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Jesse Singal

Statutory-rape laws misused in bullying case

By Jesse Singal
April 3, 2010

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IT’S DIFFICULT to read about Phoebe Prince’s horrific final months without concluding that someone should go to jail for what happened to her. The 15-year-old student in South Hadley committed suicide in January, apparently after intense bullying. The allegations leveled against nine students this week by Northwestern District Attorney Elizabeth Scheibel have yet to be proved. But they paint a picture of the sort of sociopathic cruelty (and, though no school officials were charged, administrative negligence) that would get scrubbed from an after-school special for seeming too contrived and unrealistic. The need for legal action against the perpetrators is self-evident.

More controversial, however, is the route Scheibel’s office is taking to attain some small amount of justice for Prince and her family. As a recent Globe article noted, there are no statutes outlawing bullying, so Scheibel is relying on a mélange of related laws that deal with stalking, civil-rights matters, and statutory rape. The torment Prince suffered may well involve violations of the stalking and civil-rights laws, though establishing that in court could be difficult, some experts say.

The statutory rape charges, however, are more problematic. They grow out of a law that has long been applied in a troublingly inconsistent fashion — and shouldn’t have been applied here.

These charges were filed against two teenagers who, authorities say, had sexual relations with Prince: Sean Mulveyhill, 17 and Austin Renaud, 18. Renaud doesn’t face any related charges. That suggests a lack of evidence that he was involved in the bullying. He is being charged only for having sex with Prince. In neither defendant’s case are authorities suggesting that the sex was forcible.

The statutory rape law, which forbids sexual relations with minors under 16, is intended to protect young people from genuine assault and exploitation. But in the real world, teenagers frequently have consensual sex with other teenagers. That fact may be worrisome to parents, but the existing law raises a simple question: Should a 17-year-old face the possibility of jail time — and of being publicly branded as a sex offender — for having sex with a 15-year-old classmate? Apply the situation to your own town: Would you be comfortable if an otherwise sterling junior was thrown in jail for having sex with an otherwise sterling freshman?

These pairings aren’t infrequent, and yet charges are rarely brought. In the Prince case, they’re being applied to strengthen the DA’s case — the more charges are brought, the more likely it is some will stick. But there’s no indication that sex with either male student was what prompted Prince’s death; rather, investigators believe she killed herself because the resulting bullying, mostly by other students, made her life a living hell.

Nobody with any understanding of adolescent development would argue that statutory rape laws shouldn’t exist. If a 30-year-old has sex with a high-schooler 15 years his or her junior, there are inherent issues of power and control that no amount of consent can surmount. But if one partner is 15 and the other 17, it’s a fundamentally different situation. To brand the 17-year-old a sex offender — and even threaten jail time — says more about society’s attitudes toward teenage sex than about the conduct of the high school student in question.

To some degree, Massachusetts law recognizes these distinctions. In 2008 Governor Deval Patrick signed a law that toughened sentencing guidelines for statutory rape cases involving a wide age gap.

But the law that makes sex between consenting teenagers who are close in age a prosecutable offense is still on the books. Such laws are only enforced sporadically — sometimes in situations such as this one, when prosecutors are looking to make the toughest, broadest case possible against a defendant or group of defendants.

The statutory-rape law should be either aggressively utilized or modified to bring it in line with reality; sex between a 17-year-old and a 15-year-old should be a crime, or it shouldn’t. I’d argue that it shouldn’t, but at the very least this is a debate that needs to happen.

Jesse Singal edits The Angle, a new section of Boston.com devoted to commentary and conversation. Read it at boston.com/theangle.