AmyTuteurMD

AmyTuteurMD
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Dr. Amy Tuteur is an obstetrician-gynecologist. She received her undergraduate degree from Harvard College and her medical degree from Boston University School of Medicine. Dr. Tuteur is a former clinical instructor at Harvard Medical School.

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MARCH 9, 2009 10:22AM

Does statutory rape discriminate against boys?

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A sharply divided Massachusetts Supreme Judicial Court recently issued a ruling with head spinning legal and ethical implications. The question at issue: do statutory rape charges discriminate against boys? According to the SJC, that claim can be raised in a defense against the charge of statutory rape.

The facts of the case are not in dispute. According to The Boston Globe:

The case … involved a high school freshman football player who is accused of engaging in various sex acts from August to October 2007 with three girls. Two were 12, and the other was 11.

"None of the complainants reported being afraid of the boy's behavior," Chief Justice Margaret Marshall wrote for the majority.

The law on statutory rape is quite clear:

Whoever unlawfully has sexual intercourse … [with] a child under sixteen years of age shall … be punished by imprisonment in the state prison … [or] any term in a jail or house of correction …

Additional case law has further refined the requirements of the statute:

The offense of statutory rape … may be committed with or without any knowledge on the defendant's part of the age of the victim.

Consent is not a defense to a charge of statutory rape.

The only elements the Commonwealth must prove are (1) sexual or unnatural sexual intercourse with (2) a child under sixteen years of age.

Based on the facts of the case, and the law, the District Attorney charged the boy with statutory rape. There is no question that the acts occurred, no doubt about the age of the girls, and no defense in claiming that the acts were consensual. Therefore, the boy’s lawyer offered a novel assertion: Since all parties were under the age of consent, prosecuting only the boy is sexual discrimination.

The boy’s lawyer should be commended for offering a novel defense. The SJC should have their collective heads examined for agreeing with it.

The theory behind statutory rape law is that children under the age of 16 are incapable of giving legal consent to sexual activity. They may desire such activity, and they may be willing participants, but their consent carries no legal weight. That’s because they are too young to understand the implications of sexual activity, and, by virtue of their age, are easily manipulated by those who are older. Although the law traditional was originally intended to protect young girls, it has been extended to protect boys as well.

In recent years, the dramatic increase in teen sexual activity has led to a reappraisal of statutory rape laws. So called, “Romeo and Juliet” exceptions have been added in many states. Generally, these exceptions allow consensual sex between partners over age 15, provided that one partner is not substantially older than another. In states with “Romeo and Juliet” exceptions, sex between a 15 year old girl and her 17 year old boyfriend is not statutory rape, but sex between a 15 year old girl and her 45 year old softball coach would still be considered statutory rape, regardless of whether the girl consented.

The statutory rape laws are gender neutral. Sex between a 15 year old boy, and his 45 year old coach is also statutory rape. Most prosecutions for statutory rape are against men and boys, because the male is usually the older party and because the male often initiates the sexual contact. The Massachusetts SJC has essentially ruled that this disparity in charges is evidence of sexual discrimination.

The boy’s defense received the support of an amicus (friend of the court) brief filed by the Women's Rights Project and the Reproductive Freedom Project, which are part of the American Civil Liberties Union. According to ACLU lawyer Sarah Wunsch:

"We should not be enforcing the law based on stereotypical notions about girls as not being capable actors in the same way that boys are... They are doing what teenagers are doing today. They are fooling around sexually, and the girls are participants in the same way that boys are."

Wunsch said statutory rape laws are rooted in an old concept that a daughter was the property of her father. Echoes of that thinking can be found today when prosecutors criminalize sexual activity involving girls, she said.

"Our view is that there is still a very strong pattern of district attorneys charging based on the notion of having to protect girls," Wunsch said. "But girls can enjoy sex and be sexually active. They are not simply victims."

Have these people lost their minds? The three girls in this case are in elementary school! Claiming that girls in elementary school  “can enjoy sex and be sexually active” is a willful misrepresentation of everything we know about children and their decision making abilities.

It is instructive to consider why lawyers for the Women’s Rights Project are willfully misrepresenting the ability of young girls to give consent to sexual activity. In their minds, they appear to believe that they are striking a blow for women’s rights. Hence Wunsch’s mention of outmoded ideas of girls as the father’s property and women as incapable of enjoying sex.

In an effort to protect women, Wunsch, and the SJC are willing to sacrifice young girls. Both willfully ignore the contemporary pressure toward early sexualization of young girls, and the cultural pressure for girls to accede to the demands of boys, whatever those demands might be.

Moreover, the SJC and Wunsch willfully ignored the ages of the girls and the age difference between the girls and the boy. The boy was charged because he was older, significantly older. He was in high school; they were in elementary school. He was not charged because of repressive ideas about female sexuality, and it is disingenuous at best to make that claim.

This case is about child protection, not about female sexuality. Elementary school girls are incapable of giving consent to sexual behavior, period. Elementary school girls can and should be protected against the sexual advances of older boys and men, period. It is astounding that the majority on the SJC could not tell the difference. In their misguided attempt to advance women’s rights, and fight sexual discrimination, the SJC has willingly sacrificed young girls to the predatory advances of older boys and men.

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Yes, I think some statutory rape laws discriminate against boys -- in general. Or, at least they did when I was a teenager.

However, in this case, I don't feel that the defense has merit, given the age difference between the subjects. I have an 11 year old daughter, and while I can't speak to any biological evidence that she may or may not enjoy sex, I can definitely tell you that she isn't competent enough to weigh the consequences of sexual activity.

On another note: where the hell were these children that a high school student was able to have sex with them?
While very well intended, the author is either severely disconnected with the reality of pre-teen girls or just doesn't have any children. The fact is, little girls, even those in elementary school, are just as capable of making crappy decisions as are boys. Most people recognize that girls mature earlier than boys. I think we are not giving these young ladies credit. At this age, girls can be calculating, conniving and otherwise precocious. That doesn't mean they should be allowed to behave this way. It doesn't mean that I am in any way condoning their activity.

But I am wondering why it's always the male that only gets in trouble. There was a case in Georgia where a young man (17) was convicted of Statutory rape of his girlfriend (14). He got a year in jail. He might have gotten a football scholarship. He was a good kid that made a poor decision. He was initially charged with rape. Luckily for him, the jury wouldn't buy it. But the young woman came to him to (allegedly) have consensual sex. Regardless, in this circumstance, it takes two people. Unless there is violent coercion, it is consensual. Both parties should be punished for their part. This way there is more incentive for both parties to consider their actions.

Or, maybe we should just stop trying to legislate the sex lives of teens and just be better parents.
Ummm, I was only 14 for basically my whole freshman year of high school...I am not saying 14 and 11 is acceptable, but the article plays up the whole football player/high school angle, as if this was an 18 year old on his way to grab a diploma and play linebacker at USC.
Living in Canada, we have rather different laws regarding this. This is no statutory rape law, per se. here, but offences regarding sexual touching or interference.

Still, in this case, I would suggest that an examination of the individuals involved would show you what most parents already know. Young men of that age are rather immature, and young women of their ages are attempting to be very mature. I am not condoning this behavior in any way, and if my 13 year old son or 11 year old daughter were to be involved in this sort of thing, I would be very disappointed. But, I would not feel that involving the law would be of any benefit, and it may cause even more disruption to the lives of the parties involved.

I believe that parent disciple would be the most appropriate route, perhaps with support from professionals from the health and education sectors.
If they want to argue that sex is okay with a 12 year old then they need to get state legislatures to change the laws, right? Good luck finding a legislator willing to introduce that bill.
I think it's interesting that you at no point mention the age of the boy involved, which was also an important factor in the case, and which seems relevant to your commentary.

The boy was 14. When I was 14 my voice hadn't even broke yet. "High school football player" makes this kid sound like Matthew McConaughey in Dazed and Confused.

Maybe this young boy was predatory, I don't know. But maybe it was a case of teenage hormones and consensual sexual curiosity going too far.
In the Georgia case, the young man was black and the girl was white, and likely the element of race was in there too.

About this, I am inclined to think it a case of sexual experimentation with a young teen and three almost teens, and that a charge of statutory rape is pretty silly.
What I don't understand about consent laws is two seemingly contradictory things. A person under age X is considered incapable of giving consent to sex, i.e. they're not adult enough, but that same person, if they initiate sex with another under-age person, is considered adult enough to charge with a crime. What's with that?

This 14 year old boy would be considered incapable of giving consent to sexual advances from an adult, but if he makes sexual advances to another child he's guilty of a crime.

Either a person is capable of making decisions about sex or they're not. It shouldn't depend on whether they're initiating or consenting.
I didn't see anything in this post or in the newspaper article to indicate how the law is supposed to be applied when both parties are under 16. In other words, I didn't see anything that said that the older child is the one presumed to be the offender.

For example, what would happen if the 14 year old boy had sex with a 15 year old girl. Who gets prosecuted now? Both are under 16. The girl is a year older, but is there anything in the law that makes that a significant factor?

The point here is to follow the law based on what the law says, not on what one might wish that it said. If it's a felony to have sex with a minor, and two minors have sex, prosecute both. If you're not going to prosecute one minor, don't prosecute the other. If you don't like either of those options, then change the law.
Reading thru the comments, below it becomes clear that the law should be able to bow out leaving the situation to the parents when the age difference is small, when the age difference is almost small, then the judge should be given the right to be a judge, and only when the age difference is large should the judge's judgment be largely restricted to just how much jail time to administer. Even then, the judge should never be completely restricted, otherwise why use a judge at all?
I think it should be a crime only if the male is three years older than the female.

Read about a nineteen-year-old who was convicted if having sex with two seventeen-year old girls. In this country, if you are labeled a "sex offender," you may as well kill yourself. Which is exaclty what this young man did.
several states have the 3 year rule...as long as both are under 17 and within 3 years of each other, statutory rape does not apply. For most of human history, and still in many places, the onset of puberty meant the begining of sexual activity.
The problem is that the boy is also under the age of sixteen.

Unless he's been held back, a high school freshman is 14 years old. That makes him two years older than one of the girls and three years older than the other. Considering that girls generally physically mature a year or two faster than boys, it's likely that he sees these girls as his peers.

I was French-kissed by the 15-year-old neighbor boy when I was 12, and if I'd wanted to, I probably could have had sex with him back then. (I didn't, because he was a dumbass who physically repulsed me.) It wasn't that I was some innocent little thing and he was a sexual predator--we were both just stupid kids.
Also, while most states and communities consider elementary school to be grades K-5, middle school grades 6-8, and high school 9-12, there are still places that define elementary as grades K-8. Massachusetts may be one of those places. That's an important distinction, because according to the article, the youngest girl in question was "two grade levels behind" the freshman football player. That would make her a seventh-grader and him a ninth-grader.

I don't know for sure what happened here between these kids, but I do remember being a seventh-grader, and I knew a LOT of girls who, if given the chance, would initiate sex with a boy two grades ahead of them--whether from the social prestige that comes from having an "older" boyfriend, curiousity, puppy love, the thrill of power that comes from being able to grant/withold sexual favors from someone who really, really wants them, or just the age-old combo of bordeom, lack of supervision, and teenage horniness.

It isn't just the boys who are walking bundles of hormones and stupidity at that age. While I'm in no way condoning what these kids did, all the parties involved are KIDS of about the same mental and physical age. He isn't a forcible rapist, and he isn't a pedophile.

Labeling this boy a sex offender cheapens the label.
Excuse me, but why are you leaving out a critical bit of information - the age of the boy? If he is the same age I was as a freshman, he is 14, 2 years older than one girl and 1 year older than the other. I don't agree that that's "significantly older," especially given that girls tend to mature faster than boys.
Leeandra Nolting brings up an interesting point: "...according to the article, the youngest girl in question was 'two grade levels behind' the freshman football player. That would make her a seventh-grader and him a ninth-grader."

So not only do you avoid mentioning the relevant fact that the boy in question is 14--instead misleadingly referring to him only as a "high schooler"--but you also seem to be misrepresenting the grade level of the girls involved. A high school football player having sex with elementary school girls!?! Oh, the manufactured outrage!!
So upon turning 14 you magically become more mature and should kjnow better? "the girls are in elementary school!!!" - and so was the boy a few months ago.

When both parties are under the age of consent, and no coercion can be proved, I concur that it's hards to understand how you prosecute one side but not the other.
I can't count. 2 and 3 years. But still, the point is the same.
Let's do some thought experiments. Suppose the boy was a 44 year old man. Should he be charged with statutory rape? If the 11 and 12 year old girls could give "consent" to a 14 year old, why shouldn't their consent to a 44 year old be treated exactly the same way?

Here's another thought experiment: Suppose the 11 and 12 years olds were boys, and the 14 year old was also a boy. Could those boys give "consent" to sexual activity with a 14 year old?

Does it matter who initiates the sexual activity. Suppose the 14 year old told the 11 and 12 years olds (girls or boys) that he was going to teach them a new game, that it was fun, and that they should keep it a secret from everyone else. If the younger children agree, have they given "consent."

Does the level of understanding of the younger children matter? Suppose they gave consent to playing a "game" but they didn't realize that the game was no game at all. Most sexual abuse of minors starts with such "games." It is only over time that a young child begins to realize that he or she has been victimized.

My personal feeling is that no 11 or 12 year old is capable of giving consent to sex, period. Anyone who has sex with an 11 or 12 years old, regardless of his age, is taking advantage of them and has committed statutory rape. The fact that many more boys than girls are charged merely reflects the fact that boys are much more likely to prey on younger girls, not any form of discrimination against boys. As I said above, the lawyer who advanced this theory should be commended for creativity. The justices, on the other hand, should be embarrassed to have fallen for it.
This specific instance is difficult to judge without knowing more about it. Factors such as how well the girls and the boy knew or didn't know each other at the time of the incident is one. The story doesn't say. Also, we don't know if these girls look their age or are further developed at an early age.

Still another factor would be the exact location where the act took place. Was it at the home of the boy? Of one of the girls? Did it take place outdoors at a hidden location? This would also have a bearing on the outcome.

Let me put this another way. People are judging without all of the information. If this took place in the bedroom at the boy's home, it means the girls were there on their own and the boy shouldn't be held totally responsible for this. But if it happened in the field house of a park, then it would be a much different story.
If a child of X years is not adult enough to consent to sexual activity, he/she is not adult enough to be charged with statutory rape.

