Can consensual sex between teens actually constitute a crime in Oregon? Yes, it can, under a strict reading of Oregon statutes—which is just what the Salem-Keizer school district recently instructed its employees to follow. The district told employees that when they learn, or even suspect, that a student younger than 18 is sexually active, they must report it to law enforcement or state child welfare officials. This push for a strict application of Oregon laws intended to protect minors could, ironically, land teens in jail for engaging in consensual sex. And it definitely discourages teens from confiding in adults.
What is the age of consent?
Every state has a legally established “age of consent,” which is defined the age at which young people are considered mature enough to decide for themselves whether to engage in sexual activity. These age-of-consent laws are meant to protect youth from predatory adults. However, in Oregon, as in most states, the age-of-consent laws define the minimum age at which it is legal for a teenager to engage in sex, regardless of the age of their partner. In those states, sexually active young people have committed a crime even if both partners are below the legal age of consent.
Prosecuting a crime in which both parties meet the definition of a victim is problematic. In some states, the older of the two minors will be charged with statutory rape. Circumstances can become even more confusing for teens who are involved in a same sex relationship; legal definitions of sex vary by state and in some cases arcane sodomy laws could come into play.
What is the law in Oregon?
Oregon’s mandatory reporting laws require any school employee who becomes aware of or suspects sexual abuse of a child to report it to a designated authority or law enforcement. Oregon is one of 12 states where the age of consent is 18. And since Oregon defines sex broadly as any type of sexual contact, any sexual activity before the age of 18 is technically defined as abuse.
However, Oregon, like many states, has a so-called Romeo and Juliet provision in its age-of-consent law. Also known as a close-in-age exemption, this provision can be invoked to decriminalize sexual activity between consensual minors who are nearly the same age. In Oregon, both consensual partners must be at least 15 years old and no more than three years apart in age to qualify for a Romeo and Juliet exemption. Moreover, while this provision can be utilized in the event of criminal proceedings, it does not apply to mandatory reporting.
Where did it go wrong?
The Salem-Keizer school district’s recent emphasis on following the letter of the law has drawn attention to the potential for harm in Oregon’s child protection statutes. Regardless of their views on the dangers of teen sex, few adults would agree that all sex between minors constitutes abuse. Social science is clear that youth make better choices when they have access to a trusted adult for advice and information. Teens are unlikely to confide in adults when they believe the police will be notified about it.