Foster Care & Statutory Rape

I recently spoke with a former foster child, who is now a college-educated young woman. She revealed to me that, when she was 16 years old, her foster father raped her. He made a bet with her, and when she won, he "rewarded" her with alcohol.

I asked her if charges had been filed. She responded that her social worker knew that sex had taken place, but assumed that it was consensual. That was how the incident was documented in her case files.

I pressed on, "But it can't be considered consensual. That's impossible. You were sixteen and he was an adult. Legally, you were a child and unable to consent to this act with him."

In my opinion, that social worker should be held accountable for her severe lapse in judgement. I offered to help to legally pursue this matter. However, this young woman has not had enough time to heal. She is not now, and does not know if she will ever be emotionally ready to prosecute.

I told her that I would respect her decision, but remain available if she ever needed my support. Having had a similar experience at the same age, I found myself wanting to protect and defend her. But -- to tell the truth, I never pressed charges, either.

Statutory Rape
Rape is a charge that can be difficult to prove. If there were witnesses present, in most cases, the rape would not take place. Proving rape can be even more difficult if the victim is a foster child (remember the labels and stigmas discussed in my previous blog entry).

Laws vary widely in their definition of statutory rape and the legal age of consent. In Virginia, for example, carnal knowledge of a 13-14 year old is a Class 4 felony, while carnal knowledge of a 15-17 year old is a class 1 misdemeanor. (Strange distinction).

The rationale behind a statutory rape charge is that a young person, while biologically mature enough to desire intercourse, is not mature enough to make wise sexual decisions. This makes the young person vulnerable to an adult who tries to manipulate, deceive or coerce them.

It's also important to realize that minors are legally, economically and socially unequal to adults. They lack full legal rights. Typically, they are economically dependent wards of their legal guardians. Think of the implications for a young person in foster care.

Promiscuity Defense
The most common defense against a charge of statutory rape is the 'promiscuity defense,' demontrating that the girl has had other sexual partners.

Why would this make a difference?
As Michelle Oberman explains, "At its core, the promiscuity defense reflects a belief that, by virtue of multiple sexual partners, girls become less vulnerable to coercion, and in essence gain the capacity to consent to sex... (as if) there is no longer any compelling need for protective measures for the sexually experienced child."

In contrast, Oberman believes such promiscuity signals a history of vulnerability, rather than worldliness. She argues that, if it were true that girls were powerless until they lost their virginity, society would encourage them to have sex at a younger age.

The promiscuity defense also seems to state that, if a girl is not a virgin, any man alive has the right to have carnal knowledge of her. If she has willingly consented in the past, is she now denied the legal right to say no?

Coming of Age As A Young Woman
Michelle Oberman has asserted that, while both boys and girls share the crisis of adolescence, they experience it in different ways. Young men might seek pleasure and experimentation, while young women might be more motivated by a desire for emotional closeness and attention.

For young women, the physical changes of adolescences often represent a loss of control:
-Their body is changing before their eyes.
-Men around them begin to express desire.
-They begin to see themselves through the eyes of others.
-They measure themselves against impossible ideals.

To experience the physical changes of puberty within the instability of foster care is challenging for a young woman. It makes her vulnerable... emotionally, physically and sexually.

Sadly, there are older men in this world who take advantage of that kind of vulnerability.

Source:
Oberman, Michlle. Turning girls into women: Re-evaluating modern statutory rape law. The Journal of Criminal Law and Criminology, 85 (1994).

Virginia Department of Health website: http://www.vahealth.org/civp/sexualviolence/varapelaws/laws_rape.asp