In response to my first article, Legally Obscene the question arose about the difference between civil and criminal liability. The argument was posited that while the female perpetrator of a statutory rape can be held criminally responsible for her actions, the male victim was in fact a willing participant in the act and should therefore be held civilly responsible for child support. I disagree, both on legal and moral grounds.
Should a 15 year old male victim of statutory rape have an obligation to the child whether or not he was a “willing” participant? Consider for a moment that this were a female victim. Should she have an obligation to the child? The answer in our society is a definitive “no.” Where legal, any female can obtain an abortion for any reason whatsoever. Should she choose not to have an abortion, she may surrender the child for adoption and have her parental rights and responsibilities terminated with no further obligation to the child. This is true whether or not she was a victim of statutory rape or some other type of sexual assault or whether the sex was consensual. If a woman does not wish to take responsibility for her child, she does not have to and cannot be forced to unless she has already accepted that responsibility and acted as the child’s mother. This should be no different for men.*
The Fourteenth Amendment of the U.S. Constitution guarantees equal protection under the law for all U.S. citizens. It states “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Clearly, any law that provides that one group of citizens may abdicate their parental rights and responsibilities that is not extended to another group of citizens based solely on the sex of those citizens should be considered to be a violation of the equal protection clause of the 14th Amendment and as such should be considered illegal and unenforceable regardless of whether the law is criminal or civil. This argument alone should suffice. But wait, there’s more.
Should the 14th Amendment prove insufficient, the concept of consent should not. The difference between sexual assault and legal sex is consent. Consent is defined as positive cooperation in the act as a result of free will. It must be voluntary and with knowledge of the nature of the act and it may be withdrawn at any time, provided that the withdrawal is communicated. Breaking this definition into its components, one might ask whether there was positive cooperation, was it an act of free will, voluntary, and with knowledge and understanding of the nature of the act. If we assume the boy acted “willingly,” then we might assume his actions to be voluntary and exhibiting positive cooperation. We might also assume that he acted with knowledge of the nature of the act (This is debatable given his age and possible stage of cognitive development). But there is a fourth requirement; his actions must be the result of free will.
There is a natural power imbalance between adults and children that results in a natural hegemony wherein the child looks to the adult for guidance, advice, and leadership. This hegemony places the adult in a position to manipulate a child and influence that child’s actions and desires. In fact, this is a primary tactic of persons who are sexual predators (especially females who typically do not use force). It is referred to as “grooming.” This is a process in which an adult, who establishes an emotional connection with a child in order to lower the child’s inhibitions in order to prepare them for abuse. It is a form of psychological manipulation. Sexual predators are generally looking to exploit this power imbalance to wield power and control over their victims. Because the minor is in an inferior position and the adult in the superior position, the minor cannot be considered to be acting of free will. Therefore, consent is not possible and any “willingness” or “positive cooperation” on the part of the minor must be viewed as the result of the manipulation of the child on the part of the adult. This negates any willingness or complicity in the act of the minor-victim. Since the judicial decision in civil court was based on an erroneous view of “willingness” the court reached the wrong decision.
Finally, if one ignores the above and assigns civil liability to the minor-victim, the minor-victim should be awarded damages for the harm inflicted by the perpetrator. These damages should compensate the minor-victim for any physical, emotional, and monetary harm inflicted by the perpetrator as a result of her criminal act and should extend into the future. Therefore, if it can somehow be justified that the minor-victim is liable for child support, the perpetrator should be liable to her victim for an amount greater than or equal to that support.
By not offering equal protections to both male and female victims, this decision is in violation of the equal protection clause of the 14th Amendment of the U.S. Constitution. Further it demonstrates a lack of understanding of the dynamics between sexual predators and their victims and misinterprets the result of manipulation by the perpetrator as “willingness” on the part of the victim. It erroneously assigns civil liability to the victim of a crime for the result of that crime.
*I am not arguing here that a man should be able to force a woman to have an abortion or to give her child up for adoption. I am arguing that a man should have the same right as the mother to surrender his parental rights and responsibilities at any time prior to accepting the role of father and acting as such. I would also argue that if he is deceived into believing he is the father, he should have the right to terminate his rights and responsibilities upon learning of the fraud.
[box type=”info”] Crosson-Tower, Cynthia (2005). Understanding child abuse and neglect. Allyn & Bacon.
 Weber, Gregory M. (2010). Grooming children for sexual molestation. The Zero. Retrieved 10/04/2010 from: http://www.vachss.com/guest_dispatches/grooming.html[/box]