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Talking to Teens about Sex & Sexting Ethical Boundaries

Section 9
Ethics: Rape, Statutory Rape, and Child Abuse:
Legal Distinctions & Counselor Duties

Question 9 | Test | Table of Contents | Adolescence/School
Social Worker CEU, Psychologist CE, Counselor CEU, MFT CEU

As a school counselor, what would you do if:

  1. During your third session with a 15-year-old female, she tells you that she is having mutually consenting intercourse with her 23-year-old boyfriend and that her parents are aware of the relationship and approve? What if her parents are not aware of the relationship and would not approve?
  2. A 15-year-old female reports that she is having sexual intercourse with her 16-year-old boyfriend?
  3. A 16-year-old female tells you that she was date raped by a 17-year-old male who is the star of the football team? She has told no one of this but you.
  4. A 17-year-old female tells you that she has been dating and having intercourse with a 36-year-old male and that they plan to marry? What if the parents disapprove? What if the parents approve and give their blessing?
  5. A 13-year-old tells you that she is having sexual relations with her cousin who baby-sits her on nights when her parents are working?

School counselors may struggle with reporting issues surrounding sexual behavior or victimization from sexual violence. School counselors' struggles may, in part, be a result of confusion over the legal specifics that distinguish the sex crimes of statutory rape, rape, and sexual abuse, and the concomitant legal and ethical duties for each. Most probably, the reason for the confusion is that many counselors have not been trained in the legal distinctions between these sex crimes and the concomitant legal and ethical duties. An additional quandary may arise regarding ethical duties because a strong sense that "something must be done" may be present when certain sexual behaviors or victimizations are revealed.

Although child abuse is covered widely in most legal and ethical texts, a review of nine popular legal and ethical texts revealed no discussion about rape, statutory rape, and the legal distinctions between these and sexual abuse and consenting intercourse. In addition, a search of PsychINFO revealed only three articles since 1967 in counseling or mental health journals that addressed statutory rape from a legal and ethical perspective.

Recent findings, indicating that significant numbers of teenage pregnancies were fathered by men more than 4 years older than their partners, have led to increased initiatives by the federal government toward enforcement of statutory rape laws by the states (Donovan, 1997). These initiatives include mandated reporting of statutory rape in some instances (Donovan, 1998). Concerns surrounding the implications of mandated reporting of statutory rape have begun to emerge in the family planning literature (Donovan, 1998; Miller, Miller, Kenney, & Tasheff, 1999). This trend is already affecting school counselors in some states (Davis & Twombly, 2000; Safenetwork, 2002) and provides additional impetus for education regarding counselor duties with regards to student sexual behavior and sex crimes.

Legal Distinctions and Duties Child Sexual Abuse
Although child sexual abuse laws vary, states define sexual abuse from the minimum definition standards created by the Child Abuse Prevention and Treatment Act (CAPTA; Jan. 1996). Under this law, a perpetrator of child sexual abuse is defined as "a parent or caretaker who is responsible for child's welfare" and sexual abuse is defined as:

The employment, use, persuasion, inducement, enticement, or coercion of any child to engage in, or assist any other person to engage in, any sexually explicit conduct or any simulation of such conduct for the purpose of producing any visual depiction of such conduct; or the rape, and in the cases of caretaker or other inter-familial relationships, statutory rape, molestation, prostitution, or other form of sexual exploitation of children or incest with children.

The key element that distinguishes child sexual abuse from other sex crimes is that the perpetrator is defined as being in a custodial or caretaker role (S. Cohen, National Clearinghouse on Child Abuse and Neglect Information, personal communication, March 27, 2002). Such roles are typically defined as a parent, relative, adult living in the home, baby sitter, neighbor, teacher, faith community leader, and coach. Not included in child abuse definitions are individuals whom one is dating or with whom one has a romantic relationship. Such roles are not deemed as a custodial or caretaker by the law. Further, under the law, one is prohibited from being in a romantic relationship if there is a custodial duty. However, statutory rape and rape can occur in dating or romantic relationships.

Rape and Statutory Rape
It is difficult to discuss rape and statutory rape laws without an explanation of the differences between the two. Conceptually, rape laws are more similar between states than statutory rape laws. Rape is generally defined as, "Unlawful sexual activity (especially intercourse) with a person without consent and usually by force or threat of injury" (Garner, 1999, p. 1267). Although it is recognized that definitions of rape include sexual behavior other than intercourse, for brevity, this article will discuss rape in the context of legally defined intercourse. Further, school counselors may deal with students who are involved with or who have been victimized by someone of the same sex. State laws may distinguish same sex (homosexual) intercourse from other sex (heterosexual) intercourse. Acknowledging the inequity of this distinction, this article will focus on laws that regard intercourse as some form of illegal sexual penetration.