Thus the 14 year old boy in this case should not be charged.
The basic biology should form the legal foundation. Puberty should be the dividing line and this is not age specific. Post puberty, women except lesbians of any age often do not always engage in sex for pleasure. Orgasms don't come easily for many. Guys here is a hint. Start thinking like a Lesbian. (This is a whole other blog) The cynical view is that sex for women is often rape, prostitution, procreation or duty. (Go ahead - rant. This is a huge exagerration for effect I admit. But it is not ignorance that created this attitude it is a wealth of experience with hundreds of women - I wasn't born this way, women created this attitude)

Post puberty, it is virtually impossible to find a man unwilling to have sex or one that would be traumatized except some victims of homosexuality. At age eleven/twelve I fantasized about my English Teacher. Miss Egan was ~25 years old, beautiful, stacked and had legs that went all the way to the floor. Every other sixth grader probably had the same wet dreams. Thirty years later, I still get a boner. I can assure you ecstasy not trauma would have been the proper noun. As a matter of fact, I bet if it was legal and it happened, grades would have improved. Trauma - not a chance.

Post Puberty, age has nothing to do with it. It is one hundred percent gender based. So if you want to find a solution it must be gender based and thus discriminatory. Should we as a society legislate the possible biological fact that men and women are different? Of course not. What a legal Nightmare. We need gender neutral law. Simply, any law that is not gender neutral should not be a law.

If men made the law, any and all heterosesexual behaviour (and even consenting homosexual sex) would be legal unless it was with their "property". I don't think women or even young girls are property. But as a grandfather, I would likely go to jail before I give up this instinct. If women made the law, all sex except what I say is illegal and I reserve the right to change my mind.

Sex is a lot like killing someone from a cultural moral perspective. Some of the behaviour is sanctioned by society some is not. To many abortion is murder. To some capital punishment is murder. Almost everyone regards self defense as not murder. This can be extended to protecting family or even society. Most say war is not murder. In all of these cases, the act of taking of a life is either culturally sanctioned or condemned. So where should we draw the line on sex.

Puberty. If the partners are both past puberty, they are adults. As a man I would suggest any and all sex between consenting adults, is legal . This is easy. Solving the incumbent problems such as pregnacy and STD's is not. I would suggest this is a health and family issue, not a legal issue.

What is far more diffucult is defining murder.

Leave it to Daddy and Grampa. Let him legally kill the one that deserves to die for hurting his granddaughter. How Chauvinistic. The comforting thing is my granddaughter gains strength and judgement in her life knowing that "Chauvinism" is alive and well in her family. I trust her to make good decisions and I will love and support her, come hell or high water.

We need fewer laws and better families.
Or to put it another way, if two 14 year olds engage in sex, which one is the statutory rapist? Pick one at random? Neither? How about we charge them both with raping each other!
Dr. Amy, you're missing the point. Well, several points, actually.

First point: I had a friend who lost her virginity at 12. Was she able to give consent? Well... she climbed through her boyfriend's window with a box of condoms. That says to me that she understood the purpose and possible result of sex and went there with the intention of initiating it. Was she able to understand all the ramifications of her behavior? Probably not, but she understood them no differently than most 18 year olds understand them.

Second point: So... the boy, 14, was able to give consent in a meaningful way, but the girls weren't? You're missing the jist of the argument, which is that he wasn't legally able to consent either. Yes, charge the girls too, if you're going to charge someone. Or better yet, don't charge anyone. There's a reason the law is adjudicated by actual human beings. It's so they can use judgment in enforcing the law.

With all due respect, have you ever SEEN an actual 12 year old? Don't you say you have a child of your own? Where in this nation would you find such a 12 year old as the one you propose in your thought experiment, who didn't know what sex was and could be taught a "fun new game"? She would have to have been homeschooled by religious extremists.
Amy, I agree with you that 11- and 12-year-olds--of either gender--aren't capable of true, informed consent. My point was that 14-year-olds aren't either.

Here's the difference between a 12-year-old girl consenting to have sex with a 14-year-old boy and a 12-year-old girl consenting to have sex with a 44-year-old man: 30 years. The 44-year-old man is expected to think like an adult and to not be attracted to or act on his attractions to pubescent girls. The 14-year-old is a BOY. He's expected to think like a BOY, and his attractions to pubscent girls are entirely normal and expected. There's a difference between an adult taking sexual advantage of a child, and two children of at most 3 years age difference having sex with each other. That's why most states have "Romeo and Juliet" clauses in their statuatory rape laws.

Yes, a lot of instances of sexual abuse begin with the perpetrator saying "let me show you a game." But not every instance--or even most instances--of kids playing "Spin the Bottle" or "Two Minutes in the Closet" or "Truth or Dare" is the beginning of a sexually-abusive relationship. These games are often an extension of childhood games of "doctor" or "husband and wife."

This case calls for more parental supervision of their sons' and daughters' activities, better sex ed. (which should include teaching kids ways to say NO), but I don't think this is a case of statuatory rape.
Login ID:

"If a child of X years is not adult enough to consent to sexual activity, he/she is not adult enough to be charged with statutory rape."

That's simply false. Many sexual predators begin their activities in their teenage years. A child who is not old enough to consent to sexual activity is perfectly capable of raping a another child.
Bill Stein:

"Puberty should be the dividing line and this is not age specific."

I disagree. Puberty occurs independent of intellectual understanding and emotional maturity. The ability to give legal consent depends on the brain, not the reproductive organs.
Leeandra Nolting:

"My point was that 14-year-olds aren't either. "

Sexually predatory behavior does not require "consent" on the part of the predator.
Quoting Dr Amy:"Sexually predatory behavior does not require "consent" on the part of the predator." Do we have any evidence this boy was a "predator"? Perhaps he was just a dumbass. I recall being one at age 14, especially around girls.
Excellent points raised by the various commenters.

I think it's also worth noting that the court is not ruling that what the boy did here was ok, it's just ruling that the law may be discriminatory. The court has not dismissed the charges against the young boy.

Courts rule on matters of law. The current law does not establish the age of consent at 13. If it did, then the 14 year old boy should be charged with statutory rape and the 11 and 12 year old girls should not be charged. Dr. Tuteur is concerned that 11 and 12 year old girls will be victimized by older boys.; so it should be noted that the court agrees that the boy's behavior here was wrong. The ruling was that the law needs to be applied equally as written and the law sets the age of consent at 15. If 14 year olds aren't exempt, than 12 year olds are not exempt, even if they are girls.

So the problem here is not the court ruling, it is the law. The Massachusetts legislature can fix the problem by updating the law.

By the way, I agree that there is a social pressure on young people to have sex. While I don't think that pressure falls disproportionately on girls, it is certainly true that the consequences (medical and social) do fall more heavily on girls. None of that, however, bears on the ruling. The current law was applied unequally by the prosecution.

I am also uncomfortable with branding 14 year olds, regardless of gender, as sexual predators.
Dr. Amy writes: "Anyone who has sex with an 11 or 12 years old, regardless of his age, is taking advantage of them and has committed statutory rape."

That's an interesting point of view, but as far as I can tell that's not how the law is written. In this case all the participants were under 16 years old. To paraphrase the former Secretary of Defense, you have to go with the law you have, not the law you might want or wish to have.
Amy--I agree with you there. But we don't know that he "preyed" upon these girls, or if they "preyed" upon him, or both, or neither. From the article, it sounds like they were unsupervised kids doing what unsupervised kids will do. I don't think that three years age difference, in and of itself, is enough to establish that he was acting in a sexually predatory manner towards the younger girls.

Look, when I was 13 years old, I was hired to babysit for a 4-year-old girl. She had an 11-year-old brother. The child was a hellion, but since I needed the money, when the mother called again a week later needing a babysitter so she could take one of the kids to the doctor, I agreed to babysit. Unbeknownest to me until after I arrived to babysit, instead of babysitting the 4-year-old girl, she wanted me to babysit her 11-year-old son!

Anyway, in the course of the day, he pulled a knife on me and tried to get me into his bedroom and told me to take off my pants. I refused to do any of these things and refused to break eye contact with him and told him over and over to put the knife down, which he finally did.

On the other hand, as I pointed out earlier, when I was 12, I was French-kissed by my 15-year-old neighbor (I kissed him first, but he's the one that did the kissing back--gross, because he dipped snuff), and had I suggested we go off behind the neighbor's barn and get freaky, he probably would have gladly followed. I don't consider either of us, 12-year-old me or 15-year-old neighbor boy, to have been making predatory advances on each other, even though we were BOTH under the Indiana age of consent.

The 11-year-old boy I babysat, however, WAS behaving in a sexually predatory way, even though I was two years older.
And October271986 makes a good point--if it's statuatory rape for someone of ANY age or gender to have sex with ANYONE under the age of 16, then the 11- and 12-year-old girls are also guilty, because by definition, a 14-year-old boy is under the age of 16.
Anyone willing to address the thought experiments?

Why would it be different if the man were 44 instead of 14?

If the younger children were boys would the assumption be that they were capable of giving consent?

Does it matter who initiated the contact?

Does the level of understanding of the children matter?
Amy- You sound like you have an axe to grind. You have tilted your presentation of the facts of this case to influence others towards your opinion. That is okay though! We all do it. A clear cut presentation fosters dialogue that trends towards consensus and cuts down on flames(like mine above!).

Statutory rape laws are problematic when the actors are both under 16. They act as an ax on situations that can be [i]very[/i] different.

While boys tend to be numerically older, girls do develop faster and tend to focus on boys their own developmental age. So in most situations of teen sexual exploring the male will almost always be older. When parents and authorities "catch" the teens it will be the male that takes the brunt, despite any actual facts about how everything actually unfolded. Prepared teen girls climbing through windows happens. If you allow only innocent motive males are going to be discriminated against.

There is another issue. How our culture treats sexual expression and sexual maturity culturally, legally and morally. When 15 year old girls who take a naked photo of them selves with their phone cam and send it to their boyfriend get charged with child porn(the girl who took the photo of herself!) we all have a problem. We are at the same time terrified and fascinated with teen aged sexuality. We celebrate it in ads and media and punish it legally. We have not all come to terms with a healthy understanding of sex. Our education system is a morass of denial and guilt with its abstinence only education priorities. We will continue to have situations such as this one until we get a grip.
OK, I'll bite:

1. I addressed the difference between a 14-year-old BOY and a 44-year-old MAN in an earlier response.

2. No, it doesn't matter what sex, gender, or orientation the kids are.

3. Yes, it does matter who initiated. Like I said before, I knew a number of girls in my seventh grade class who would have bedded a ninth-grader if given the chance. (And this was 16 years ago, before Britney and Lindsay and Paris.) And I've heard through the grapevine--and have no reason to doubt--that some of my male ninth-grade classmates freaked out and couldn't perform when it came time to do the deed with their girlfriends. When it comes to willingly undertaken sexual behavior WITH EACH OTHER (not with older adults) and mental and emotional maturity, 11-14 years rarely fit neatly into the categories of "young innocent victim" or "sexual predator"...and that's true regardless of gender or orientation.

The whole story of what exactly happened matters. Did these girls know the basic mechanics of sex (at 11 and 12 years old, most girls nowadays do)? Did they agree to that at the outset--even if sex was the "prize" for Spin the Bottle, or were they told "let's play a fun game" without having any idea what was coming next?

4. And this is where it gets sticky. My opinion on the matter would probably change considerably if one or more of the kids had mental retardation, autism, or some other serious developmental delay. I'm still not sure how/if to prosecute, given that the law is written with the assumption that the kids are all "normal," but it would change my moral opinion of the case.
I think you're all missing a basic point here. We live in a country that says it's better to let the guilty go free occasionally than to punish an innocent person. Do we really want to start ruining the lives of normal teenagers because they gave in to their hormonal urges? 11 year old girls are no more innocent than 14 year old boys. I clearly remember being that age and girls can be worse than boys. Unless you can prove that coercion or assault took place, I think it's ridiculous to prosecute anyone.
Anyone willing to address the thought experiments?

Me!

Why would it be different if the man were 44 instead of 14?

The 44 yr old man is an Adult. Past his age of majority and is considered culpable for all acts. HUGE difference, he should be jailed.

If the younger children were boys would the assumption be that they were capable of giving consent?

Nope. Gender isn't the issue. Our ideas of consent and teen sexuality is.

Does it matter who initiated the contact?

Yes. If the boy was acting like a predator and was using force and intimidation then that is one type of situation. If they were all just being kids and were just exploring and the girls were the aggressive party that would be different. Actually according to your idea of "child protection" it would be the girls that should be prosecuted.(I abhor this idea btw)

Does the level of understanding of the children matter?

YES There is a full 2-5 years difference between the kids. If the boy just turned 14 and the girl who was 11 was almost 12 then there would be as little as two years difference between them. However if he was almost 15 and she had just turned 11 then there could be 5 years difference between them. This is a pretty big difference and without knowing all the facts its just speculation. Plus as the case makes plain all 3 girls were involved. Three girls can edge each other on to do things that one wouldn't do alone. IF the three initiated and the boy agreed then who really needed protection?
So if your 11 year old daughter came home from school and announced that a high school freshman who lived down the street had taught her a new game, the touching game where he touched her breasts and she touched his penis, your response would be to think that they were both guilty of statutory rape or both guilty of nothing? You wouldn't report the 14 year old boy? You would tell your daughter that if it felt good and she enjoyed it, then she should keep on doing it? Is that what you are trying to tell me?
"So if your 11 year old daughter came home from school and announced that a high school freshman who lived down the street had taught her a new game, the touching game where he touched her breasts and she touched his penis, your response would be to think that they were both guilty of statutory rape or both guilty of nothing? You wouldn't report the 14 year old boy? You would tell your daughter that if it felt good and she enjoyed it, then she should keep on doing it? Is that what you are trying to tell me?"

Oh, I'd completely freak. I would completely flip and call his parents right away. I would also find out if she was forced. If she was then I'd DEFINITELY report him. If not then- I had hoped that when my wife and I educated her about her body and desires arising from them she had learned to understand and controll herself better.

