Neither “Consent” nor “Mistake About Girl’s Age” Are Defenses 

February 5, 2002

The law under which a boy can be charged with “statutory rape” in Massachusetts is Chap. 265 §23.  

It protects any person 15-years or younger from sexual intercourse, whether or not they consent and wish to have it. Although the law does not specify that only girls are protected, a District Attorney has great discretion as to when he will charge someone with the crime.  

If both of the teenagers are 15-years-old, the word is that most prosecutors will not prosecute the boy. Even if the boy is 16 and the girl is 15, most prosecutors will not prosecute in Massachusetts, we are told. But whether or not to prosecute is purely at their discretion.  

In the Braintree case, the Globe reports that some force was used by the 17-year-old boys against the 15-year-old girls but they also report that some of the intercourse was consensual. We don’t know who says that force was ever used, but one would assume that it was a girl. The teenagers all knew each other and there were no drugs or alcohol involved and it went on for months at the home of one of the boys. 

The courts have interpreted the law to hold that even a reasonable mistake by the boy as to the age of the girl is not a defense, nor is the fact that the girl consented to the intercourse a defense. 

If any boy does any “indecent” touching of a girl thirteen years or younger, even without intercourse, this would be a violation of Chap. 265 §13B. The law does not specify gender, but it has been used by law enforcement almost exclusively against boys. 

Therefore, the prudent thing for any boy is to stay away from having sex.  

In addition to the grave danger of sexual disease and unexpected pregnancy (from which you could be liable for the support of a child until his college years are over), there can be unpleasant surprises if the girl becomes angry at you for any reason. Your whole life can be ruined, as the four boys in Braintree are discovering. You could even find your name and photo permanently listed in the sex offender registry and be required to warn the local police that you are a sex offender whenever you move into a new community, probably for the rest of your life. 

The term “statutory rape” is commonly used because any law passed by the legislature is known in the legal community as a “statute.” Therefore, even though under the old common law rules, sexual intercourse between consenting parties would never be a “rape,” this has been changed by the statute enacted by the legislature to protect young people. 

Full Text of Laws (Statutes)

Chapter 265: Section 23. Rape and abuse of child.  Whoever unlawfully has sexual intercourse or unnatural sexual intercourse, and abuses a child under sixteen years of age shall, for the first offense, be punished by imprisonment in the state prison for life or for any term of years, or, except as otherwise provided, for any term in a jail or house of correction, and for the second or subsequent offense by imprisonment in the state prison for life or for any term of years, but not less than five years; provided, however, that a prosecution commenced under the provisions of this section shall not be placed on file or continued without a finding.

Chapter 265: Section 13B. Indecent assault and battery on child under fourteen; penalties; subsequent offenses; eligibility for parole, etc. Whoever commits an indecent assault and battery on a child under the age of fourteen shall be punished by imprisonment in the state prison for not more than ten years, or by imprisonment in a jail or house of correction for not more than two and one-half years; and whoever commits a second or subsequent such offense shall be punished by imprisonment in the state prison for life or any term of years; provided, however, that a prosecution commenced under the provisions of this section shall not be placed on file or continued without a finding.

No person serving a sentence for a second or subsequent such offense shall be eligible for furlough, temporary release, or education, training or employment programs established outside a correctional facility until such person shall have served two-thirds of such minimum sentence or if such person has two or more sentences to be served otherwise than concurrently, two-thirds of the aggregate of the minimum terms of such several sentences.

In a prosecution under this section, a child under the age of fourteen years shall be deemed incapable of consenting to any conduct of the defendant for which said defendant is being prosecuted.

Opinions of the Supreme Judicial Court

Consent is not a defense to charge of statutory rape.  Commonwealth v. Elder, 389 Mass. 743 (1983). 

A reasonable mistake as to the age of the victim is not a defense.  Commonwealth v. Knap, 412 Mass. 712 (1992).

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