States originally created statutory rape laws in order to protect young females from being preyed upon by adults because of an assumed developmental power differential that may exist when there is a large age discrepancy between sexual partners (Massachusetts Family Institute, 2000). Sexual intercourse by partners with certain age differences is considered statutory rape because the law declares that the younger party is incapable of consent by reason of age (Miller et al., 1999). Thus, in most states for example, a 16-year-old can legally consent to intercourse with a 17-year-old but not with a 23-year-old. Although the right of legal consent is taken away for sexual relations with partners with certain specified age differences, because statutory rape is non-forced, it is mutually consenting between partners (except, perhaps, as defined by South Carolina law).

It is the mutually consenting component that distinguishes statutory rape from rape, which includes force or threat of injury. In contrast to child sexual abuse, with statutory rape the older party is not perceived as being in a custodial or caretaker role, and, except in South Carolina, issues of coercion, persuasion, and enticement are not considered as components of the definition. 

Counselor Duties Duty to Report
It should be noted that rape, statutory rape, and child abuse are legal concepts with specifically defined legal distinctions. Thus, when child abuse is cited in ethical codes, school counselor duties are ultimately determined by state statutes. As will be addressed below, for most states, the definitions for these legal concepts do not overlap. When faced with issues surrounding these crimes, there may be confusion and emotional discomfort for school counselors. This is because what the law dictates is contrary to what may appear to the counselor to be ethically or morally appropriate. As these laws are studied, it becomes apparent that the need for legal council in such matters is essential.

All states legally require the reporting of child abuse (Welfel, 2002), as do the ethical codes of American Counseling Association (ACA; 1995). Except in the context of child sexual abuse, the ethical codes of ACA do not mention rape or statutory rape or any requirement to report. Similarly, outside of the context of child abuse, rape and statutory rape laws historically have had no required reporting component. Such is the case for most states; however, as a result of recent legislation, reporting laws in several states have changed.

The changes that have been implemented stem from new federal legislation that requires federally funded health clinic workers to report statutory rape of minor clients (Manzullo's Title X, 1998). As a result, several states have amended statutory rape laws in ways that include mandatory reporting. Specifically, California now requires the reporting of statutory rape in cases where the younger partner is 14 or 15 years old and the older partner is over 21 years old, or the younger partner is under 14 years old and the older partner is 14 years old or older (Safenetwork, 2002). Florida rewrote its laws to define consenting sex with a child under 16 with a partner 21 years or older as child abuse, thus mandating the reporting of statutory rape under the child abuse statute (Davis & Twombly, 2000). Prior to the new federal guidelines, Tennessee enacted a law encouraging, but not requiring, health care providers examining for pregnancy to report statutory rape; however, this law carries no penalty and does not apply to counselors (Statutory Rape Prevention, 1996). It should be noted that none of these laws mandate the reporting of rape, only statutory rape, and only then when certain criteria are present.

These law changes have resulted in concern and discussion with regard to health care and counselor duties. These concerns include the fact that most child welfare agencies were not designed and are not equipped to deal with statutory rape cases outside of the intrafamilial context (Donovan, 1998). In addition, issues have been raised regarding informed consent rights of those being counseled. It has been intimated that some workers faced with reporting dilemmas are careful not to inquire as to the age of sexual partners in order to avoid the responsibility of reporting. It should be noted that, if a state were to have a specific law mandating the reporting of statutory rape, such information would ethically have to be included in informed consent discussions and materials.

Another example of a mandatory reporting law with regards to sex crimes can be found in Tennessee law. In Tennessee, all sex crimes with a child below age 13 are to be reported to the Department of Child Services (R. Parris, Supervisor, Department of Child Services, State of Tennessee, personal communication, April 30, 2002). This is because 13 years is the age of consent for intercourse in Tennessee, and all sexual relations with a child below 13 are considered some form of a sex crime. Again however, if the younger party is 13 years of age or above and if the partner is not more than 4 years older and the sexual relationship is not in the context of child abuse (i.e., older party in a caretaker role), there is no legal mandate to report. For example, in Tennessee, counselors would not be required to report intercourse between a 15-year-old and a 23-year-old (statutory rape). In addition, counselors would not be required to report the rape or date rape of any client 13 years or older.

Although the specifics of each state's laws are not presented here, and although there is variance between states (Donovan, 1997), it is likely that they are similar conceptually. However, school counselors are strongly advised to learn the laws of their state or seek legal counsel when in doubt. To summarize reporting duties thus far, unless there is a legally mandated reporting law that specifically includes counselors as required reporters, or unless the laws of a state have been amended to include statutory rape as a form of child abuse, counselors are not legally or ethically obligated to report rape or statutory rape.

