Adolescent Sexual Behavior and The Law
by Joseph Shaub
Lisa is a bright, well adjusted, 15-year-old whose parents are going through a divorce. Mom suggested she see you for therapy to help with the adjustment to this family transition. One day, Lisa tells you that she would like information about birth control because she doesn’t want to use condoms any more with her boyfriend, Jason. She tells you that she and Jason have been having sex for six months. He’s a senior and will turn 18 in two months.
What do you do? Must you contact CPS? Has Jason (or Lisa, for that matter) committed a crime? Must you tell Lisa’s parents? Can you point Lisa in the right direction for getting birth control?
Today, sex between minors is criminalized, or not, depending on the age of the “victim” and the age gap between the participants.
For generations, adults have fretted about the changing mores of their societies’ youthful cohort – just as adults fretted about them when they were young. Making out and heavy petting were the now-quaint worries of parents of boomer adolescents. Now the questions posed by Lisa are common. According to the Research Center for Adolescent Pregnancy Prevention, in 2013, 47% of high school students reported having had sexual intercourse. (That was down from 54% reported in 1991.)
In the early days of our republic, the age of consent for sexual intercourse was 12 years of age, and in some places only 10. A reform movement which swept the country in the 19th century raised the age of consent to 16, where it remains in 26 states, including Washington. Other states have raised the age of consent to either 17 or 18. The purposes of these laws have, naturally, been to protect minor females from sexual exploitation from adult men. However, over the years concern arose over the similar treatment of a man of 40 and a teen of 17 who has sex with a 15 year old. Thus arose the “age gap” or “Romeo and Juliet” provisions of state rape laws.
Today, sex between minors is criminalized, or not, depending on the age of the “victim” and the age gap between the participants. In Washington, the laws regarding rape are found in RCW 9A.44. Rape of a minor (also called “statutory rape”) in the first degree occurs if the victim is under 12 years of age and there is more than a 24 month age difference between the participants. Rape of a minor in the second degree occurs if the victim is 12 to 14 years old and the age gap is more than 36 months. Rape of a minor in the third degree involves a victim who is between 14 and 16 and the age gap is at least 48 months. So-called Romeo and Juliet laws accomplish the same thing by giving the youthful offender a defense to rape if there is not too wide a gap in their ages.
So, to answer one of the questions above, since Lisa is 15, in order for Jason to be guilty of rape of a minor (3rd degree), he would have to be at least 19 years old. Jason can breathe a sigh of relief…at least insofar as criminal prosecution is concerned. One important reality for any person engaged in sexual behavior which might run afoul of the law is that, as one criminal defense lawyer assured me, prosecuting attorneys are aggressive in pursuing these kinds of cases.
For example, if I walked up and slugged you in the face and broke your jaw, the prosecuting attorney might initially charge an aggravated assault, but they may “deal” down to a lesser charge – maybe even a misdemeanor. In the realm of prosecutions for sex crimes, prosecutors take a harder stand and will not, generally, deal down to a lesser offense.
The next question is whether this behavior is reportable to CPS. In the excellent guide, Protecting the Abused & Neglected Child, developed by CPS, “sexual abuse” is defined as “committing or allowing to be committed any sexual offense against a child as defined by the criminal code.” Since sexual contact between appropriately aged adolescents who are close enough in age does not constitute an offense, this would not be a reportable incident, standing alone.
As one CPS supervisor advised me, however, if CPS were contacted, they would need to know a wider range of information, such as the circumstances in the home and whether there are any other risk factors. The gist being that sexual behavior of a minor is only relevant if it is part of a broader, consistent picture of parental neglect or abuse.
The next question is whether to tell Mom and/or Dad about Lisa’s disclosure. This brings us to the question of client confidentiality. I must admit that I have always had some difficulty with the assumption that a minor who is at least 13 years old is entitled to confidentiality.
The law that has always been cited for this proposition is RCW 71.34.530 which says: Any minor thirteen years or older may request and receive outpatient treatment without the consent of the minor’s parent. Parental authorization, or authorization from a person who may consent on behalf of the minor pursuant to RCW 7.70.065, is required for outpatient treatment of a minor under the age of thirteen.
I never understood how a minor’s right to obtain mental health counseling without a parent’s consent meant that this counseling was therefore confidential. If I bring in my 15 year old daughter for counseling, does that mean I am not entitled to inquire about the subject matter of the therapy, but I can if she is 12 years and 11 months? If any reader of this column can explain to me how this law is a confidentiality law, I would be deeply appreciative. You can reach me at the email below.
Of course, that being said, you’ll want to have a serious discussion with the parent before therapy begins in which the limits of disclosure and your need to protect confidentiality is understood as essential to your work.
Finally, Washington has no age at which a parent must provide consent for a child to obtain birth control. Any person in this state may do so without parental knowledge or consent.
Joseph Shaub is an attorney and licensed marriage and family therapist whose office is in Bellevue. His practice includes divorce mediation, emotionally focused couples therapy, discernment counseling, collaborative divorce coaching and consultation with mental health professionals regarding legal and ethical issues. His two-volume series: Divorce (or Not): A Guide is available on Amazon. You can reach Joe at firstname.lastname@example.org.
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