But this is key here- is this what actually happened in this case?
There is a vast gulf between 11 and 14. Also- realistically the distinction should NOT be an age distinction. It should be whether the kid in question has had puberty yet. The statutory rape of a pre-pubescent kid should be prosecuted more vigorously.
You know, one of the things that I have been cursed with is an attractive 18 year old son who dresses like a rocker and plays a mean electric guitar. What's the curse you ask? Well, he turned 18 last July currently he is a senior in high school. So he goes to school every day with hormonal underage girls that think he is just the end all be all. So I find my self grilling him for about how old someone is whenever he talks about this girl or that girl calling him or going out to the movies. Not too long ago he brought this girl "Allie" home and she looked to be the same age as him, she is fully made up, is well developed, smiles at me then proceeds to light up a cigarette. After I tell her that I don't allow smoking in my home, I casually ask her how old she is.. Much to my horror the girl tells me that she just turned 16! SCREEEECH!!! (my brain putting on the breaks) I pull my son in the other room and spent the next 45 minutes explaining the statutory rape laws to him and then politely informed her that she was too young for my son at this point, She then proceeds to tell me that her last boyfriend was 20 years old and her mom doesn't care. I replied to this "girl" wow, I am sorry that your mom doesn't care who you date, but when young people like yourselves have arguments or break up things can change.. and I happen to care about who my son dates so I think that you should probably stay in the just friends zone.. and I then drove her home. The girls are more aggressive than the boys these days.
There are a whole lot of options between telling your 11 year old daughter to "go for it" with a 14 year old boy and prosecuting. For example, a more sane approach might be to speak to the boy and/or his parents. And hopefully the parents in this case had conversations with their children about basic anatomy, pregnancy, and STDs. If they didn't, then whose fault is it really? I was never dumb enough to think that touching a boy's genitalia was a game of any kind. I think you're infantilizing these girls and assuming they had no idea what they were doing.

As parents you can only protect your kids so much. They eventually make all kinds of decisions that could get them emotionally hurt, pregnant, injured, or even killed. You may not like it, but that's reality. Prosecuting is not the answer in this case.
Amy, I'm unsure who you're addressing here, but if it were my 11-year-old daughter that came home with this story, I certainly wouldn't tell her that that "game" was OK or that she should continue playing it! (Unless my daughter were in some way developmentally delayed, I'd hope that by age ELEVEN she'd know that this was NOT a game she should be playing. Scratch that--I wouldn't just hope she'd know it, I'd make damn sure to teach her that. And I'd teach my sons that too.)

Also, if all they were doing was "touching" each other, it's not rape, statuatory or otherwise.

Would I call the police on this boy? That would depend on whether I felt he was a threat, whether his behavior towards my daughter or other children was predatory or mutual curiousity/horniness. I WOULD be having a long talk with his parents, though! And I would not be letting my kid out of my sight around this boy until she was 35;).

What I wouldn't do (and again, this is assuming that my hypothetical daughter was "normal") is assume that my 11-year-old daughter was a sainted little angel who would never have even thought of playing sex games with that dirty nasty 14-year-old boy down the street had he not seduced her and stolen her innocence.

Sorry, Dr. Amy--I remember all the trouble I would have gotten myself into at that age with slightly older boys if I had been given the chance, and I can't see that I'd view my preteen daughter as being magically incapable of having a dirty, dirty mind;).
No force or coercion or complaint no problem.

Why can't people stop pontificating about other people's sex lives?

I don't want to disclose my sex life to you and I don't care to learn about yours - IT'S NONE OF MY BUSINESS.
Leeandra Nolting:

"I can't see that I'd view my preteen daughter as being magically incapable of having a dirty, dirty mind;)."

I am going to hazard a guess that you don't have any daughters, because I've yet to meet a parent of an 11 year old girl who thinks she has a dirty, dirty mind. Eleven year old girls are CHILDREN.
"So if your 11 year old daughter came home from school and announced that a high school freshman who lived down the street had taught her a new game, the touching game where he touched her breasts and she touched his penis, your response would be to think that they were both guilty of statutory rape or both guilty of nothing? You wouldn't report the 14 year old boy? You would tell your daughter that if it felt good and she enjoyed it, then she should keep on doing it? Is that what you are trying to tell me?"

You keep framing it this way, and I have to ask, is this how it happened in this case? Because the way this is framed, the freshman boy is obviously guilty of wrongdoing. So basically, you're asking us all this: "If someone does something wrong to your child, will you think it's wrong?" You've already applied a judgment to this scenario (and if something like this were to actually happen to someone, I'd agree with you, but we're talking about all of teenage sexuality here, not just one hypothetical act of wrongdoing).

And I have some problems with this scenario. First of all, I don't have children, but when I do, they won't be as clueless as the 11-year-old in your scenario--if a boy tries to pull something like that, they'll have had advice from me on how to handle the situation (IE, get the hell away from him as quickly as possible). The parents of your hypothetical 11-year-old have failed in their duty to educate their child about the potential dangers they may face.

Second, I don't like the way you jump so easily from teenage sexual misconduct to sexual predation, as if the two are one and the same. They're not: just as an 11-year-old girl is not prepared to offer consent, a 14-year-old boy is not prepared to understand the complicated world of sexual morality, nor is he fully prepared to control his own sexuality. Remember, these kids have more hormones pumping through their systems every hour than your own system encounters in a week (well, this is probably not technically true, but you get the idea). I doubt you'd be willing to insist that a teen who shoplifts is definitely going to become a career criminal. Should a kid who talks another kid into sexual experimentation be considered a sexual predator for life?
@icemilkcoffee--OK, how do you define "hitting puberty"?

It's usually a process that takes a couple of years to complete. I had B/C cup breasts and body hair when I was eleven (I got called "ma'am" by a shop clerk for the first time the summer before starting seventh grade) and reached my adult height (5'7") by twelve and a half, but didn't actually get my period until I was thirteen, almost fourteen.

In other words, I looked like an adult woman for a couple of years before I physiologically WAS one.
"I am going to hazard a guess that you don't have any daughters, because I've yet to meet a parent of an 11 year old girl who thinks she has a dirty, dirty mind. Eleven year old girls are CHILDREN."

I am going to hazard a guess that it was a LONG time ago that you were yourself 11 years old. By 11, kids of both genders have dirty. dirty minds, whether their parents know it or not. For example, boys in elementary school, as I recall, were fond of a little song that went something like this:

"There's a place in France, where the naked ladies dance."

There were numerous little rhymes like this that could be adapted to the tune, and when I was at summer camp in 3rd grade or so, that song was all the rage. Apparently you think children are sexless creatures, but you're dead wrong.
The law should prosecute both sexes if they are underage, and I do think that the law is sexist.

Answers to your thought experiments:
Why would it be different if the man were 44 instead of 14? A 14yr old boy doesn't have the mental capacity of a 44 year old man nor the understanding of his consequences. There has been much study about the maturity of the brain and I think it is quite clear that teens, no matter the age, are not mature.

If the younger children were boys would the assumption be that they were capable of giving consent? I think, on average, yes. I think the assumption is that boys are predators and therefore always guilty unless the girl is years (more than 3) older.

Does it matter who initiated the contact? No, it doesn't matter. Children copy behavior without understanding what they are doing.

Does the level of understanding of the children matter? Absolutely.
The argument that these girls are just as culpable as the boy is absurd and betrays an ignorance of the law. Yes, the boy is a minor, but minors of certain ages can be charged as adults because while they may not have the requisite knowledge to appreciate, say, the consequences of signing a contract, they are more than capable of understanding right from wrong.

Because the law states explicitly that this sort of activity constitutes rape, whether or not the victim "enjoyed" the encounter is irrelevant. It is the principle of the law that one cannot consent to harmful behavior. You cannot consent to assault, you cannot consent to be murdered, you cannot consent to have your home robbed. Once the law proscribes an act, the issue of consent goes out the window.

The idea that children in elementary school have as good an understanding of the consequences of sex or the act of sex itself as the 16 year old boy is pure fantasy and dangerous. Regardless of whether or not someone's body responds to sex does not mean it is consensual. Many men who are raped get erections because of biological responses to sexual stimulation on certain parts of their bodies, but an erection is not consent. Biology is not the issue here, the issue is the ability of someone to consent is. If the court accepts this argument, prosecuting rapes against women will be impossible if a rape kit is positive for vaginal secretions. If men are assaulted but achieved an erection during the attack, the ruling by the court would foreclose any criminal liability the attacker faces.

The statute is gender neutral so I am having a hard time how any judge could entertain an argument that says this law discriminates against a protected class. Even if he were only charged because he is a boy, the DA's office has full discretion over whether or not to bring charges against the boy. The fact is that he broke the law and the DA is acting within the authority of his office to prosecute that wrongdoing.

If the court is willing to throw out laws based on the fact that someone likes what s/he is doing, then drug use must be made legal, prostitution must be made legal, children who have become so broken that they no longer resist abuse will have no redress. Further, should we not prosecute, say, the forcible rape of someone in a coma because s/he cannot feel it anyway? Should someone who is paralyzed from the waist down be subject to the will of someone whose sexual appetites are only sated by preying on the weak? If someone drugs another person with GHB, should s/he escape prosecution because though the person was drugged would not remember the encounter?

The consequences of certifying this ridiculous argument by dismissing the charges are so far reaching and destructive that one can scarcely begin to imagine them. Regardless, any ruling that the statute is discriminatory would not survive a facial challenge when presented to a higher court where, presumably, the judges aren't on crack and actually went to law school.
New York, NY:

You've certainly changed a lot of the facts in your post. First of all, the boy is 14 years old, not 16, and the charges weren't dismissed by the Court; rather, the Court ordered evidence with regard to possible discrimination to be handed over, and ruled that discriminatory application of these laws constitutes a defense against the charges. Though you stress the value of going to law school, you appear to never have attended one yourself.

And this ruling has no bearing on consent being a defense against statutory rape charges, or any of the absurd ideas you suggest will come next. Perhaps you should have read the facts before ranting about the case.
Amy,

No, I don't have children of my own yet, and I agree that eleven-year-olds are CHILDREN.

But I remember what went through my mind all day, every day when I was an eleven-year-old child: SEX, and all things associated with SEX. My best friend, another 11-year-old girl named Sarah, and I had a secret club named HVC. In our absolutely unbreakable code A=Z, Z=A, B=Y, Y=B and so on, HVC=SEX. Our logo was a circle with a stylized drawing of a penis and a pair of breasts and HVC written underneath. We wrote some absolutely filthy stories (in code, of course) about SEX, SEX, and more SEX. We stole condoms from our Dads and she stole a Playboy from her uncle and I stole "The 1974 Woman's Day Book of Family Medical Questions" because it had chapters about SEX. We spent every single recess period down in a corner of the playground whispering about SEX. After school, I'd walk down to the Value Book Center and buy the raunchiest used Harlequin Romances I could find--the more explicit SEX scenes the better. The single biggest factor keeping us both from ending up sluts was lack of opportunity--both of us were pretty closely supervised during the years that our hormones were in massive overdrive.

(Oh, and we were both girls from stable, intact, working-class, small-town families who sacrificed to send their kids to Catholic school. We both turned out normal and non-nympho--I haven't had contact with Sarah in years, but I hear that she's a happily married bank manager in our hometown now.)

I'm not arguing that Sarah and I were anything more than children when we were eleven years old, but we had thoughts that would put porn producers to shame (and I have the diaries to prove it!)
New York NY:

"The idea that children in elementary school have as good an understanding of the consequences of sex or the act of sex itself as the 16 year old boy is pure fantasy and dangerous."

I'm am simply stupefied that everyone else doesn't see that very obvious point. No elementary school child can give consent to sex. There are no exceptions.

"Yes, the boy is a minor, but minors of certain ages can be charged as adults because while they may not have the requisite knowledge to appreciate, say, the consequences of signing a contract, they are more than capable of understanding right from wrong."

Once again, you are pointing out another fact that I thought was obvious. The Women's Reproductive Rights Project, and the SJC judges who accepted their reasoning, are living in a fantasy land where children "naturally" explore sex. That fantasy land never existed and it doesn't exist now.

Unless the boy was mentally handicapped, he was entirely aware that what he was doing was wrong, yet he did it anyway, because he thought he could get away with it. A 14 year old having sex with elementary students IS predatory. It is not consensual sex, it is not sexual exploration, it is predatory behavior. He took advantage of the age and ignorance of the girls.

I am also shocked and distressed by the notion that elementary school girls are sexually wanton. It has the uncomfortable echo of centuries of oppression of women justified because they were nothing more than sexual temptresses diverting men from more noble pursuits. It also uncomfortably echoes centuries of legal arguments about rape: the woman "asked for;" she shouldn't have dressed that way, she shouldn't have been in that bad neighborhood after dark.

The elementary school girls did not "want" it, they did not "deserve" it; they cannot be held responsible for what happened, regardless of what they said and did. It is not sexual discrimination to point that out. It is reality.
Sorry, but two wrongs don't make a right. It's morally reprehensible to label a 14 year old boy a sexual predator unless you can prove to me that there was violence, coercion or threats involved. Period.
ikilledhiswife:

"It's morally reprehensible to label a 14 year old boy a sexual predator unless you can prove to me that there was violence, coercion or threats involved."

That is not what is at issue here. The boy has not even had his trial, let alone been found guilty.

The boy is arguing that merely charging him with statutory rape is sexual discrimination. That's what we are talking about, and that's why people are trying to insist that the girls are just as responsible for what happened as he is.

I don't know if he committed statutory rape, but I do know that the 11 and 12 year old girls did not. I also know that charging an older boy as opposed to the younger girls is not sexual discrimination. Had it been a 14 year old girl and 11 year old boys, she would have been charged and not them.
Amy:

I love how you directly address the guy who states your position exactly, while you only allude to those of us who don't agree with you.

I especially liked this bit here:

"Unless the boy was mentally handicapped, he was entirely aware that what he was doing was wrong, yet he did it anyway, because he thought he could get away with it."

This argument disgusts me. The 14-year-old, who is not considered legally able to give sexual consent because he doesn't understand the consequences of sex, KNOWS that having sex is wrong? Then why would a 40-year-old woman be prosecuted for having sex with the same young man?

Look, the law is very clear on this point: if an underage person has sex, no matter whom they have sex with nor whether or not they give consent, they are the victim of a crime. This creates a problem when two or more people, both/all of whom are underage, have sex with each other (as in this case). The law clearly states that all of these young people are both victims and perpetrators.