Other Reporting Dilemmas and Issues
There are yet other circumstances that further complicate reporting issues surrounding statutory rape and child abuse. These circumstances center around situations of extreme age differences and varying cultural norms. For example, when a 23-year-old has mutually consenting intercourse with a 15-year-old, it is likely easy for most to conceptualize the act as statutory rape. However, when a 37-year-old has intercourse with a 15-year-old, the act may be more difficult to conceptualize as statutory rape. This is because, as age discrepancies increase, those knowledgeable of the relationship and legal authorities may begin to view the relationship as more custodial and less mutually consenting as a result of the significant developmental differences in partners. If the relationship is custodial, then the act is child abuse. If the relationship is not custodial, the act is statutory rape. The question that naturally arises is, at what degree of age discrepancy does statutory rape end and child abuse begin?

This dilemma is further complicated when cultural differences are examined. Donovan (1997) noted that what most states define as statutory rape is accepted or even encouraged in some cultures. She points out that families "may promise their young daughter to a much older man, in part because he will help support the entire family" (p. 33). As our nation becomes more culturally diverse, there may be more conflicts with state laws that were built on more traditional Western culture. Although statutory rape commonly carries no mandate for reporting, child abuse does. Depending on the circumstances, it appears likely that some condoned cultural practices may be difficult to distinguish from the legal definition of child abuse. Is a young daughter who is promised in marriage to an older man being abused if such a practice is common within that culture? As counselors, we are ethically called to honor cultural diversity, and we are also ethically called to report child abuse.

Decisions regarding the legal distinctions between child abuse and statutory rape are not the domain of counselors and are best left for the courts to debate. As noted, if school counselors find themselves knowledgeable of situations where age discrepancies between mutually consenting sexual partners are questionable, they should call their local department of child services or prosecuting attorney and present a hypothetical case describing the circumstances. After receiving legal guidance, they can decide whether or not to report formally. In relation to the age discrepancy issue, it should be noted that two states, Delaware and Georgia, recently changed their statutory rape laws and increased penalties with larger age discrepancies between partners (Davis & Twombly, 2000).

Answers to Quiz
It is sometimes difficult to differentiate the nuances of sex crime laws. Thus, for clarity and to provide closure for those still seeking answers to the questions presented at the beginning of this article, each will be addressed here. The initial questions were designed such that, to the best of our knowledge, the ages of those involved would result in the answers being universal for all states. However, please note that statutes could have changed and, even though there was considerable effort to substantiate accuracy, researching these laws is difficult, and the information presented could contain errors.

  1. This is statutory rape because the younger party is under the age of consent relative to the age of the older partner. Currently, two states (California and Florida) mandate reporting of statutory rape under certain circumstances, otherwise it does not have to be reported regardless of parental knowledge or approval. Of course school counselors should address students' issues surrounding the relationship, STDs, and birth control. Counselors could also inform their client that this is statutory rape under the law and could result in a jail sentence for the older partner.
  2. The behavior in the second question is consensual and is not classified as rape, statutory rape, or child abuse. This is because the two parties are old enough to legally have sexual relations relative to their age differences. The age difference between the two partners is not large enough to constitute statutory rape. This behavior is not required to be reported.
  3. This is rape because there was force or threat of injury. However, school counselors are not required to report this case to anyone because the student was not of such a young age that the crime was considered reportable regardless of circumstances. Counselors should deal with all psychological issues involved and address concerns related to revealing the rape to others. The client nevertheless controls the confidentiality. Actions surrounding how to deal with the rape should only be implemented after careful professional judgment that takes into consideration information received from confidential consultation and a consideration of the client's desires.
  4. This is the most ambiguous scenario presented. At the least, the act is statutory rape which does not have to be reported, except in California and Florida. However, this could be construed as child abuse because the age discrepancy between the parties is so extreme that the older party may be presumed to be in a custodial role. Consult your local child services department or prosecuting attorney for advice on how to proceed. Parental approval and cultural customs may play an important role in how the relationship is construed by the deciding authorities.
  5. This is child abuse because the older party is in a custodial role. Consent is irrelevant because the law presumes that the baby sitter has certain caretaker responsibilities that should be honored and has control over the younger party. Report immediately to the proper authority.

- Mitchell, Clifton & Reagan Rogers; Rape, Statutory Rape, and Child Abuse: Legal Distinctions and Counselor Duties; Professional School Counseling; June 2003; Vol. 6; Issue 5.

Personal Reflection Exercise #2
The preceding section contained information about the legal distinctions and counselor duties regarding rape, statutory rape, and child abuse.  Write three case study examples regarding how you might use the content of this section in your practice.

What should be the counselors actions regarding a 13-year-old who tells you that she is having sexual relations with her cousin who baby-sits her on nights when her parents are working? Record the letter of the correct answer the Test

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