Is it criminal for an adult to have sex with a teenager?
In Alabama, the age of majority is, let's say, confusing - it is 18 for some actions (in recognition of the federal age of majority of 18), 19 for other actions, and 21 in general.
The age of consent to sex in Alabama is 16, which is under the age of majority - in other words, sex with a minor over the age of 16 in Alabama is not a crime.
- Is it good law to allow adults to have sex with minors over the age of 16?
- Is it good policy?
- Do minors over the age of 16 understand the full consequences, in our modern society of having sex with an adult?
I do not think so, as to all of these questions.
Yet, people of the State of Alabama apparently think otherwise, since their legal representatives enacted such laws.
At the same time, people of the State of Alabama made a crime for school personnel what it did not make a crime for anybody else - sex with a minor over the age of 16, but under the age of 19.
Such a crime is, under Alabama law, a B felony, and carries a punishment from 10 to 20 years in prison (and, of course, loss of rights to ever work in school).
Is it a good idea to make sex with a minor over the age of 16 a crime?
My personal opinion - yes, it is. Parents should be able to send their children to school, assured that the school protects their children from sexual predators, not exposes them to such predators. Without such a statute, school will become a breeding ground for sexual predators.
Yet, my personal opinion is also that it is NOT a good idea to NOT make the same conduct a crime for everybody else - because it opens the door for challenges such as just was made in Alabama.
A former teacher is now challenging constitutionality of this "crime only for teachers" law on equal protection grounds.
Prosecution opposes the argument since discrimination is not based on "race, alienage or gender", simply on occupation.
Criminal laws, especially laws carrying such steep punishments as 10 to 20 years in prison, must be free of identity-classification.
If you are a school teacher, it is a crime for you to have sex with a MINOR (let's not forget that - the age of majority in Alabama is 19 to 21 depending on the issue).
If you do not work in school, it is not a crime for anybody else to, once again, have sex with a MINOR.
While trying to protect children in school from sexual predators, Alabama lawmakers failed sorely in protecting children from sexual predators out of school - where such predators are, likely, more difficult to detect, and that is not a good idea.
What states should do (my personal opinion) is TWO things:
1) prohibit identity-specific criminal prosecution of any kind, by a separate change of state Constitutions, if necessary - identity-specific criminal laws (it is a crime to do a certain thing if you are employed as an A, but not a B) are a bad idea, as such laws undermine people's perception and recognition of conduct as criminal, if it is criminal to some people, but not others; and
2) make the age of consent the same as the age of majority, otherwise it simply makes no sense. No adult, anywhere, should be allowed to have sex with a minor, whether that adult is a teacher or not a teacher.
Such changes will not help in the particular case, one way or another, as laws do not work backwards, at least in criminal law, so the challenge will rise or fall on its own, whatever the Alabama Legislature may decide to do.
By the way, in the state of New York where I lived for 16 years and practiced law, there is also such a discrepancy:
- the age of majority is 18 for most issues, 21 for cut off of child support, and
- the age of consent is lower - 17, so it is lawful to have sex with a 17-year-old minor, which, again, makes no sense.