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Rape of a Child- Exclusions For Consenting Minors

Young offenders below the age of 13 were meant to be excluded from criminal conduct when they have engaged in consensual sexual intercourse


I was recently reminded of a situation when I was interviewing a client that merits a brief discussion. In 2002, the Pennsylvania Superior Court held that actions of two juveniles less than 13 that was consensual in nature, is not a crime. In re BAM, 806 A.2d 893 (2002). There, two eleven (11) year old males engaged in anal intercourse in a wooded area. The actions of both were consensual.

The Court held that the legislature did not intend to criminalize consensual activity between peers. Rather, it is clear that both the rape and involuntary deviate sexual intercourse statutes were designed to protect younger children from older predators. Children less than 13, by virtue of their immaturity, lack of information, or uninformed judgment, were unable to consent to sexual relations with those older than 13. Therefore, the legislature enacted a law that, by virtue of age, was designed to protect those less than 13. In essence, they cannot consent. The purpose of the law was not to protect two juveniles less than 13 from engaging in acts of consensual sexual activity.