Meanwhile, in the real world, where such clear distinctions often don't exist, there are three possibilities:
1. The boy raped the girl(s).
2. The girl(s) raped the boy.
3. No rape occurred, because the sex was consensual.
I agree with you that #3 is difficult to ascertain, because it can be difficult to determine if the young girls really knew what they were agreeing to. But I reject the idea that the extra three years make the boy somehow infinitely more knowledgeable than the girls. (Remember, according to the law, he is no more knowledgeable than they are, which isn't exactly true in real life, but he's not an adult either.)

Here's a thought experiment for you: Suppose the boy were 12 instead of 14. Now who's the rapist and who the victim? What if the girls were 13, 13, and 14, and the boy was 12?

Now consider that the law in question draws no distinction between a 12 year old and a 14 year old--they're both underage and not capable of making sexual decisions. You're the one applying stereotypes in your judgment by assuming that these girls are 100% innocent sexless children, rather than kids who, though not terribly well-informed about sex, know very well what body parts are involved and would very much like to try it out.

Obviously, when an adult takes advantage of this fact to abuse a child, he or she should be prosecuted. But when kids have consensual sex with each other (whether or not the law considers it consensual), they should NOT be prosecuted. (Instead, their parents should figure out where they went wrong and try to do better in the future.)
wow. i am so ashamed dr amy went to boston university. i thought i attended a decent university, but apparently people with totally irrational ideas like hers are soiling the schools once proud name.
Well, then I'll clarify my point. If they're all under the age of consent, then why is he the one on trial? I think his lawyer makes a valid argument. You may not like it, but it IS a valid argument. What you're trying to say is that he's "more" responsible than they are because he's closer to the age of consent. Sorry, not buying it. You're either old enough to consent or you're not. The girls are not victims in this. And where I come from (Massachusetts), ages 11 and 12 are Junior High, not even close to elementary school.

I'll give you this... when this boy turns 16, I think he's going to be in for a rude awakening.
"Anyone willing to address the thought experiments?"

A 44 year old man/woman who has sex with a 12 year old boy/girl is in clear violation of the law, not to mention a predator.

Your "thought experiment" confuses me. 44 is 28 years above the age of consent.

If a 12 year old girl wants to have sex with a 44 year old man, HE knows better, whereas a 14 year old might not.

I'm not condoning the 14 year olds behavior but your "experiment" to make the 44 year old and the 14 year old is silly and not at all compelling.
Dr. Amy, I guess we'll just have to agree to disagree here--you think a 14-year-old boy is automatically vastly more mature and knowledgeable about sexual matters than an 11-year-old girl, and I don't.

I do, however, think that three years age difference is the cut-off point for when we get out of kids-being-horny-kids and into issues of older-kids-taking-advantage-of-younger-kids.

I don't know what fantasyland you're living in, but children DO explore sex with each other. (I take it neither you, nor your husband, nor any of your four children ever played "Doctor" when you were growing up.) That's one of the reasons children are SUPERVISED. (And that, IMHO, is a very good thing.)

I didn't say that elementary school girls were sexually wanton, or "asking for it," or capable of legally giving consent to or understand the ramifications of having sex with ANYONE, child or adult...but it's certainly not unheard of for girls going through puberty to be every bit as hormonally-driven and sexually aggressive as boys.

The 14-year-old boy in this case was not having sex with 6-year-olds, or 8-year-olds, or even 10-year-olds. He had sex with girls who, most likely, were about at the same stage of physical and mental development as he was. (I was once roped in to chaperoning a YMCA dance for kids about this age--I commented afterwards that it was surprising how old all the girls looked and how young all the boys acted.)

You look at an 11-year-old girl, and you see an unmistakable child, young and ripe for being taken advantage of.

A 14-year-old boy sees an 11-year-old girl, and he wonders when his best friend's little sister suddenly stopped being bratty and started being hot. To him, she doesn't seem so young and incapable of understanding the ramifications of what she's doing precisely because he too is pretty young and incapable of understanding the ramifications of what he's doing.

I do think that there should be Romeo and Juliet clauses in statuatory rape laws, because while virtually no one thinks that young kids having sex with each other is in any way a good thing, those laws are to protect children from being exploited by adults, not to prosecute children for getting into foolishness with other children.

If ANYBODY should be prosecuted in this case, it's the parents who didn't properly supervise their children.
Why do we have child labor laws? Some kids this age are very mature and are curious about operating heavy machinery!
Amy you said- "The boy is arguing that merely charging him with statutory rape is sexual discrimination."

He is definitely NOT arguing this.
quote "The boy, the court said, has a constitutional right to see if Plymouth District Attorney Timothy J. Cruz's office discriminates against boys when prosecuting statutory rape cases."

He is arguing that the prosecutor is misusing prosecutorial privilege. He is not arguing that he is being prosecuted "merely" for being a boy, he is arguing that the prosecutor ignores the facts of stat rape cases in order to biasly prosecute boys.
Dr. Amy said:

"The boy is arguing that merely charging him with statutory rape is sexual discrimination."

Maybe that's the source of your confusion - you completely misunderstand the argument at issue here, and therefore reach a fundamentally flawed conclusion. The defendant is not arguing that "merely charging him with statutory rape is sexual discrimination." He's arguing that he should be allowed to explore whether the local prosecutor has made a practice of only charging males with the offence.

"That's what we are talking about, and that's why people are trying to insist that the girls are just as responsible for what happened as he is."

Well, again, that might be what you're talking about, but it's not what the article you linked to is talking about. The article you linked to is discussing a case challenging the [purported] sexually discriminatory practice of only pursuing criminal charges against male offenders. Actually, it's not even that - the article discusses a case where the court has said that a defendant gets to explore whether that's going on.

"I don't know if he committed statutory rape, but I do know that the 11 and 12 year old girls did not."

You may "know" that, but the law certainly doesn't. The law is very clear - anyone who has sex with an underage person, regardless of their age, is guilty of statutory rape. As such, each of these girls committed statutory rape as defined by the law. While I have a problem with the law being written that way, that doesn't mean the law can just be ignored because it serves the prosecutor's (or your) agenda. If a law says "everyone who does X is guilty of Y," than everyone who does X is guilty of Y, period.

"I also know that charging an older boy as opposed to the younger girls is not sexual discrimination. Had it been a 14 year old girl and 11 year old boys, she would have been charged and not them."

Except there's no indication that the law itself says that the older participant in the encounter is the one to be charged. The defense attorney apparently believes that sex, not age, has been the determinative factor in this case. The court apparently saw enough merit in the argument to allow discovery on the issue.
"Claiming that girls in elementary school 'can enjoy sex and be sexually active' is a willful misrepresentation of everything we know about children and their decision making abilities."

Your conclusions are all based on this statement, which you cite no facts to support. Without specifics, "everything we know," is nothing more than an appeal popularity, tradition, or belief, all of which are logical fallacies.

Unsupported, the claim that "the SJC has willingly sacrificed young girls to the predatory advances of older boys and men" strikes me as hyperbole of the sort intended to provoke an unthinking stampede based on fear, not a rational discussion of facts.
Sadly, while the sentiment of this article may be right, the legal facts do not seem disputable. If all parties are under the age of consent they are being treated differently under the law in this instance. That seems clear on its face. The fact is this is a legal issue, not a medical one. It seems like the place to resolve this problem is on the therapist's couch, not in court.
I'm pleased that you have raised your daughter(s) in such a way that they are not overtly sexual at a young age, but you are sadly mistaken about the majority of girls that age. First of all, these are not elementary school children, they are middle school children, and that is a big distinction. The media in this country has been sexualizing young girls for quite some time, now, and "tween" girls are given a mass of role models who are anything but.

I teach middle school at a very expensive, all-girls private school. These are intelligent, well-parented children, and I routinely pull 12 year olds off the floor during dances because they are dry humping the boys they have invited. We have had to make strict "no freaking" rules for our middle school girls, and they were furious about them because they feared no boys would want to come to the dances if they couldn't press their genitals up against the girls.

For you to hold these girls blameless for consensual sexual acts with a boy who is not much older and is probably less mature is incredibly naive. If sexual acts with someone under 16 is illegal, those girls also committed a crime.

Yes, that law is discriminatory, but not only toward boys. When are women going to be treated like we can make our own decisions and be responsible for them?
Let's get the facts straight. From Dr Amy's mouth:

"Therefore, the boy’s lawyer offered a novel assertion: Since all parties were under the age of consent, prosecuting only the boy is sexual discrimination."

a) the boy's lawyer is making the argument, not the boy himself, as Dr Amy incorrectly stated in one of her comments.

b) Dr Amy later stated that merely charging the boy is being claimed as discriminatory, yet the argument is that charging only the boy and not the girl is what is actually discriminatory.

c) the case being made is that the sexual discrimination consists of charging the boy because he is a boy, not because he is the older party (which he is). Dr. Amy's argument is that the boy is older and therefore he is clearly the culpable person. Dr. Amy then ignores her own quote of the law in question:

"Whoever unlawfully has sexual intercourse … [with] a child under sixteen years of age shall … be punished by imprisonment in the state prison … [or] any term in a jail or house of correction …"

According to the law, all parties involved are guilty. The law makes no mention of only the older party being guilty of the 'crime'. According to the law, all parties should be charged with statuatory rape.

So, since the law doesn't discriminate based on age, yet the prosecutors charged only the boy and not the girls, there is a case *to be made* that the boy is the victim of sexual discrimination.

Which brings the second point: when judges accept a defense, they are not saying the party claiming the defense is being acquitted, they are just saying the defense is valid *to be argued* in a court of law.

You can't just argue any defense you want in a court room, it has to be a valid defense. If someone charges you with grand theft auto, you can't argue not guilty by reason of violets being purple and the sky being blue.

So, to sum up the situation, the defense being argued is that the boy is being sexually discriminated against. From the facts Dr. Amy presented, it seems this is a valid legal argument, whether or not it is true or not true.

Dr. Amy's subjective opinions about who is capable and not capable of giving legal consent to things is completely irrelevant. If Dr. Amy wants to make a point about sexual predation among teenagers then she should choose a better source of material with which to make her claims.
Double Helix:

"The 14-year-old, who is not considered legally able to give sexual consent because he doesn't understand the consequences of sex, KNOWS that having sex is wrong?"

Yes. What's so difficult to understand?

A 14 year old boy cannot legally give consent to have sex with an older woman. That does not mean that he is not responsible for his actions in having sex. Remember, if the sex is not consensual on the part of the woman, it is always rape. A 14 year old boy is capable of and culpable for raping a woman of any age if she did not give consent, and it would be actual rape, not statutory rape.

There would be no issue here if there was no consent. It would be rape regardless of the fact that the boy is 14. The issue is a direct result of the fact that the girls gave consent. The "Romeo and Juliet" exception to the statutory rape law exists specifically to protect a boy and girl in a relationship. It does not, not was it ever intended to, provide immunity for boys who have sex with young girls.

The fact that the boy could, in another situation, be considered a victim does NOT mean that he cannot be considered the perpetrator (and a criminal) in this situation.
Leeandra Nolting:

"I guess we'll just have to agree to disagree here--you think a 14-year-old boy is automatically vastly more mature and knowledgeable about sexual matters than an 11-year-old girl, and I don't."

Well, we certainly disagree on that point, but that is not the point I am making here.

I have made several claims:

It is impossible for 11 or 12 year old girls to give legal consent to sexual activity.

It is possible for a 14 year old boy to be a sexual predator.

The fact that a 14 year old boy could be the victim of an older woman, does not absolve him of responsibility for the decision to have sex with elementary school age girls.

The fact that boys are more likely to be charged with statutory rape (or other forms of predatory conduct) is not sexual discrimination. It reflects the fact that boys are more likely to commit statutory rape or be sexual predators.

The appropriate place to consider whether the boy understood his actions is at the trial itself. His lawyer is free to argue that he didn't know what he was doing, didn't understand what he was doing, or didn't understand the implications of having sex with 11 and 12 year olds. The judge and the jury are the ones who will make that decision.

What's happening here is that he is trying to short circuit the trial, so those issues will not be addressed.
Lets be careful now. We're not talking about right and wrong. We're talking about legal and illegal. Two very different things.

Dr. Amy said: "This case is about child protection, not about female sexuality. Elementary school girls are incapable of giving consent to sexual behavior, period."

Well... What about boys? Are boys capable or incapable of giving consent? If all the parties were under the LEGAL age (remember this is a legal case) why assume the girls are incapable and the boy is culpable?

Ok yes, as a rational person, and as a former teen boy, I'm pretty sure I know who was the driving force behind the events, but legally it would be unjust to assume if all the parties are under age that the boy is guilty merely because he is a boy and he is older than the girls. If in fact there is any guilt to be charged.

If in cases were both parties are under the legal age and yet the boy is always the one charged with a crime both committed, then the court is right to examine this issue.

Certainly the cultural bias that assumes if a boy and a girl of equal young age have sex, that the boy is lucky and the girl is a victim should not be a dynamic operating in our courts.

Note: Everything I said assumes the sex was consensual.
"It is impossible for 11 or 12 year old girls to give legal consent to sexual activity. "

It is impossible for a 14 year old boy to give legal consent to sexual activity. In this scenario, both boys and girls are legally identically situated.

"It is possible for a 14 year old boy to be a sexual predator."

It is possible for an 11 year old boy to be a sexual predator, or a 14 year old girl, or any variation on the theme. Anything is possible. Indeed, we could entertain a hypothetical situation where the boy in this scenario was not a willing participant (such things do happen). In that case, would it still be appropriate to charge the boy and not the girls? I assume your response (if you deigned to respond) would be no, but more likely you will dismiss the scenario altogether as implausible. Your prejudice is showing.

"The fact that a 14 year old boy could be the victim of an older woman, does not absolve him of responsibility for the decision to have sex with elementary school age girls."

The fact that an elementary school age girl could be the victim of an older man, does not absolve her of responsibility for the decision to have sex with an underage partner.

The problem with your position is simple - the law does not say that the older partner is automatically solely liable for the sexual encounter. You're assuming that's the case, and maybe it should be, but it's not.

Simplify the scenario, since you seem to appreciate hypotheticals - what if this situation involved a fourteen year-old boy and a fourteen year-old girl, and the prosecutor only charged the boy? Would you acknowledge that decision might arise from sexual bias? While you have clearly made up your mind that the boy is a sexual predator, he still has the right to present a defense - including questioning why he's the only one being prosecuted for crimes that all four people (according to the express terms of the statute) committed.

