ACLU of Florida Statement on Prosecution of 18-Year-Old Kaitlyn Hunt

[Ms. Toad]

90. Plenty - and apparently you are not clear, yourself, about the applicable laws

The age of consent has to do with the age at which a child can consent to have sex with anyone (regardless of whether her partner is another child or an adult). Below that age, any child engaging in sexual activity can generally be adjudicated a juvenile delinquent by reason of sexual activity.

In addition to the child being delinquent, an adult may be guilty of contributing to the delinquency of a minor or of statutory rape - but not always.

(I am using statutory rape as shorthand for any crime for which an older participant can be charged merely because sexual activity of some sort took place and the ages fit the statute.)

So there could be:
two minors both below the age of consent
two minors one below and one above but within the age range that makes it not rape
two minors one below and one above outside the age range that makes it not rape
a minor and an adult within the age range which makes it not rape
a minor and an adult outside the age range (or cutoff) at which it is not rape.

(Aand a few other variations I won't bother to list) The individuals who could be charged in each case are different

in the first, both could be adjudicated delinquent.
In the second, one could be adjudicated delinquent and the second charged with nothing
In the third, one could be adjudicated delinquent (statutes will vary on this) and the second charged either as an adult with statutory rape or contributing to the delinquency of a minor - or adjudicated a juvenile delinquent by reason of statutory rape.
In the fourth, the first could be adjudicated a delinquent and the adult not charged at all (or at most with contributing to the delinquency of a minor)
In the fifth, the adult could be charged with statutory rape

The laws on this matter are pretty complex - and much more suited to review on a case by case basis (within a peer group - like high school, with 18 year olds peers to 14 year olds, or college with 17 year olds peers to 21 year olds).

Statutory rape provisions (by whatever name) are intended to replace the force element in rape with a presumption that force occurred by virtue of the difference in power/age. That presumption does not work well across the board within peer groups - and really should be looked at on a case by case basis. If the 14 year old was in middle school, this would be a different question in my mind. If Kaitlyn had graduated and come back after being out on her own for a year, this would be a different question. These girls were in classes together, on varsity sports teams together, and in general acted as equals because that is how their school designed it. The law should take that into account by looking at the circumstances - just as it does in every other sexual offense crime in which it evaluates whether the activity was against the will of one of the participants.