Child rape is a type of statutory rape, although child rape specifically is sexual intercourse with a minor who is below the age of consent. Different states call statutory rape by different names. It can be termed sexual assault, sexual misconduct with a minor, sexual imposition, etc. Some states go on to specify a different levels based on the age of the victim and the age of the rapist.

Even if an individual who is under the age of consent, says ‘yes’ and initiates sex with someone over the age of consent, the law says it is still statutory rape because the that younger person has no legal right to give consent.

What are the Elements of Child Rape?

While the statutes defining child rape vary from state to state, it is usually the act of sexual intercourse by an older person with a child. It is common for states to define it in a two-level approach:

  • Sexual intercourse with a very young child (exact age limit varies from state to state) is punishable at the level of forcible rape.
  • Sexual intercourse with an older person over the age of consent (especially if the man is older by a certain number of years) is usually considered a lesser degree felony.

What are the Penalties for Child Rape?

Child rape is called a “strict liability” crime, meaning whether the rapist meant to do it or made a mistake in doing it does not matter – the mere act by itself constitutes the crime.

Child rape is a felony, meaning prison time of more than one year can be imposed.  Penalties vary by state, the age of the victim, the age of the rapist, and aggravating factors such as assault and other violence. If the parties are consenting minors close in age, the crime can be reduced to a misdemeanor. 

Prison terms range from 1 year to life, although a sentence around ten to thirty years is typical. A variety of factors influence the prison term: age of the defendant, age of the victim, the defendant’s criminal record, the defendant’s relation to the victim, etc.

Can The Death Penalty Be Imposed For Child Rape?

In a recent Supreme Court decision, Kennedy v. Louisiana, it was ruled that the death penalty could not be imposed on a child rapist. The suspect was accused of raping his 8-year old stepdaughter, injuring her in the process, and calling a professional carpet cleaner to clean up the blood. Louisiana law, along with 6 other states, authorizes the death penalty for anyone convicted of raping a child under 12.

Why Did The Supreme Court Prohibit The Death Penalty For Child Rape?

However, the 8th Amendment prohibits any punishment that is excessively “cruel and unusual,” and which is “grossly disproportionate” to the crime. The Supreme Court held that the death penalty could not be applied to non-homicidal crimes. 

Here, child rape was said to be "devastating” in its harm, but could not compare to the “severity and irrevocability” of cold-blooded murder. However, some lawmakers argue that forcible child rape is worse than murder – the child carries those terrifying memories with her for the rest of her life, whereas victims of murder are presumably at peace.

Are There Any Defenses to Child Rape?

There are a few defenses to statutory rape:

  • Mistake of Age: The defendant can argue that he or she believed that the victim was over the age of consent. However, this defense varies from state to state. Some states hold that statutory rape is a crime of strict liability; it doesn’t matter what the defendant believed. Other states will limit mistake of age to certain circumstances. Other states will allow the defense if the defendant can show they had a reasonable basis for their mistaken belief about age.
  • Rape by Fraud: The defendant argues that the minor purposely misrepresented his or her age to have sex with the defendant. In other words, the defendant is the victim of the minor’s twisted desire to have sex with someone older than the law permits. This defense is very new, so it will be difficult to guess whether this defense has any legitimacy.
  • "Romeo and Juliet": Many states have exceptions to statutory rape based on the age difference between the partners.
  • Mental Incapacity: The defendant argues that they were insane.

Do I Need a Lawyer?

Child rape is a serious crime and can have serious consequences for both the victim and the defendant. If you think a child has been raped, report it to the police immediately. If you have been accused of child rape, you should consult a criminal lawyer right away.