Bryan Caplan  

Statutory Rape and Availability Bias in Virginia

PRINT
Gary Cohn as Fed chair?... Milton Friedman on Black Marke...
My home state of Virginia does not have a Romeo and Juliet law.  If an 18-year-old and a 17-year-old have consensual sex, the 18-year old is guilty of statutory rape.  As a result, I can easily see parents of teenage boys in Virginia feeling great apprehension.  Could their sons do hard time - and endure a lifetime stigma as a sex offender - for engaging in utterly normal adolescent behavior? 

Legally, the answer seems to be yes.  But what's scary about bad laws is not that they exist, but how they're enforced.  There's no point losing sleep over dead letters.  So how often does Virginia actually punish youths for statutory rape?  This official 2014 report report on crime in Virginia is most illuminating.  Key facts:

1. For all of 2014, the total number of minors arrested for statutory rape in Virginia was: 6.  Two were 16 years old; the rest were 17 years old.

2. For all of 2014, the total number of non-minors arrested for statutory rape in Virginia was: 104.  Of these, 11 were 18 years old, 16 were 19 years old, and 26 were 20 years old.  Arrests then sharply fall off.

3. 108 out of the 110 people arrested for statutory rape were male.

Is this number high or low?  Well, Virginia has roughly 150,000 males aged 15-20.  If you think that just 1% of them committed statutory rape under Virginia law, that's only a 4% probability of even being arrested.  I couldn't find any statistics on prosecutions or convictions, but I'd be surprised if more than a quarter of arrests led to conviction.  And if you think the prevalence of statutory rape is higher - say a violation rate of 5% for males aged 15-20 - that means a conviction risk of 0.2%.

Should Virginia have a Romeo and Juliet law?  Sure.  Are young men unjustly arrested and jailed?  A few.  But is the nightmare scenario a good reason to keep parents of young men awake at night?  Not really.  As the literature on availability bias teaches us, the human mind seriously overestimates the frequency of vivid events.  While parents of teens face many challenges, they should never forget their most powerful ally in the fight against paranoia: numeracy. 




COMMENTS (13 to date)
Lars P writes:

Three unrelated thoughts

1. Anyone who is legally a victim of statutory rape in Virginia can blackmail their "rapist", and there is no way to tell how common that is. So there are other things than direct legal consequences to worry about.

2. As far as we know, the Virginia authorities enforce all cases it hears about. It's just very rare for the "victim" to report it.

3. The 6 offenders that were underage themselves must also have been statutory raped. Maybe those were 3 couples, one of which was gay. But I suspect it's only enforced on the boys.

Rohan Verghese writes:

I'm not sure this technique is a good one. If you compared civil forfeiture, or drug law violations to the potential population as a whole, you'd get similarly low probabilities.

Does that mean that libertarians should stop caring about civil forfeiture or drug law violations?

Garrett M writes:
Rohan Verghese writes:

Does that mean that libertarians should stop caring about civil forfeiture or drug law violations?

Attention is a limited resource, so it would make sense for to allocate one's attention to issues that are both highly significant and highly alterable.

ee writes:

One case I've seen in VA featured a young gay couple. When the younger boy's parents found out, they pushed for prosecution of their son's boyfriend and the judge was very harsh on him. He went to jail for ~10 years.

I'm curious if gays are disproportionately arrested for this crime.

By the literal definition of the law, I would guess more than 5% of young men commit statutory rape. However I think the ~0% arrest rate isn't helpful when your partner's parents are targeting you.

I think it's also clear that a law is flawed if it is committed frequently and punished infrequently. Those are ripe conditions for weaponized discretionary enforcement.

roystgnr writes:

Assume for the sake of argument that we can indeed neglect the indirect damage that others have mentioned, and so the cost of not supporting a Romeo and Juliet law would indeed only be on the order of a hundred ruined lives per year. Now, what is the cost of instead supporting such law? Is it really so greatly in excess of the former cost that anyone who pays it is clearly afflicted with innumeracy, while anybody who didn't even think to calculate it is not?

Matthias Görgens writes:

I'm with Lars P here.

Lax enforcement doesn't make bad laws go away. They can still be selectively enforced against people who have the wrong political opinion or religion or skin colour.

And if the blackmail is perfect, that threatened enforcement won't ever show up in statistics.

John Thacker writes:

ee is completely right. These laws are pretty much exclusively used when one (or both) set of parents push for it, and things like being gay, or interracial, or sometimes simply much lower class than the other person involved certainly increase the chance of prosecution.

Hazel Meade writes:

I'm not sure if I agree. If these statistics were presented in a medical setting, a 0.2% risk of some medical complication occurring might indeed drive significant changes in medical procedures.

Even if the probability of arrest is small, the effects on that individual are devastating. The statistic you want to look at is something more like expected cost - probability times cost.

bill writes:

Good comments.
The laws are very well designed to be selectively enforced against out groups.

Matt C writes:
Rohan Verghese writes:

I'm not sure this technique is a good one. If you compared civil forfeiture, or drug law violations to the potential population as a whole, you'd get similarly low probabilities.

Does that mean that libertarians should stop caring about civil forfeiture or drug law violations?

In Bryan's defense, he said that parents of young men shouldn't be kept up at night by the possibility of their son being accused.

Virginia does permit minors (if both under 18) to have sex without penalty if they are both 15 or older or if they are less than three years apart in age. So in the case of 17- and 16-year olds being arrested, it's likely they were accused of having sex with someone more than three years younger.

B.B. writes:

I am puzzled.

If both partners are, say, 17 years old, is it still statutory rape? If so, would arrest both of them, or do we just blame the male?

Are there different laws involving same-gender sex?

Finally, does the law differentiate among types of sexual practices?

Miguel Madeira writes:

Lars P: «Anyone who is legally a victim of statutory rape in Virginia can blackmail their "rapist"»

In some sense, this is not one of the main purposes of a statutory rape law? To give the parents of "dishonored" 17 y.o. girls some leverage over their boyfriends (specially to force marriages)?

B.B. :«If both partners are, say, 17 years old, is it still statutory rape?»

Probably it has to do with the Matt C's comment: "Virginia does permit minors (if both under 18) to have sex without penalty if they are both 15 or older or if they are less than three years apart in age. So in the case of 17- and 16-year olds being arrested, it's likely they were accused of having sex with someone more than three years younger."

jseliger writes:

I wrote about this issue in a somewhat eccentric place, but you may find a footnote to this post useful:

As Judith Levine notes in Harmful to Minors: The Perils of Protecting Children from Sex: “One striking pair of contradictory trends: as we raise the age of consent for sex, we lower the age at which a wrongdoing child may be tried and sentenced as an adult criminal. Both, needless to say, are ‘in the best interests’ of the child and society.” We want teenagers to be adults when they commit crimes and “children” when they have sex, which tells you more about our culture than about teenagers.

And, as Laurie Schaffner points out in a separate essay collection, “[…] in certain jurisdictions, young people may not purchase alcohol until their twenty-first birthday, or may be vulnerable plaintiffs in a statutory rape case at 17 years of age, yet may be sentenced to death for crimes committed at age 15 [….]”

Laws, including those embodied in Face Forward, reflect race and gender norms: white girls are the primary target of age-of-consent laws, while African American youth are the target of laws around crime and delinquency. The contradictory trends are readily explained by something rather unpleasant in society.

POST A COMMENT




Return to top