Rape, statutory rape, and child abuse: legal distinctions and counselor duties

Professional School Counseling, June, 2003 by Clifton W. Mitchell, Reagan E. Rogers

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.

The purpose of this article is to explain the legal distinctions between rape, statutory rape, and child abuse and school counselors' obligations related to each. In addition, complicating issues such as cultural differences as well as the potential effect of mandated reporting on counselors' roles are addressed.

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.