What is Consent Age in the Commonwealth of Virginia?
The age of consent in Virginia is an essential element in the sexual abuse statutory section found in Virginia Code sections § 18.2-61 through 18.2-67.10. The age of consent, regardless of gender, is 18 years old. In laymen’s terms, you can be charged with rape or aggravated sexual battery in Virginia if you have sexual intercourse or fellatio with a person under the age of 18. The age of consent protects citizens from wrongful sexual activity (be it coerced, forced, aggrieved, or simply without affirmative consent) by someone with authority or power over them.
In the military, the legal age of consent is 16 years old. However , that does not mean you are going to have it any easier having been charged with statutory rape in Virginia. The only exception to the law for statutory rape is when the defendant and the victim are both within three years of age. That means, for example, if a 17 year old, who is a high school junior, has sexual relations with her 15 year old boyfriend, who is a sophomore, then they are both within three years of each other. Those facts likely would not result in a criminal charge for statutory rape. However, if she was 19 years old and he was 15 years old, the age of consent issue becomes moot. Interested readers may want to read about the Virginia Statutory Rape lawyers on our firm website.
Virginia’s Age of Consent Laws Through History
To understand the current age of consent in Virginia, it is helpful to put it in the historical context of other times the consent laws changed before and after Virginia became a state.
In 1597, the English Parliament set the age of consent at 12 for girls. However, the ecclesiastical courts had jurisdiction over sex crimes, and canon law required proof of penetration and did not allow prosecution of a rape if the victim was pregnant or had been with her husband. Rape was not a serious crime in the eyes of the law. Canon law also covered marriage. Consent was expected of young girls once they married, so the age of consent became meaningless.
England, like other nations in the mid-1800s, reformed the criminal laws that had governed for centuries. All of the sexual offenses were codified in 1861. The reforms meant setting an age of consent for girls (and boys) prior to marriage (or prior to the age when the church would expect them to marry). The age of consent laws eliminated the direct and negative impact of ecclesiastical law on canon law. In England, the result was a higher age of consent than customary canon law allowed.
The United States began emancipating itself from British rule in the 1770s. At the beginning of the American colonies, the law punishing the rape of a free white woman was enacted. It established that there must be force or threat of injury or death for non-consensual sex. A conviction for rape meant only transportation for seven years, if the evidence was otherwise weak.
Colonial Virginia passed its first laws against sex crimes in 1779, originally punishing rape with the death penalty. The age of consent for rape and other sex crimes in Virginia was 10 years. By 1810, Virginia increased the age of consent to 12, but the recent history of going easier on sex offenders continued. By 1852, the law against incest made the age of consent 15 and ended the punishment for rape of a free woman: only a slave could suffer the death penalty. In 1860 a law enacted for free women raised the age of consent to 16 years, but allowed 13 as the age of consent with a misdemeanor charge possible. In 1861, the new government (since the Civil War had started) changed the law again, prohibiting cohabitation with any man outside of marriage. It also made assault of one’s wife a felony. It established statutory sentences for rapists.
Virginia’s penal code of 1871 establishes the age of consent as 10, but only defines the crime of rape of a free white woman. It also prohibits dueling and established treatment of illegitimate children. In 1884 the law abolished the death penalty for rape. The age of consent was not specified. Another penal code enacted in 1904 defines rape of a free white woman but still does not set the age of consent. The legislature made a strict hierarchy of penalties for rapists based on the evidence and the character of the victim.
Legal Penalties for Age of Consent Violations
Violating Virginia’s age of consent laws can have serious legal repercussions for both minors and adults involved. For minors, the law focuses less on punishment, and more on counseling. However, individuals over 18 who violate the law can face serious criminal charges, including sexual battery, abduction with the intention to defile, or rape. These charges can lead to severe penalties, including incarceration, fines, and long-term damage to personal and professional relationships due to the stigma associated with sexual offenses.
Sexual battery is a misdemeanor that can be charged when a person has sexual intercourse with a minor over 15 years of age. The penalty for sexual battery is up to one year in jail and a fine not to exceed $2,500. Criminal convictions also harm relationships with family and friends and can limit future employment opportunities.
Rape is a felony in Virginia that carries a penalty of five years to life in prison, required registration as a sex offender for life, and a lengthy term of supervised parole. Rape may involve either forcible sex or sex with someone who is less than age 13, which is considered forcible under the law. The law does not look at consent in such cases. Abduction with the intent to defile, meanwhile, carries a penalty of five years to 30 years in prison, a finding of sexual dangerousness (self-rehabilitation is a prerequisite for any parole), and registration as a sex offender for life.
