Virginia’s Age of Consent Defined
The age of consent is simply the age at which a person can consent, i.e., agree, to sexual activity. If a person participates in sexual activity with a person below the age of consent, then that means that person is not consenting to sexual activity. The law demands consent be given before sexual activity, and if it is not, it can constitute a crime of sexual abuse.
The general rules regarding the age of consent in Virginia are these: anyone who engages in sexual activity with someone under the age of 18 will be charged with unlawful carnal knowledge of a child, which can be a misdemeanor or felony crime, depending on the circumstances of the situation. And sex crimes involving minors are very serious offenses that can lead to a number of penalties, including being registered as a sexual offender, which can be a life-changing event for anyone convicted.
The legal age for sexual consent is set by Virginia criminal law statute, § 18.2-63, "Taking indecent liberties with children," as follows: Any person 18 years of age or older who with lascivious intent commits any act of moral turpitude with or in the presence of a child under the age of 13 shall be guilty of a Class 5 felony. For purposes of this section, taking indecent liberties with a child includes, but is not limited to, the following:
A . The touching with the complaining witness of either the accused or such a child without the use of a weapon or under the pretense of medical treatment or examination; or
B. The inducing or causing of the complaining witness of either the accused or such a child to touch, either directly or through the clothing, the accused’s own body or the body of such complaining witness or child, or the touching of the complaining witness or child by the accused; or
C. The requesting of the complaining witness of either the accused or such a child to engage in specified sexually explicit conduct or to make such a complaining witness or child engage in either:
1. A sex act against such a person; or
2. A sex act against a third person.
The law goes on to state: "For the purposes of this section, ‘complaining witness’ means (i) the person under the age of 13 with whom the offense has been committed or (ii) the person under age 18 and related to by blood who makes such a report to a law-enforcement officer or a child-protective services worker that such offense has been committed. For the purposes of this section, ‘sex act’ means sexual intercourse, anal intercourse, oral intercourse, masturbation, or the touching of the genitals or anus of either party by the other with the intent to arouse, or to gratify the sexual desire of either person."
Exceptions and Legal Implications
Because of those statutory exceptions, the law isn’t going to determine whether a relationship violates the age of consent statutes unless both parties are significantly out of that window. For example, if a 16 year old is dating a 17 year old, there isn’t much to address. As a practical matter, the real risk in such a situation is that a parent of the 16 year old objects and ends up telling your parents what you’ve been doing, which can get you both in trouble, but criminal implications are minimal.
If the relationship is a little more risky, things get more serious. So long as the victim is older than 13, and as long as the defendant is not a significant age older than him or her, there will probably be no criminal implications, though still some familial issues.
But if the victim is under 13, the reality is that even if both parties are actually consenting, it is going to be difficult to avoid criminal culpability. From a criminal law perspective, the law does not permit an exception when the victim is under 13.
Penalties for Violation of Age of Consent
If one of the people charged with having sex with a minor is a person who is less than three years older than the minor, there is a possibility that the charges could be a misdemeanor. If the person is more than three years older than the minor, the crime is a felony. An even more severe charge applies if the person charged is a military member or where the victim is a family member. Assuming that the person charged is not a family member, the penalties for violating Virginia age of consent laws are as follows:
If the act was done with a family member, there is a class 4 felony conviction.
If there was an age difference while the minors were in high school, there is a class 4 felony conviction.
Under Virginia law, the penalty for a misdemeanor is up to a year in prison and a fine of $2,500. Mandatory minimums apply in felony convictions for violating the age of consent law, ranging from five to 30 years in prison.
The penalties are the same whether or not there is any force used during the commission of the crime. What this means is if the offender goes to trial and a jury returns a guilty verdict, there is no range of penalties or options available to the judge when deciding things like suspended sentences.
Virginia does have a "Romeo and Juliet" exception. If there is less than three years separating the ages of the two people involved, the charges could be dismissed as long as both of the parties are old enough to consent and there are no other illegal actions involved, such as deception or coercion.
Many defense options exist to challenge the charges in court, and there are many ways to avoid a conviction altogether. However, given the extreme penalties that apply in cases like these, it is essential to work with an experienced Virginia sex crime attorney to maximize your chances of receiving the best possible outcome in your case.
Changes in Age of Consent Laws
In 2018, the Supreme Court of Virginia granted a writ of mandamus to defendants who challenged the application of an outdated law that defined the age of sexual consent as the age of 10, regardless of gender.
This change came shortly after two teenagers were sentenced to jail time after having sexual intercourse. The criminal court noted in its ruling that those ages could consent to sexual intercourse under existing law. This section, § 18.2-63, was in direct conflict with § 18.2-61, which defined the age of consent to be 18 years. The law in question was enacted in 1860 and therefore denied equal protection of the laws because it criminalized sexual offenses only against females, while completely exempting males from criminal liability . R. F. v. Commonwealth.
Current law stipulates that the age of consent is 18 years of age, which means that any sexual relations with a person under 18 may be considered statutory rape. The offender need not have been aware of the other party’s age for the crime to apply.
Additionally, § 18.2-371.1 (concerning the reporting of medical claims of sexual abuse) was subjected to further clarification so that the public did not perceive it as a law that made marriage prohibited for minors under 16 years of age. This was done on July 1, 2018.
Factors that Impact the Age of Consent
Several factors have emerged as central to the discussion on the age of consent and the definition of whether sexual relations between minors and adults are illegal "statutory rape." While the minimum ages for lawful sexual contact under Virginia law are 13 and 15, Virginia state legislators want to change the current age of consent statute from 13 to 18.
Perhaps the most significant social factor that figures into varying perceptions of the age of consent is the level of understanding possessed by minor teenagers regarding sexual activity. Some argue that 13-year-olds are physically, psychologically, and emotionally suited to engage in sexual activity; that is, except if their partners are older than 18 in which case, the minors are not sophisticated enough to be considered willing participants.
Other factors that influence views on the age of consent include whether or not the minor is a virgin at the time of sexual contact; whether drug, alcohol, or intoxicants were used to produce intoxication or diminished capacity before engaging in sexual conduct; and whether or not the sexual conduct was deviant or involved inappropriate types of sexual contact.
The age of consent can also depend on regional or community perceptions of age appropriate behavior. Whether any given area tolerates or disputes sexual congress between minors and adults usually is dictated by the general climate of the community. For instance, religion plays a significant role in the perception of age when it comes to the age of consent, and communities in which religion is dominant will reflect differing views than those where it is less common.
Successful manipulation of any of these factors could result in a less significant legal sentence or punishment for any convicted statutory rapist. However, any sexually motivated or deviant behavior involving minors is a serious offense in Virginia and should be broached with extreme caution.
Seeking Legal Assistance
It is important to note that if you are a person who thinks you may potentially be affected by this law either because you think your child’s partner might be above or below the age of consent, or because you know that your partner is above or below the age of consent, you should speak with an experienced family law attorney. This is especially true for parents of children who may not yet be above the age of consent, or those who have attractive nuisances on their properties (e.g., pool, hot tub). Additionally , minors considering sexual activity with significantly older partners should be aware of the legal definition of consent as well as resulting criminal penalties. Experienced attorneys can provide counsel on how family members (i.e., parents, siblings) can report and testify against abusers while protecting the identity of the victim or preventing them from feeling the need to confront their abuser. If you find yourself being investigated for issues related to the legal age of consent, it is incredibly important you consult with an experienced family law attorney to assist you in preparing statements, determine what evidence may be admissible in court, and answer any questions you may have regarding the laws that apply to your situation.