"The fact that boys are more likely to be charged with statutory rape (or other forms of predatory conduct) is not sexual discrimination. It reflects the fact that boys are more likely to commit statutory rape or be sexual predators."

That's not an either/or scenario. Boys could be subject to more prosecutions both because prosecutors have a discriminatory bias against boys and because boys are more likely to commit statutory rape or be sexual predators. You have no way of knowing if this particular prosecutor made the decision to prosecute based on a dispassionate evaluation of the facts or based on a knee-jerk reaction that all boys are evil seducers bent on preying on defenseless girls. If the prosecutor made a dispassionate decision, he or she should be able to prove that in court and survive the challenge. If, however, the prosecutor's office has a policy of only charging boys and never girls, regardless of circumstances, that's a problem that must be addressed.
The author goes to great lengths to emphasize that the boy is a high school student and these girls are elementary school students. We read that the boy is a freshman, meaning 14-15 years old. I think the author is exaggerating the age difference issue, particularly after bringing up "Romeo and Juliet" exceptions. Why doesn't the author mention the age of the boy? The author doesn't raise objections to the 17-year-old boy and 15-year-old girl . . . a 2 year age difference. Again, if the boy is a freshman, we're looking at an age difference of 2-4 years.

I would argue that the boy is as clueless as to the true consequences of sexual activity as are the girls involved. I'm not promoting sexual promiscuity among elementary school girls, nor high school boys. I do find it a stretch to characterize this boy's actions as "predatory advances."

Personally, I don't think the courts have any business in this matter. These are kids having sex with each other. I agree with Cleave that this is a matter for their parents to settle, and wonder along with Bunglermoose where these kids were. I also agree with the author, "Elementary school girls can and should be protected against the sexual advances of older boys and men, period." Again, that's what parenting is for.
Amy wrote:

"The fact that boys are more likely to be charged with statutory rape (or other forms of predatory conduct) is not sexual discrimination. It reflects the fact that boys are more likely to commit statutory rape or be sexual predators."

The structure of your circular argument is analogous to the following:

The fact that African Americans are more likely to be in prison is not racial discrimination. It reflects the fact that African Americans are more likely to commit crime.
Amy:

You are correct in that 11- and 12-year-old girls cannot give legal consent to have sex with anyone, regardless of age.

You are also correct that 14-year-old (or even younger) boys can be sexual predators.

The problem is, 14-year-old boys are also considered legally incapable of giving consent, and 11- and 12-year-old girls can also be sexual predators.

Now, I wrote earlier about the behavior of an 11-year-old boy towards me when I was 13 that I think pretty much anyone in their right mind would consider sexual predation, even though I was the older party.

What if our sexes had been reversed, i.e. an 11-year-old girl had pulled a knife on a 13-year-old boy and told him to take off his pants? Would that be sexual predation? (I'd certainly hope so!)

Or what if, while 13-year-old me and 11-year-old boy were left alone together all day and nobody pulled a knife on anybody or coerced anybody into anything, but we spent the time having sex? Who would be the predator, and who would be the victim? (Bear in mind that even though I was two years older than and two grades ahead of him, the 11-year-old boy was the biggest in his class--he was a bit taller than and had about 30 pounds on me.)

And the Romeo and Juliet clauses were written precisely to protect people who have sex with partners who are under the age of consent, but who are three years or less older than these partners. (Thus, a 17-year-old boy can have sex with his 14-year-old girlfriend, but her 39-year-old math teacher cannot.) They don't say a thing about a "relationship" between the partners--they're just written to reflect the reality that kids sometimes have sex with each other, and that this matter should not be treated the same way as a much older adult having sex with these kids.

The seventh-grade girls in this situation are only "elementary school age" if you use the old fashioned K-8 distinction, and using that distinction would make the freshman boy in question only a grade out of elementary school himself. As another poster pointed out, that's hardly a senior heading off to college getting jiggy with a second-grader.
Amy:

Would you say these girls are responsible for their actions in having sex?
I am sorry that I mistook the boy's age for 16 rather than 14. I did not deliberately distort the facts to favor my argument. However, I maintain that he is the culpable party. I never said that the court ruled in his favor, I said IF the court rules in his favor it will upend the already poorly designed mechanisms with which handle sex crimes.

I am not going to deny that I am morally outraged by the actions of this boy and from the perspective of an ordinary citizen, I advocate that he be prosecuted. But, I am also a lawyer, so I cannot help but be caught up in the nitty gritty legal elements in play. It just so happens that in this instance, my views are in line with one another.

I think it is important to address the unprecedented ruling the court has made and its impact. By ruling that the defense may present evidence of statistics of who is prosecuted for what as proof of discrimination and grounds for dismissal of charges, this court is out of step with the underpinnings of US jurisprudence and prevailing case law. That prosecutors have unchecked power to decide against whom it files charges is one of the hallmarks of our legal system and it distinguishes it from those of Europe or Latin America. There exists no duty to prosecute in order to satisfy victims or give the impression of parity. Prosecutors have nearly unfettered and unreviewable power to bring charges, to decline to bring charges, to charge harshly, to charge leniently. If a first time offender has a run in with the law, the DA's office may decline to bring charges of every element of a crime. If a persistent offender has a run in with the law, the DA's office may take the step of punishing every violation of the law in the criminal transaction alleged in the information. The DA's office is not compelled to prosecute female offenders, it is not compelled to prosecute male offenders, it is not compelled to prosecute whites, it is not compelled to prosecute Jews, it is not compelled to prosecute anyone. Those sorts of laws exist in Europe, not here.

By interfering in this process, the court has gone too far. The court has a very specific place in criminal procedure and it does not come into play until a defendant is brought before it for judgment by the petit jury and not a moment before. The court may rule retroactively on constitutional or procedural issues taken by the DA's office to procure evidence, for example. The only burden a DA's office must meet in the eyes of the court regarding prosecution of charges is whether or not it has met its prima faciae burden when it rests its case.

The prevailing case law is that a statute can only be overturned if it has a discriminatory purpose, not a discriminatory effect (See: McCleskey v. Kemp, 481 U.S. 279 (1987), Washington v. Davis, 426 US 229 (1976), and Personnel Administrator of Massachusetts v. Feeney, 442 US 256 (1979), Palmer v. Thomas, 403 US 217 (1971)). The upshot of McClesky is that Supreme Court rejected the argument that black defendants on death row are victims of racial discrimination because white people are less likely to face the same punishment. The Court held that the defendant would have to prove he was sentenced to death solely because he himself is black and statistics are not evidence of that. Even if one is to contort one's thinking such that the girls can be construed to have equal criminal liability to the boy, the DA's office is not compelled to bring charges against them. The DA's office is not under any obligation to bend to the court's idea of parity or the defense's idea of parity by prosecuting someone. This ruling, which will never be upheld by higher courts, has hamstrung all of the DA's offices in Massachusetts. Defendants in Massachusetts, armed with this ruling, may halt the prosecution of their cases by alleging they are part of a group that is prosecuted more than another and the court must examine the statistics of who is prosecuted before the case can proceed. What's worst about this is that this crazy ruling will never survive an appeal, yet it will disrupt the courts until it is struck down because the state's highest court has issued the ruling and every other defendant has the right to avail himself/herself of it.

On to the unfounded gender bias argument. There is no gender bias issue here. The language of the law makes no difference between males and females. Under the language of the law, if the 14 year old had been a girl and the 11 and 12 year old children had been boys, the criminal liability would be the same as they are in this case. Again, just because a law may have a discriminatory effect, does not make it offensive to the Constitution on 14 Amendment grounds. The statute must have been written with the express purpose of discriminating against males. The Supreme Court has plainly stated that statistical studies that show that one group is prosecuted more often and sentenced more harshly than another is insufficient evidence of this claim.

While we do not know all of the details of the case, knowledge of the statute, the age of the victims, and the age of the accused are sufficient. The age of consent regulates, WITHOUT QUALIFICATION, when a person can consent to sex and the state of Massachusetts bars sex with anyone under 16 and has a sentence enhancement for those who have sex with someone under the age of 14. Being sexually developed, as Dr. Amy suggested, does not lower that bar. That the girls did not protest does not lower that bar. That the girls did not complain does not lower that bar. Neither does lack of fear of the defendant lower that bar. The state has fixed an age and short of proving that the victim is lying about her age, there is no defense against it. The state has drawn a gender neutral bright line and this boy is on the wrong side of it.

Another point all of you apologists for this boy are missing is that though this boy may be two or three years older than the girls, those two or three years are significant in children. Your knowledge base and the things to which you are exposed expands wildly in the intervening years between 11 and 14. So while girls may mature sexually earlier than boys, their judgment and ability to make decisions about their safety is the same. That is why it is okay for a parent to leave a 14 year old home alone, whereas it is grossly irresponsible to leave an 11 year old alone or why you might let a 14 year old go to the movies with his/her friends alone whereas you would not let a group of 11 year old children travel alone. 11 to 14 is clearly not the equivalent of the intervening years between 43 and 46.

To those who are defending this boy, I would like to toss out a question: why didn't this boy find a 14 year old girl to his age to have sex with him? His choice of people to engage in sex acts with are two 12 year old girls and one 11 year old girl. Could it be that 11 and 12 year old girls are easier to manipulate than their savvier 14 year old counterparts? The victimology has not been addressed in this article, but it could provide great insight into the motivations behind this boy's choices. Victimology, for those of you who do not know, is the scientific study of the relationship between an offender and his victims. I am leaning towards thinking that these girls were targets of convenience and opportunity for this boy.

I am troubled that some of you are seeking to reinstate the long since discredited arguments that "it's not rape because she started it" or "it's not rape because she liked it." Prosecutors and victims' rights advocates fought long and hard to get those sorts of "evidence" of a defendant's innocence thrown out of our legal system.

So what if the girls so called enjoyed it. No one is claiming that young people do not have the physical capability to enjoy touching certain areas of the body. No one is saying that they are not neurologically in tact. Conflating biology with the ability to give consent is a relic of the bad old days when victims of sex crimes were blamed for someone taking advantage of them. This, along with victims' sexual history, relationship with the person charged with the crime against him/her, whether the victim was dressed in a way that was sexy, or even whether the victim was a sex worker were all used as justifications of attacks against them. Fortunately, the rules of evidence now bar the introduction of those facts at trial.

Many of the apologias for this boy that I am reading sound as if they were taken from the playbook of sex offenders. "She came on to me," "she seduced me," "she said no but she didn't mean it," "she threw herself at me," "yeah she told me to stop, but if she didn't want to have sex, she shouldn't have kissed me," or "she looked old enough" are words I would expect to come out of R. Kelly's mouth.

Some of you have advanced the argument that this matter is best left to parents. I am sorry, but we live in a society in which the government decides the appropriate penalty for law breaking. It is not the place of the crime victim or his/her parents to adjudicate criminal cases. After all, many of Warren Jeffs' child brides were given to him by their parents. The state convicted him of rape nonetheless because the negligence and cruelty on the part of the parents did not mitigate his responsibility for the crimes he committed against the children. The state does not require a complainant in cases like these. A violation of this law triggers the prosecution because the child cannot consent to the sex act and the parents have no right to waive the age of consent. The state often intercedes on the behalf of children against the wishes of their parents when the parents are not acting in the child's best interest. Any parent who would soft peddle this behavior is not acting in the best interest of the child. Just as the parents do not have the right to avail themselves of self-help by beating the boy up or killing him for violating their daughters, they cannot stop the prosecution of the crime because they feel they have dealt with it between themselves and the parents of the boy.

Some of you are asking where the parents were during all of this as if the lack of supervision of these kids somehow makes this boy's behavior less odious or criminal. I counter that if anything, this broadens the scope of the investigation to see if there was not any negligence on the part of the parents sufficient to warrant supervision of their households by child protective services. Indeed, taking the opportunity to engage in an act because no one is looking is evidence of consciousness of guilt or at least an awareness of wrongdoing on the boy's part.

I do think our legal system is currently showing a terrible slant against boys in terms of prosecution and enforcement of sex crimes committed against them, though. Female teachers have taken to sleeping with their male students and they are getting away with slaps on the wrist under the guise of "what 12 year old boy wouldn't want to sleep with his teacher?" If a male teacher has sex with a student, he is sentenced harshly (as well he should be). The female teachers in many of these cases have been sentenced to no jail time, have not had their bond revoked when they flagrantly violate court imposed restraining orders, and are generally treated less harshly than some people are for driving on a suspended license. That is where the sex crimes statutes are failing boys and I think it is a scandal. Boys should be treated as victims the same way their female counterparts are. And, female sex predators should be treated just as harshly as their male counterparts. The outrage the public expresses when it is male-on-male statutory rape as to female-on-male statutory rape is borne out of homophobia and it shouldn't be condoned. Even though DA's offices are failing boys and their parents by not punishing the women who prey on them, I also acknowledge that they are under no obligation to wield the power of their offices equally. The proper way to remedy this problem is to vote these district attorneys out of office in favor of a candidate who vows to treat all victims equally.
It's a tragic situation, but it's also wrong to charge a 14 year old boy with statutory rape. Teen brains are not developed and to an immature 14 year old, an 11 year old may not seem that young (particularly if she's more mature than average--or, perhaps in this case, more sexually mature).

Criminalizing the boys sexuality won't change the sexualization of tweens by adults. If you want to address that, you'll have to do it through schools and parents, via education.

William Saleten wrote about the biology and ethics of statutory rape in a brave and thoughtful way here: http://www.slate.com/id/2174841/

I think he does a good job at getting rid of the yuck factor that makes thinking about childhood sexuality hard, to focus on analyzing the facts (such as puberty moving younger while age of consent gets older) and their implications.
This could be a little fragmented, but stay with me.

First I have 9 kids, 6 girls and 3 boys. They are: G (26 Y/O) G G G B G B B (13 Y/O) G (5 Y/O) so I think I fill the requirement of having been around this for a few years.

There is no act or problem that I would say the girls are more likely to do than the boys. That includes sex and everything else.

In the problem in the article this isn't a law enforcement problem. This should be dealt with by the parents.

Please Dr. Amy, show me a couple of cases where a 14 year old girl had charges filed against her for having sex with a younger boy.

You might have trouble since female teachers don't really end up in jail. Do you think the "I'm to pretty to go to jail" defense would work for a male teacher? The only one who did serious time was the one who got out and kept going back to the kid. Even she didn't do as much as a male teacher would do.

