent of 18 usually applies instead. This brief report describes circumstances where that is the case, which have increased with recent changes in the law.

Major US federal laws governing sexual activity were passed in the PROTECT Act of 2003 and the Adam Walsh Act of 2006. An “age analysis” performed on these two laws was used to see what they say about persons below any particular age. This analysis looked for situations where these laws make some kind of sexual activity with a person below a certain age illegal, independent of or overriding any state laws under which it would be legal. Such situations are identified as establishing a federal age of sexual consent. For details, see the background report, Age Analysis of Recent US Sex Laws.

The analysis identified three such situations. In all three cases, the federal age of consent established is 18.

Cross-border travel for sex. The PROTECT Act, §105(a)(b), establishes an age of consent of 18 for travel into or out of the country or between states for the purpose of a sexual encounter. If a person lives in a state where the age of sexual consent is, for example, 16 and is dating a 16- or 17-year-old in another state where the age of consent is also 16, that would violate this federal law, even though any particular activity the two people may engage in would be legal in both their states.

This law also makes it illegal for a foreign married couple in which one or both spouses is under 18 to honeymoon in the United States! The law does not apply to a foreign visitor who leaves the United States in order to have a sexual encounter with a juvenile elsewhere.

Sex outside the country. The PROTECT Act, §105(a)(c), modified the law against "sex tourism" and establishes an age of consent of 18 for Americans engaging in any sexual encounter outside the USA. Thus, even in places where it is legal and socially acceptable for an adult to date an adolescent, an American doing so is subject to prosecution for it by the US government. There is no exception for marriage, so an American of any age marrying anyone under 18 in another country, even with the blessings of the parents and with a legitimate marriage license from the local jurisdiction, is breaking this law.

Pornography. The PROTECT Act, § 503, makes it a federal crime to make (or possess or post online, etc.) sexy photos or videos that include a person under 18, even if under the relevant state law any activity depicted is legal and even if the photos or videos are made (or possessed or posted, etc.) by the juvenile(s) depicted in them. This essentially establishes a federal age of consent of 18 with respect to being photographed in a sexual context. Where the state age of consent is lower, this creates the irony that photographing a legal act can now be illegal.

This law creates federal jurisdiction for virtually any occurrence of child pornography in the US by covering anything that was made using materials that crossed a state or national border. The offenses defined require the making of an image; they do not apply to sex acts that are not recorded.

For an example of the application of a similar (but state-level) discrepant age of consent for appearing in pornography, see Police blotter: Teens prosecuted for racy photos, CNet News, February 9, 2007.

 

Questions of Law

The author is not an attorney and poses the following questions in case a reader of this report has the expertise to provide answers or helpful comments.

Questions:

  • Does the imposition of a federal age of sexual consent, as indicated in the three instances above, violate states’ rights?
  • Have there been any complaints that the federal prosecution of pornography cases invades the states’ jurisdiction? On the other hand, do the states just appreciate the use of federal funds to take these cases off their hands?
  • If the latter is the case, does this indicate a voluntary erosion of the states’ autonomy?

See other related questions of law in the background report, Age Analysis of Recent US Sex Laws.

 
This report posted on August 24, 2007, updated January 10, 2008, January 15, 2008, January 25, 2008, January 28, 2009, renamed January 28, 2009.
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