[dda-II]

Statutory rape is called statutory rape not because it is rape in the common sense of sex without the consent of the raped. It is a stautory construction where it is incidcated that someone below a certain age is incapable of giving informed consent. This goes for people who are unconscious, feeble minded, etc. as well.

One may haggle about the age but it is clear that there are people who are not yet sophisticated enough to make an inteligent and knowing decision in the area of sex.

In California, there are various types of statutory rape depending not only on the age of the raped but on the age of the rapist. An 18 year old having sex with a 17 year old is not treated the same way as a 27 year old having sex with a 10 year old. This is because the inequality in the ability to judge and cajole is much different in the latter over the former.

It is a defense to statutory rape in California that the victim could reasonably have been assumed to have been above the statutory age. Thus the appearance of the victim would be relevant to guilt or innocence but not necessarily to punishment. I find it virtually impossible to believe that a 10-year old could be mistaken for a 16-year old in any circumstances. Hiowever, I can see a judge wanting to take in to account what the girl looked like at the time in deciding just how wrong the action was and what punishment was appropriate.

If the girl looked 14 say then the punishment might well be less than if she was wearing her girl scout uniform and carrying her school books for 4th grade.

The law in this area should retain a degree of flexibility as to punishment. However, it must be remembered that the men either pled guilty or were convicted of the crime. Thus they either abandoned the defense that she looked 16 or it was rejected at trial. Either way they deserved punishment. For the judge to have gone so leniently either the evidence must have indicated that she sid look older than 10 or the judge was a paedo himself.