What is missing from the story is who called the police? Why would they do that instead of just treating the kids like kids and dealing with the problem? Don't say the boy is a predator unless you have something to say that he was the aggressor and the girls didn't want anything to do with this. Baring proof that he stalked, threatened or something else he is not a predator.
So you are claiming that if it was a 14 year old boy and an 11 year old girl would have been charged? Maybe, but very unlikely. The rights groups understand the issue correctly. The author speaks of cultural pressure to sexualize young girls. But what about the cultural pressure to frame women as victims. This is neither fair to boys or girls. Biologically speaking, it is completely reasonable for an 11 or 12 year old girl to be sexually active. Wrong culturally and psychologically perhaps but possible none-the-less. This law doesn't just serve to protect girls from boys. It serves to automatically frame girls as victims and boys as aggressors. And that's just wrong and tragic so much of the time.
The calling of the police is kind of odd. It certainly wouldn't be my first reaction. Calling a counselor if I was a parent, or the other kids parents, or... pretty much anybody before the police.
What's funny here is that Dr. Amy's reaction to the incident is exactly why the court gave the go ahead for the examination of whether their was sexual discrimination on the part of the prosecutors -- Dr. Amy is discriminating against the boy just as much.

Over and over we say, Dr. Amy, according to the law, all 4 people are guilty of statutory rape, but why is the boy the only one charged? And Dr. Amy proceeds to argue about whether the boy can be considered a sexual predator or what might be the case if various genders or ages were switched.

But we need not consider hypotheticals to see what's going on. That the boy broke the law is not in question. Dr. Amy agrees on this. The facts are the facts. If someone has sex with a child under the age of 16 they are guilty of statutory rape. The sexual discrimination is that the girls are all guilty of the same thing. They had sex with the boy who is also under 16. They are not being charged. Why?

Dr. Amy, all other points aside, why is that you do not feel as outraged over the girls statutory raping the boy as you are about the boy statutory raping the girls?

And this is the core of the boy's lawyer's argument (and not the argument of the boy -- this is all coming from the lawyer, whose job is to keep the boy out of jail in any legal way possible). We hear about the boy having sex with the underage girls and are outraged, and the prosecutors charge the boy for his crimes, but the girls are not charged regardless of the fact that legally they did the exact same thing he did. Guilty even though he may be, the boy deserves to be treated equally and not discriminated against.
I'm afraid it is this article that is misguided. The defense of the boy is based on the fact that he was the only one charged even though, under the law, the girls committed statutory rape against him as well.

The entire premise of the objection in the article is based on the statement "The boy was charged because we was older, significantly older." No matter how older he is, he is still under the age of consent specified by the law. Under the law, anyone ... yes, *anyone* who has sex with him is committing statutory rape.

Suppose we accept that the points of the article are valid, that girls in elementary school enjoying sex "is a willful misrepresentation of everything we know about children and their decision making abilities". That sounds reasonable. It also claims "The boy was charged because he was older, significantly older. He was in high school". That also sounds reasonable.

Except the law does not recognize the difference. It doesn't say that the dividing line between consenting and non-consenting ages is high school versus elementary school. It says 16 years of age. Under the law, he is no more capable of enjoying sex and be sexually active than the girls involved. If you disagree with that, then you disagree with the law. That is fine. Where would you draw the age of consent? Since two girls were 12 and he was 14, it appears you'd draw it at 13. Is that what you want to argue? You want to lower the age of consent from 16 to 13? That's exactly what you are doing. I don't think you've thought this through.

The defense is exactly right here. Either the age of consent is applied universally, meaning that the boy was not old enough to consent either so the girls also committed statutory rape, or they need to update their legislation to include "Romeo and Juliet" limits when both parties are under age.

You can have it both ways.
Sorry, it is not so clear as you try to make it. You inflame with "high school freshman" - that's 13 or 14 out here.

You can't legislate this stuff. You need one court to decide if there was a crime and another to try it. That first court has to be able to do as they wish having listened to the kids. In cases where adult males are involved it's a no-brainer. In cases it is all kids that first court has to figure it out on a case by case. And those cases people love to try these days, the one with the older woman - well that needs to go before that court too. You see, we guys aren't often harmed by these things, we count ourselves lucky and no amount of pc bs will change that. So you go to that court for those few times when some predator woman has done her thing. And yes it is different for boys and girls.
The author does point out an interesting case that thoughtful adults should consider. The conclusion, however, that the court made a mistake is wrong. The court did not, and should not, rule on whether the result in the case was morally correct. They are men, not gods. They were asked to consider whether or not the law, as written, had been faithfully applied. It had not. The law does not include standards for determining who below the age of consent could be charge with a statutory rape. The law does not say that the older child could be held responsible. The courts decision was the legally correct one. The failure here rests either on the legislators who crafted such a poorly conceived law or on the apparently compromised prosecutor. Is there no better way to deal with the mistakes of our children's sexual development than to criminalize them and condemn the unlucky to perpetual sex offender status?
Wow, Dr. Amy comes off as shrill and hysterical as the author. There's definately something personal motivating these comments. I guess we can drop the 'Dr.' part until she becomes more professional.
haha, oops. Amy IS the author. I forgot, the thread is so long.
A great deal is made of a very small age difference. There are lots of 11 & twelve year old girls out there who are precocious. Overall, girls mature faster boys both physically and psychologically. When I was in sixth grade there was an 11 or 12 yr old girl who was five eight or nine and fully developed. She was way ahead of all the boys and she knew it. She had an older boyfriend.

You seem to condemn the boy, but not the girls, for being sexual, but I can't see anything in your description of the case that justifies that. You seem to have a double standard. I am sure if the facts of the case were that the girls were not enjoying themselves, the amicus briefs would not have been filed.
I previously described the girls in this case as targets of opportunity. I was wrong. I think there is enough credible evidence that this boy is engaged in predation and specifically targeted younger girls who are easier to manipulate into sex than his fourteen year old female schoolmates. Most 14 year old teens go out of their way to stay away from younger kids because hanging out with them simply isn't cool. No teen wants to be saddled with an 11 year old who would likely have a Sponge Bob themed birthday party. This boy made a conscious choice to go against type and engage in sexual experimentation with girls who, while numerically close in age, are out of his social cohort. 11 and 12 year old girls are much more easily impressed and flattered by attention they receive from a high school boy and would likely go to great lengths to keep it. It is unacceptable for that boy to cash in on the admiration or even the crushes these girls may have had on him.

It is imperative to note that this boy did not just do this one time with one girl. He did it many times with three preteen girls. He is the high school boy who is the gigolo of an elementary school. That is disturbing. I am not willing to concede that these girls are the only elementary students he is abusing. How many girls would he have to abuse for some of you to decide that this behavior is part of an escalating pattern? If he were having sex with 5 girls instead of three would you be as comfortable shrugging this off?

Just because this boy is 14 does not mean his behavior should be prohibitive of designating him as a sexual predator. Indeed, it might just be spot on. The Mayo Clinic and the FBI say that most child molesters start out at a young age and target younger kids because they can physically overpower them, manipulate them, trick them, or blackmail them. This boy has developed a pattern and demonstrated a preference for girls who are younger than he is. Teenage sexual predators are less sophisticated than older sex offenders who are more practiced in grooming younger people, they use the technique nonetheless albeit in a cruder fashion. His preference for girls younger than himself warrant his separation from school because he is not going to get younger, he is going to get older and his field of victims is only going to get wider.

Charging the 12 and 11 year old girls with the same crime he has been charged with presumes that they have the same mental capacity and agency as this 14 year old boy. This is not about prosecutors just leaping to the conclusion that just because the girls are girls they are automatically victims. Their ages were taken into account which is appropriate. Parents let 14 year old kids to watch their 11 year old siblings or neighbors when they go to dinner, not the other way around because 14 year old kids have better judgment than 11 year old kids. Why? Because 14 year old kids who are not cognitively impaired have better judgment and a better handle on what behavior is safe and what isn't. I cannot believe that some of you are willing to assign the same level of blame when you would never leave your younger child in a supervisory position of your older child. In every interaction we have with children, most adults calibrate our behavior based on the age of the person we are dealing with. It is absurd to suggest that an 11 and 12 year old can form the same intent as the 14 year old, which would be the only justification for imposing equal criminal sanctions against each child.

I am puzzled by the "all the kids are doing it so it must be okay" justification for this behavior. It is not harmless and it is not a small matter. Consider the statistics surrounding teens and STDs . A 2008 CDC study showed that 26% of American female teenagers have an STD. As a black woman, I was particularly troubled to learn that 48% of black female girls have an STD. These girls are facing infertility, cervical cancer, and other devastating health problems as a result of engaging in sex acts which many of you are willing to shrug off as harmless sexual experimentation. Indeed, the declining age at which girls start menstruating is just one more reason to clamp down on their engaging in sex. And, boys are not equipped to deal with being fathers at a young age and if girls are getting STDs it is likely that boys have them too. This is a disastrous situation for all involved.

Do any of you honestly believe that because girls' bodies are maturing faster they will be better parents at their age or that they have more of a capacity to understand the consequences of sex . Should taller kids be permitted to drive earlier than their shorter peers because they can see over the steering wheel and their feet can reach the pedals?

Now, I am not saying that these girls should be shielded from the gravity of the situation. Their parents need to smarten up and teach them that if someone wants to have sex with them it is wrong and they are to tell them immediately. I do not think that punishing them for being victimized is right, though. Again, I think the significant age difference is dispositive of assessing equal criminal liability.

As I said before, the justice system has not been operating with parity when it comes to boys who are victims of women or older girls. This permissive attitude towards sex that some of you have been espousing is reflective of the disgraceful treatment of boys who are manipulated, abused, and assaulted by older females. The presumption that boys naturally "want it" and that their sexual impulses make the crimes against them any less grave contributes to this. All of you people who are defending this boy and bellyaching over the parents availing themselves of law enforcement and the DA's decision to file charges because sexual behavior is not abnormal behavior for tweens and teens are contributing to this. There should be an outcry against the abuse of kids no matter the sex of the victim or the offender. I wonder if you guys would be in favor of these parents looking the other way if this kid were having sex with 11 and 12 year old boys.
I have been shocked by the response, but not swayed in the least. The response is based on a bizarre assumption, the idea that because a 14 year old boy could be a victim, a 14 year old boy could only be a victim.

Most disappointing, as New York NY has also emphasized, is that everyone is recycling the same old misogynistic arguments about rape. So far I've heard that the little girls "wanted it," that 11 and 12 year old girls are sexually wanton, that the girls "made" the boy do it, that he didn't "understand" what he was doing, that the girls gave "consent."

But the most inane argument is the primary argument, that because a 14 year old boy could be a victim of someone else, he couldn't possibly be a perpetrator. Just because he can't give legal consent has nothing to do with whether he can be a predator. I am amazed that so many people can't seem to grasp something so basic.
"The response is based on a bizarre assumption, the idea that because a 14 year old boy could be a victim, a 14 year old boy could only be a victim."

No, you annoying person devoid of a nuance gland. We're saying that if you can't prove coercion, then while he's not the victim here, he's not qualified to be the victimizer either. That's ok, though. Nobody expects you to be swayed in the least. You're incapable of learning jack shut from others. Not everything is the purview of criminal courts. That's why we call them children. Oh, and 12 year old girls are often at least as mature, mentally and psycho-sexually, as a 14 year old boy.
Dr Amy,

Nowhere when you laid out your presentation did you state that the boy has been doing this over a period of time. You did not state anything about these girls not being neighborhood girls that he has been around all his life so the age difference with them is a social problem.

You did not state that the girl is not one day short of 13 and the boy is one day over 14. If fact you left his age out all together. Their age could be a lot closer than you make this appear.

Now NY has made a leap that is nowhere justified in the article.

"Just because this boy is 14 does not mean his behavior should be prohibitive of designating him as a sexual predator."

You're right. Show me where he is. Show me where these girls are not next door neighbors he grew up with and are girls that he sought out and targeted. Show me something.

"The Mayo Clinic and the FBI say that most child molesters start out at a young age and target younger kids because they can physically overpower them, manipulate them, trick them, or blackmail them."

Great, I'll agree that most do. That's like saying just because a kid is black, grows up in a one parent household, is shuffled off to grandmother, and is poor they are going to turn out to be drug dealers. (President Obama)

" This boy has developed a pattern and demonstrated a preference for girls who are younger than he is."

Where in this article is there a pattern. I don't see anything that says a year ago he did this, and 6 months ago he did that, and last week he did something else. Please show me the pattern where he has continued to go after girls he would have no social interaction with except for the fact he is targeting them.

From what I'm reading from the two of you is that girls can never do anything. They are always the victim. You have constantly side stepped the fact that girls can, and do, do the same things.
Dr Amy when I was growing up 10 year olds in an affluent area were getting pregnant. I was 13 in 9th grade...I imagine this kid was probably 14. There is a two or three age difference you're discounting the fact that these children were all consensually involved and ALL under 16.
>>Have these people lost their minds? The three girls in this case are in elementary school!
"Have these people lost their minds? The three girls in this case are in elementary school! Claiming that girls in elementary school “can enjoy sex and be sexually active” is a willful misrepresentation of everything we know about children and their decision making abilities."

You're right Dr. Amy. But the 14 year old boy is a child too, with the same diminished decision making abilities.

Can a 14 year old be a predator? Yes, of course. Was he in THIS case? Don't know without all of the facts. Do you?
...Not sure what happened to my last comment, but here I go again, only shorter this time.

Fact 1) The girls are 11 and 12.
Fact 2) The boy is 14. That's NOT a huge age difference.
Fact 3) All three children - yes, CHILDREN - are under the age of consent.
Fact 4) Females CAN behave in a predatory manner toward males.
Fact 5) We don't know who initiated the sexual contact - the girls or the boy.
Fact 6) If girls can do anything boys can do in the classroom, they can do it in the courtroom. Including being a defendant.

It's time to stop "protecting the flower of womanhood" and recognizing that kids are kids, and kids explore things sexually, and start adjusting our laws and our minds to accept those facts. How many people posting on this forum played doctor as kids, or spin the bottle, seven minutes in heaven, any of that crap? I did that. In middle school, just like these kids.

