Four Defenses to Statutory Rape in the Military

Four Defenses to Statutory Rape in the Military

Statutory rape usually occurs between two people who want to have sex with each other. The problem, however,  is that one person is not able to give consent – simply because they’re too young to legally give consent to the act. That’s when charges for statutory rape can become a reality for one or both partners.

Jurisdictions Differ Regarding the Age of Consent

States treat the age of consent differently. Some states set an age at which a person is legally able to give consent to engage in sexual intercourse. In many states, the age of consent is 16. In some, it is 17 or 18 years of age. In California, the age of consent is 18.

Under federal law, it is statutory rape to engage in a sexual act with another person who is between the age of 12 and 16 if they are at least four years younger than you. Currently, the UCMJ does not exclude from its definition of carnal knowledge cases where the victim and accused are relatively close to the same age. The federal statute requires an age differential before criminal liability will attach. If convicted under federal law, a defendant could face fine, life imprisonment, or both.

Under the Uniform Code of Military Justice, the term “consent” means a freely given agreement to the conduct at issue by a competent person.

Charges for statutory rape may be brought under state law or federal law. And, you can potentially be court martialed for your actions. In any event, you will need to have the help of an experienced military criminal defense attorney.

Defenses to Statutory Rape

There are defenses available to statutory rape. Some jurisdictions recognize an exception in which both partners are close in age. Often referred to as the “Romeo and Juliet” exception, it pertains to sexual partners who are close in age even though one of them is under the age of consent. California has a partial Romeo and Juliet law that reduces the crime from a felony count to a misdemeanor.

Other common defenses to statutory rape include the following.


This defense can be raised when a party is actually over the age of consent. A, who believes herself to be 17, doesn’t realize that she is actually 18. A’s parents have never revealed her actual age. A and B have a sexual relationship and A’s parents are livid. A’s parents try to have B prosecuted for statutory rape. A is of the age of consent and so B cannot be prosecuted.  

Reasonable Mistake of Age

Reasonable mistakes in age occur. The strength of the defense lies in the circumstances. A, who is 15, gets a false ID showing her to be 18. A looks and acts older than her age. A has friends who believe her to be older as well. Some of those friends introduce A to B, who is 19. A describes herself as an 18-year-old. A even shows B her ID. B reasonably believes her. B may have a strong defense.


Being married to the person with whom you are having sex is a defense to statutory rape. Once consent has been given for a minor to marry and the marriage has occurred, the spouse cannot be prosecuted for the crime. Say partner A is underage but has obtained her parents’ consent to the marriage. A and B marry. A’s parents end up not liking B and can’t convince A to leave him. The parents bring an action for statutory rape against B. B has an absolute defense.

False Accusations

Innocence is always a defense. Since these sexual partners are most often desirous of their union, the accusation usually comes from elsewhere, most often parents or a guardian. Unless a couple is caught in the act, all the accuser has as proof is circumstantial evidence at best. Circumstantial evidence is evidence that requires an inference to connect it to a factual conclusion. 

For example, the parents may have multiple texts between the couple that may reference statements such as: “had a great time last night,” or “you looked hot,” or the like. But these statements are weak evidence of sexual intercourse.

Intent is not part of the legal requirements for conviction. But it is really meant to protect children and minors from sexual predators. The older the minor, and the less age differential between the parties, the stronger the defendant’s case. But always make sure that if charged, you get the legal help you need.