Also remember that girls psychologically mature faster than boys, so in all likelihood they are just as mature, if not more so, than he is. So who raped who? Nobody, in fact, raped anybody, and the fact that anyone is being prosecuted in this case is utterly ridiculous. The SJC did exactly the right thing to protect the rights of ALL the children involved in this case.
In cases where the children are the same age or the boy is also under the age of consent, why is it assumed that he was not also a victim? If he was willing and eager and able and initiated it, its crime. If a female of the same age did so to him, it isnt?

I know girls who were 12 and 13 and eagerly sought out sex from classmates and fellow students. Female children ride ponies, ride swings, play on seesaws etc in part because it is stimulating. Girls who have sexually matured are capable of sexual arousal and orgasm. So sorry, but to say that young girls cannot enjoy sex is false. That doesnt mean they should have sex, it means that they are quite capable of wanting and liking it.


While I believe CHILDREN should be protected from sexual exploitation by those older than them, it is patronizing and paternalistic to presume that females have sex only because they are pressured to do so by men, to totally eliminate female needs and desires from the equation.
That is not the old "she wanted it" defense, an older more mature person should be able to restrain him/herself.
I just came from my 13 year olds school today, some of those girls look as mature as I do. Some look indistinguishable from 18 year olds. When I was a kid there were plenty who would get fake IDs and go out and party, they lied to men about their age.And then 16 and 17 year old boys were on the hook because they had unwittingly hooked up with a 13 year old.

I think there has to be room for discretion. I was a pretty mature and very intelligent child, at 12 I could outthink a 16 year old boyI dont want society to declare open season on girls, but the girl isnt the "weaker" or more vulnerable party in every case.
Just because you don't have a statutory rape law that blindly hands down sentences to 14 old boys, doesn't mean that the state can't intervene in the situation and enforce appropriate consequences and rehabilitation. But you simply cannot have general laws that apply to children the same way they do to adults. Not in the diverse society we live in. The actual circumstances of this case need to be considered by a judge who specializes in these issues. The lawyers are right to try to bring down this law. It's unworkable. I feel bad for those girls. I hope they get the justice they deserve. But prison is no place for a 14 year old boy, no matter what he did.
"I have been shocked by the response, but not swayed in the least. The response is based on a bizarre assumption, the idea that because a 14 year old boy could be a victim, a 14 year old boy could only be a victim."

First off, like you, I don't know who initiated the act, however, it is a shame that you somehow stand behind this bizarre assumption that because a 14 year old boy can be the a predator, a 14 year old boy could only be a predator. You are the exact type of reason they are filing against sexual discrimination, because your entire logic is based on the fact that the child is a male. Even if the ages were reversed, it's clear to majority of the people here that you would still demand that the boy be held responsible as per your previous comment here: "A 14 year old boy cannot legally give consent to have sex with an older woman. That does not mean that he is not responsible for his actions in having sex."

"Most disappointing, as New York NY has also emphasized, is that everyone is recycling the same old misogynistic arguments about rape. So far I've heard that the little girls "wanted it," that 11 and 12 year old girls are sexually wanton, that the girls "made" the boy do it, that he didn't "understand" what he was doing, that the girls gave "consent."

Actually, no one is saying that they girls "wanted it" or "deserved it." However, you are using the same old misandrist argument that it's always the boys fault.

"But the most inane argument is the primary argument, that because a 14 year old boy could be a victim of someone else, he couldn't possibly be a perpetrator. Just because he can't give legal consent has nothing to do with whether he can be a predator. I am amazed that so many people can't seem to grasp something so basic."

You mean like the same insane primary argument from you that since a girl can be a victim, they are always the victim? You may say that you don't believe this way, but this entire time, instead of supporting the gender neutral standpoint that it is possible both sides are at fault, you continue to only attack the boy.

I suggest looking into a clinic for sexism, because you obviously have a deep underlying hatred toward males that needs to be resolved. Your next argument will probably try to label the rest of us as sexist, but remember, while we're here saying both sides should be looked into to determine the real instigator, you're demanding that right off the bat the boy is the problem without any evidence. Your entire article is based on deceiving the general population by listing middle school girls as elementary students, while ignoring the post the boy's age fully knowing that saying "high school football player" would cause us to instantly think of a 6'3" 250lb senior about to head off to college, when the kid just finished middle school himself (or based on your concept of school, he just finish elementary school).
I have 2 young boys, 10 and 11 years old. They have quite a few friends over every Friday after school. Mostly boys, a couple girls. Last Friday I sat in an adjoining room and watched as 2 girls coerced a group of 8 boys who wanted to go outside and run around the back yard pretending to be spies into playing a game of "spin the bottle". I watched uncomfortable squirming on the boys' part as the girls manipulated the game so that it went from hugs to kissing. Then I stopped the game and told them to find another way to entertain themselves. Shortly after which I watched the girls manipulate a few of the boys into fighting over them. The girls are 9 and 10. So the 11 year old boys raped these girls?
sinfield:

"The girls are 9 and 10. So the 11 year old boys raped these girls?"

That's a far cry from a boy having sex with one of the girls, isn't it? So why are you trying to compare the two?
Dr. Amy- You have used fact manipulation, strawman arguments and weakman arguments. You have chosen to ignore actual points from those who opposed your premise. You, as I have said before, have an ax to grind, and you won't let a pesky thing like facts get in your way.

I
Sorry to get meta here, but this is about the sixth Amy thread I've participated in, and it always ends up the same. She has a knack for picking interesting topics, but I have never ever seen her budge one iota from her initial viewpoint. Other people make valid points, but she ignores them and merely repeats her initial proposition with increasing levels of condescension. As others have said, she's incredibly rigid. Well-meaning people conversing in good faith get more and more frustrated. It's like arguing with a post.
Did anyone READ the article that Amy is referencing? Did AMY read the article she is referencing?

Let's settle some hypotheticals.

As to the boys age and the grade level of the girls:
"[the boy] is accused of engaging in various sex acts from August to October 2007 with three girls."

"[The girls were] two to three years younger and two grade levels behind the juvenile."

That leads me to conclude that the boy was 14 at the time (the girls were "two to three years younger "), and that puts the girls in 7th grade ("two grade levels behind the juvenile"). Where I have lived, 7th grade means middle school, NOT elementary school. Perhaps there is no division in Massachusetts. Perhaps kids go right from elementary to high school. But the vast majority of those commenting believe, as I do, that 7th grade is middle school. And to characterize these girls as elementary school girls seems like an attempt to create a greater divide in age/experience between the parties involved. Yet, given the time factor, these girls and boy could have all attended the same middle school together just months before the incidents took place.

As to the boy being predatory and whether or not the girls participated willingly:
"None of the complainants reported being afraid of the boy's behavior," Chief Justice Margaret Marshall wrote for the majority. "Indeed, sexual behavior seemed to melt seamlessly into games of 'manhunt,' 'truth or dare,' and 'making out.' Some of it occurred with more than one complainant present."

So this wasn't a case of straight up sex with little girls. And, in fact, this wasn't a case of one boy and one girl--Chief Justice Marshall states that some of it took place with "more than one complainant present."I also take it to mean that they all knew one another.

With the above in mind:
"The boy is facing nine charges, including three counts of statutory rape. He may be required to register with the Sex Offender Registry Board if convicted."

So these kids started out playing spin the bottle and it turned into "sex acts," which lead to sex. The girls themselves claim they were not "afraid of the boy's behavior" and from what Chief Justice Marshall says, "sexual behavior seemed to melt seamlessly," meaning that the girls went from first base to home run, not by force, but with free will. And now the boy might have to register himself as a sex offender? Really?

As to the family handling the incidents with each other:
"...the boy's father acted as the 'good parent ' and first alerted the girls' parents of the incidents and that his son is the only one facing a criminal sentence."
"...the boy has been expelled from school because of the charges."

I know, Amy, that you want to believe that there is this enormous, unbreachable divide in the reasoning capabilities and sexual natures between these girls and that boy. But, apparently, given the facts and nature of the case, the court doesn't see it that way. It seems none of the children involved were capable of calculating the pitfalls of their behavior--they (ALL of them) WILLINGLY behaved inappropriately. But it is the boy who is being vilified. It is the boy who has been kicked out of school. It is the boy who could have the label "Sex Offender" attached to him for the rest of his life. The courts are already admitting this isn't a case of a predatory boy, but of children willingly (however inappropriately) participating in sexual behavior. But the onus is on the boy? I'm not suggesting that the girls be accused of statutory rape: I'm saying, given the FACTS of the case, the boy should not be charged either, and the court should look at what has been brought up in the past to determine whether or not this is a problem.

I know it makes you (and me, and everyone else) uncomfortable (to say the least) to think that these young girls WANTED to have sex, but it appears to be the case. That is why the courts are looking into how prosecutors come down on children below the age of consent.

As the defense lawyer noted: "I'm not talking about anything involving force." Meaning that she sees the difference between a kid who takes advantage of another kid and kids who are all in it together.

Oh, and by the way: the ONLY person who has used the term "wanton" to describe these girls is you. Quit suggesting that commenters are using that term or believe the girls to be as such.

(Yes, Login ID, you are correct. I am arguing with a post, but I couldn't sit here and read everyone's comments without first going back to the article for reference.)
Amy:
"That's a far cry from a boy having sex with one of the girls, isn't it? So why are you trying to compare the two?"

Rape law involves events described as "criminal sexual contact". One particular class of CSC involved penetrative intercourse. Other types of CSC do not, but all can be "rape". Kissing is in the non-penetrative sexual contact class of CSC; specifically 4th degree. So is kissing the same as penetrative intercourse? No. But it can still be considered rape in the given circumstances, especially when painted with the broad anti-male brush you appear to be using.

Take my described scenario a bit further. If I had not stepped in, and the children had ended up engaging in intercourse, you seem to be of the mind that the boys would have been guilty of rape.
There should be a license required for practicing internet.
Sorry, I'm not buying any of it. A 14 year old boy having sex with multiple 11 and 12 year old girls sounds like potential predatory conduct to me. No matter how much the girls encouraged it, or whether they consented, it is still potentially statutory rape. The trial exists to determine whether the conduct meets the definition of statutory rape. The fact that the boy is underage is not a defense.

As far as I'm concerned, the defense ploy is nothing more than a ploy. It is the equivalent of the defense lawyer in a rape case trying to bog down the case by filing a motion claiming that since more men are charged with rape than women, the charge of rape is sexual discrimination. I bet the defense lawyer was surprised beyond his wildest dreams that he got the liberals on the court to buy this inane excuse.

The tactic is nothing more than a bad faith effort to keep the case from going to trial.
Wow, Dr. Amy is so missing the point here.

There's no question that an underage boy having sex with an underage girl meets the legal definition of statutory rape. There's also no question, however, that an underage girl having sex with an underage boy is also committing statutory rape. While prosecutors do have discretion in charging in a case like this, it is a fair question to ask whether this boy is being charged because he committed a heinous act or because the prosecutor has a policy of always charging boys and never girls. Contrary to what one commenter has said, prosecutorial discretion does not extend to allowing a prosecutor to discriminate in the execution of his duties.

So while Dr. Amy can stick her fingers in her ears and yell "la la la I'm not listening all boys are criminals and all girls are victims when it comes to sex," the reality is much more complicated than that. The fact that she's apparently incapable of even acknowledging that the case might be more complicated than she wants it to be indicates that she's more interested in grinding her axe than dealing with the complicated issues surrounding children and sex.

It's actually scary to think how Dr. Amy might be traumatizing her underage patients (if she has any) by either telling them that their (underage) boyfriends are predatory rapists if there's any evidence of sexual activity, or reporting said boyfriends to the police.
Dr. Amy said:

"It is the equivalent of the defense lawyer in a rape case trying to bog down the case by filing a motion claiming that since more men are charged with rape than women, the charge of rape is sexual discrimination."

If a women rapes a man and and a man rapes a woman, but only the man is charged with rape, then that *could* be sexual discrimination. That is the equivalent here. According to the law, the girls are guilty of the same thing the boy is guilty of -- sex with a person under the age of 16. But only the boy is being charged. It may or may not be sexual discrimination, the SJC simply is allowing the defense to investigate whether there is evidence of sexual discrimination or not.

Let's be clear, the lawyer is not saying that his client being charged with statutory rape is sexual discrimination. The lawyer is saying that it is discrimination to charge his client, the boy, but not the girls, who committed the same crime. The factas are against you on this one Dr. Amy.
tmesow:

"Let's be clear, the lawyer is not saying that his client being charged with statutory rape is sexual discrimination. The lawyer is saying that it is discrimination to charge his client, the boy, but not the girls, who committed the same crime."

No, that's not what the case was about. According to the Court's decision:

"On September 30, 2008, the Commonwealth appealed from an order and judgment of a single justice denying its petition pursuant to G. L. c. 211, § 3, [Note 1] to vacate a Juvenile Court judge's pretrial discovery order. The order issued pursuant to Mass. R. Crim. P. 14 (a) (2), [Note 2] as appearing in 442 Mass. 1518 (2004), at the request of the juvenile male (boy), charged with nine counts of sexual offenses, including rape of a child, G. L. c. 265, § 23 (statutory rape), [Note 3] which the boy allegedly perpetrated against three female children, who were his friends. At the time of the alleged offenses, between August 10 and October 15 of 2007, the boy was fourteen years old and entering the ninth grade, two of the girls were twelve years old and entering the seventh grade, and the third girl, who was born on October 15, 1995, was turning twelve years old and entering sixth grade. [Note 4] After his counsel unsuccessfully attempted to have the three girls charged with raping him in connection with the same alleged incidents, the boy sought discovery from the Commonwealth pursuant to rule 14 (a) (2), in order to investigate and, if possible, support his claim that he was being selectively prosecuted because of his gender. Cf. Commonwealth v. King, 374 Mass. 5 , 19 (1977) ("a female charged with prostitution or night walking would be entitled to a dismissal of the charges with prejudice on an appropriate showing that the police department or the prosecutor's office followed an unjustifiable policy of selective enforcement against female prostitutes and not male prostitutes"). The Juvenile Court judge granted the boy's discovery request and denied the Commonwealth's two subsequent motions for reconsideration. The single justice upheld the judge's order. In essence, the Commonwealth contended that the boy failed to present any evidence that would upset the "presumption of regularity" that attends its decision to initiate proceedings against him, that the material he seeks is neither relevant nor material to the charges against him of statutory rape and that production of the information he seeks would be onerous and implicate the privacy of others."

What really happened is that defense counsel is repeatedly filing motions to delay the trial. First the lawyer filed a motion asking that the girls be charged with raping the boy. That motion was denied.

Next, the lawyer filed a motion to initiate discovery in an attempt to prove that the Commonwealth discriminated against the boy because of his gender, and that the statute is applied selectively.

The trial judge granted the motion; the prosecution has appealed the ruling repeatedly, ending up in the Supreme Court.

The defense is attempting to delay the trial by claiming that the law regarding statutory rape is applied in a discriminatory way. It is unrelated to whether the girls in this case are charged.
Are you really so blind that you cannot see yourself proving my point?

"What really happened is that defense counsel is repeatedly filing motions to delay the trial. "

Defense lawyers always do this. It's how you defend a client. It has nothing to do with what the lawyer believes, it's Defense 101.

"First the lawyer filed a motion asking that the girls be charged with raping the boy. That motion was denied."

This is the lawyer setting up the point he is making in the motion in question. If the girls are guilty of the same offense, they should be charged as well. So the lawyer motions for the girls to be charged. This is denied. It sets up the case that the boy is being discriminated against.

"Next, the lawyer filed a motion to initiate discovery in an attempt to prove that the Commonwealth discriminated against the boy because of his gender, and that the statute is applied selectively."

This is part 2 of the lawyer's point. He motioned for the girls to be charged which was denied. Now he's trying to show that the reason the boy was charged and the girls weren't charges is sexual discrimination. In order to *attempt* to argue this, he has to motion for discovery so that he can find evidence to argue his point.

"The defense is attempting to delay the trial by claiming that the law regarding statutory rape is applied in a discriminatory way. It is unrelated to whether the girls in this case are charged."

We're agreed that the lawyer is attempting to delay the trial. That's also his job as the lawyer for the boy. As part of this, he is attempting to show that the law is being applied in a discriminatory way. From your original article:

"Therefore, the boy’s lawyer offered a novel assertion: Since all parties were under the age of consent, prosecuting *only the boy* is sexual discrimination."

They key words being 'only the boy'. 'Only' refers to the fact that the boy is being charged and the girls are not -- this is the point the lawyer is making and the same point that you somehow claim is unrelated. Why are you not outraged that these girls had sex with someone under the age of 16 and are not being prosecuted for it?
Minor follow up -- it seems your main point is that you are upset that the boy had sex with these girls that are so young. But somehow you tie this into the supposed audacity of using sexual discrimination as a defense against the charges. That you are upset about point A is perfectly valid and if I personally knew any of the parties involved I would likely be upset as well. But point A has nothing to do with point B, which is whether or not the boy is being discriminated against. Let's use one of your adored hypotheticals:

Suppose instead of the boy having sex with these 3 girls, that rather he and the girls in question robbed convenience stores. But only the boy ends up getting charged, despite the fact that all four of them committed the same crime. The boy's lawyer then wants to argue that his client is being sexually discriminated against. Would you be nearly as opposed to the idea as you are in the actual case?
Dr. Amy said: "So far I've heard that the little girls "wanted it," that 11 and 12 year old girls are sexually wanton, that the girls "made" the boy do it, that he didn't "understand" what he was doing, that the girls gave "consent."

If that is ALL you've heard you've not been reading the comments very carefully have you? It would appear all you've heard is that people who posit that it is POSSIBLE that girls have the motives you ascribe to boys and boys have the weakness you ascribe to girls are in fact arguing that those are factual assessments of what happened. Calm down, take a breath, take off the blinders of your social prejudices and READ.

To summarize there seems to be two rational arguments going on that you seem to not want to acknowledge:

1. On a purely legal basis (under which all parties should be equal before the law) in cases where all the participants are under the age of consent yet only one gender is routinely charged with a crime then an inquiry about discrimination is indeed valid.

2. On an ethical basis the assumption that in any sexual encounter between boys and girls under the legal age of consent, boys must be the sexual predators and girls are incompetent victims, reveals what would appear to be grossly unfair and discriminatory beliefs on your part.

Lets not confuse the instigator of an event with the one solely responsible IF were are not talking about overt forceible rape.
Dr. Amy writes, "Moreover, the SJC and Wunsch willfully ignored the ages of the girls and the age difference between the girls and the boy. The boy was charged because he was older, significantly older. "

Evidently she needs to research the average ages of kids in school. Most freshman in HS are 14 and turn 15 at some point during the year, although in my day, a few of my classmates were 13 and turned 14 that year of school. Well she already provided that the state has ruled a 15 year old girl with her 17 year old boyfriend is okay...I'll see if I can do this math...I think that's 2 years, but you are the Dr., you should probably check my work. Last I checked, if he's 14 and she's 12, that's also 2 years and then we have 3 for the last...and if she was the same grade as the others, she probably was only days from being within 2 years as well. Especially given that her wonderful example of the significantly older age difference involved someone 15 and 45; I think 2, 3, or 4 years at absolute worst pales in comparison.
In the end, the main point of the case is that the law is not fairly applied to both genders. Prosecutors would be much, MUCH, MUCH more hesitant to pursue those same charges if the "older" freshman had been female and the "younger" students male, or even female at the point.

But if we are okay with other laws being used unfairly, why should we complain here? Anyone who supports this should clearly not rail against the death penalty being unfairly applied to blacks and other minorities. Or even just the justice system being more harsh in general. I know none of you want to be hippocrites.
Let's take a look at the questions and answers that come directly from the state in question for this case:

What if the person under 16 wants to have sex?

Under the law, a person under the age of 16 may not consent to having "sexual intercourse" or "unnatural sexual intercourse." Therefore anyone who has sex with a person under 16 does so without that person's consent. It is rape. Even if a person under 16 says "yes", having sex with a person under 16 is a crime.

If we are to believe this, then all must be charged, not just the boy. Even if you WANT to just charge the boy, there is more clarification below because charging ANY of them would be wrong as you will see below:

What if I am under 16 and want to have sex?

This law does not punish a person under 16 for having sex, so you would not be charged with a crime if you had sex. However, your partner would be committing a serious crime.

Does it need to be spelled out any more clearly. The parties under 16 are not charged...last I checked, that's ALL of them!

Pretty crazy to have all this discussion that is so quickly answered by the state itself.
Huh???

It's obvious. He was 12. They statutory raped HIM.

They were 11. He statutory raped THEM.

It cannot be both ways. Either the girls are incapable of making the decision to have sex and are therefore scarred for life and someone must be punished (in which case the boy is scarred for life and someone must be punished) OR everybody is ok.

Put them ALL in jail.

Or put none of them in jail.

Gender is irrelevant and not mentioned in the law. The law also mentions nothing about the relative age of the children.
Amy,
I’ll be happy to do your thought exercise. The difference between a 14 year old boy and 44 year old man is everything. A 44 year old man has the presence of mind to do two things that a 14 year old cannot. He can understand the consequences of his actions and he can use the system of trusting adults to control a child. We want to encourage children to trust adults, and so we put in place certain laws to discourage adults from abusing that trust. Ultimately the difference between a 14 year old boy and a 44 year old man is the same as the difference between an 11 year old girl and a 44 year old woman. One has a developed enough brain to understand what is going on, the other does not. There is no way this 14 year old boy understood how wrong what he was doing was. A 44 year old man is perfectly able to. If he is convicted, he will have to register as a sex offender for the rest of his life. How can you consider him competent enough to be held responsible for his actions to the degree that it will affect him for the rest of his life?
And,
You are wrong about what the defense attorney is saying; you even proved it with what you stated. The defense attorney tried to have the girls prosecuted not to actually get the girls prosecuted, but to demonstrate that they weren't prosecuted. He then filed a motion for discovery, so that he could use the documents he submitted to try and get the DA to prosecute the girls as evidence that the DA was unfairly prosecuting only boys when all other relevant factors are the same. It is entirely about them only prosecuting the boy and not the three girls. Before this case, it’s unlikely there have been any cases like this that the Commonwealth had prosecuted where both parties were under age. So he submitted a brief to attempt to get the Commonwealth to prosecute the girls, since from a legal standpoint they committed the same crime as the boy did. The Commonwealth refused to prosecute the girls, and so the defense submitted a motion for discovery. What he will do at discovery is retrieve the documents that show he demonstrated to the Commonwealth that the girls committed the same crime. He is saying he needs those documents to prove that boys are unfairly prosecuted by the Commonwealth, which is true. That is what the fight is about. After the Supreme Court refuses to take this case, which they probably will, he will get those documents, then present them to the court, the court will likely rule the case invalid due to unjust use of prosecutorial discretion.
Sample of 1612 children (1327 girls and 285 boys) and is younger than 16 years, tested sexual violence, has been generated on the basis of the records made at Institute of forensic medicine of state of Victoria. In this establishment all necessary medical examinations on demand of police or services of social protection and protection of personal safety are spent when the sexual violence over children is suspected. All examinees included in research were born after 1950 and till 1991, all had an established fact of sexual violence. my site: Apex Professionals LLC
As I read this and other related articles, the judges were not 'bitterly divided' as noted in the Boston.com article. Let's count them, three Supreme Justices sided with the boy; plus the Single Justice in a previous failed appeal by DA Cruz, plus the lower court judge on two noted appeals ruled in favor of the boy. Two Supreme Justices dissented. So five judges ruled in favor of the boy and two dissented. i.e. 70% of the judges who have reviewed the details and viewed the SAIN video interviews of the girls have ruled in favor of the boy. 70% in favor of the boy is not a bitter division! Add to that, the ALCU in Massachusetts and nationally through the New York office is siding with the boy.

The question in my mind is why is this case even in the courts wasting taxpayer money; per the SJC SLIP Opinion, the three girls admitted on video tape to the SAIN interviewer that the sexual activity/games (truth-or-dare) was consensual, all four kids were under the age of consent (16) in Massachusetts and therefore should be "protected by" not "prosecuted under" the statute; or inanely all should be charged as 'felon sex offenders'. That's a scary thought if this is the true intent of the cited statute as passed by the Massachusetts legislators. And, in my opinion, charging only the boy will clearly be a discriminatory embarrassment for DA Cruz, his staff, and the Clerk Magistrate.

In the end, again in my opinion, it is sadly the children, especially the boy, who will be emotionally scarred for life from the injustices evident in these gratuitous charges at the hands of an injudicious and discriminatory District Attorney.

Note: the boy's lawyer is a well known Boston defense attorney, so if she has seen the statistics and is 'compelled to fill a motion to dismiss' I would be willing to bet that the statistics do show that DA Cruz and his staff discriminate in these cases.

Based on the Massachusetts statute, the girl's have admitted to felony sex offenses against the minor boy in this case. They could well be charged and convicted as felony sex offenders for their statutory crimes against the boy in this case. The statute applies equally and does not discriminate between boys and girls.

Why would the mothers of these three girls even go to the police to begin with, this is clearly a family matter to parent the children, not prosecute. And where are the fathers of the three girls?? The father of the boy tried to do the right thing, and his son ends up facing multiple felony sex offender charges for playing truth-or-dare. Again, how inane!

Sorry Amy and many commenters, but I disagree with the whole underlying premise of your counter arguments to the SJC's ruling in this case; Justice Marshall and others got this one right. The two dissenting justices are in error, the Massachusetts statute does not support age difference as justification to charge the boy and not the girls in this case. The statute is clear and not in dispute; as inane as this outcome is to rational thinking. The Massachusetts legislation needs to correct this and adopt Romeo and Juliet exceptions just as 38 other states have already enacted.
None of the kids in this case should be prosecuted. Mutual consensual sexual activity where all parties are under the legal age of consent is a matter for “parenting”, not “prosecution”.

No offense to any of the previous comments, but studies of early childhood development and adolescent psychology do not support that by age 14 kids "have a pretty good idea of sexuality and moral applied to it." To the contrary, studies show that the human brain is still developing throughout childhood, adolescence and into early adulthood, especially those areas related to sexuality and more so morality.

Regardless of mental, psychological and sexual maturation, the Massachusetts laws are clear that NO ONE; male or female, “under the age of 16” can consent to sexual activity.

The boy in this case was only 14 and therefore, regardless of their age, the girls in this case could be charged by their own admission of felony statutory sex crimes for the acts they committed against this minor boy. Read the Massachusetts statutes; there is no reference to “gender difference” or “age difference”, only that any person who engages in sexual activity with any person “UNDER THE AGE OF 16” can be charged with the felony crime of statutory rape and face punishment of imprisonment up to life for the first offense.

In my opinion the above outcome is an insane judicial result; underage kids being victims and being charged as a perpetrator. The rational approach by the DA in this case should have been not to charge any of these underage kids.

To charge only the boy under the Massachusetts statute clearly suggests a discriminatory application of the laws in this case.
I believe that in this case the statutory rape laws are DEFINITELY discriminating. I don't know what others are reading, but there are 2 points to ponder. #1 They did NOT specifically mention the boy's age. #2 Not everybody reaches high school at the same age. The article unfairly states the boy is a "high school freshman football player" painting him as much bigger, stronger, and older than all the girls involved, which may or may not be true. I know that, personally, I started high school at the age of 13. If that is the case, this boy may be within a year of two of the girl's ages, possibly without much of a size difference at all! It is also likely that all four children are in developmentally similar stages.

We are ALL sexual beings, and kids are curious by nature. Add to that the constant barrage of sexual content through out every avenue of media? It's time to take our blinders off, stop pointing fingers, suck up to reality and assume personal responsibility for the consequences to our actions!

As a nurse, mother and victim of child abuse myself, I am not in any way condoning the actions of these 4 kids, but it is totally unjust to place more of the blame on one child than the next. Parents? Wake up. June and Ward Cleaver never existed and "Gosh, Beave..." neither did their kids!
Don't look now Doctor, but your bias is as plain as the nose on your face. All of the parties involved in this case were under the age of 16, all were willing participants; how do you pick one out of the group and charge them with statuatory rape? Oh wait, there was a male involved...problem solved, according to you we have to protect girls, nevermind the boy.
You suggest that the girls involved were not capable of giving consent when they obviously did (so did the boy). How are they not capable doctor??????

There is no question statutory rape laws discriminate against boys, not so much because of the law itself but because of the blatant bias that permiates throughout our society against men and boys.

Sorry doc, but in the end, your rant is nothing above hardline feminist talking points; blame males, refuse any responsibility, and project females as victims when it is to their benefit.
If anyone should have been held accountable for this it should have been ALL OF THE KIDS INVOLVED.
The SJC without question made the correct ruling.