Ever changing, age of consent laws are applied differently depending on the circumstances of any case. Violating age of consent laws is not a victimless crime. If you’re charged with a crime involving age of consent laws, consult an experienced Virginia sex crimes attorney to protect yourself from the penal system. It’s essential to know and abide by Virginia’s age of consent laws to avoid the troubling consequences if they are violated.
Exceptions and the “Close-in-Age” Exemption
Virginia law contains exceptions to the age of consent in certain scenarios. Specifically, the statute allows a close-in-age exemption applicable in cases where the victim is of minimum statutory age and the defendant is at least ten years younger than the victim but less than three years older. The close-in-age exemption applies only to Virginia Code 18.2-61 (rape), 18.2-62 (forcible sodomy), or 18.2-67.3 (object sexual penetration) as they relate to consensual conduct between minors who are at least fifteen years old. These three specific crimes would otherwise require Virginia Code 18.2-355 unlawful sexual conduct with a minor for persons over the minimum age of consent and under the close-in-age exemption. These three specific crimes are excluded from Virginia Code 18.2-355 because the General Assembly recognizes the sexual offenses listed in Virginia Code 18 . 2-355 and does not see a need to include them in the close-in-age exemption provision.
Some examples of situations where the close-in-age exemption may apply are as follows:
Example 1: Bobby is sixteen years old, and Sally is fifteen years old. Bobby and Sally engage in consensual sex. If prosecuted, Bobby may raise the close-in-age exemption to avoid prosecution. Example 2: Randy interacts with Beth on an online chat room, and as a result meets her and engages in consensual sex. Randy discovered afterward that Beth is 15 years old, and thinks that he may have committed a crime. In Virginia, he may raise the close-in-age exemption to avoid criminal prosecution. Example 3: John is sixteen years old. Chris is seventeen years old, and is about to turn eighteen. John and Chris engage in consensual sex. If prosecuted, John and Chris may raise the close-in-age exemption to avoid prosecution.
Age of Consent Similarities and Differences From Other States
The differences in the legal age of consent from state to state can add a layer of complexity to statutory rape laws, regardless of which end of a relationship the charge lies on. In Virginia, a person must be at least 18 years old to give consent. As the age of majority, 18 is the legal age for contracting, marrying, and most other rights and responsibilities in the Commonwealth. 18 is also when a person can legally consent to sexual activity.
In Delaware, the age of consent to get married is only 19. In other states that do not allow individuals younger than 18 to marry, the statute defines 18 as the legal age of consent for sexual activity. The exception to the rule of 18 appears to be Hawaii, where there is a downward regional anomaly. In Hawaii, the legal age of consent is 16. It seems likely that the number of military personnel from the national bases in Hawaii may have influenced this later age of consent. Statutory rape laws can affect military men and women stationed away from home.
Maine and Washington D.C. are also regional outliers with less restrictive laws. In each, the age of consent is 16. In the District, it is worth noting that if a person is as much as five years older than a minor, that person could still be prosecuted for statutory rape. This exception is not present in Virginia, which follows federal law that allows people of similar ages to engage in sexual activity without fear of criminal consequences.
In contrast to these notable anomalies, most states toe the line of the national average with 18 being the legal age of consent. New York is another outlier, with a minimum legal age of consent of 17. The only state where the age of consent is more than 18 is New Jersey, where residents must be 19 years old to legally consent.
Considerations When Parents are Involved
The immense responsibility of children and young adults shifts to parents, guardians, and other responsible adults when considering the age of consent laws. In Virginia, parents and guardians are statutorily granted the authority to act in the best interest of their children. More specifically, parents are legally permitted to exercise supervision over their child’s daily activities to ensure their health, well-being, safety, and protection. Parents and guardians must be well-informed of the laws surrounding consent and sexual activity to educate minors and enforce these laws on their children.
Virginia law provides criminal liability for adults and minors who engage in unlawful sexual acts with children. While parents and guardians do not incur liability for children under the age of 18 who disobey the law , they are responsible for guiding and educating minors to deter delinquent behavior. Illegal sexual conduct between minors who are subject to Virginia law may also incur the responsibility of parents or guardians. Virginia law (Va. Code § 16.1-241) states that courts may impose community service on a parent of a juvenile found delinquent of unlawful sexual conduct. Courts may also punish parents who contribute to the delinquency of their child if it satisfies the conditions of Va. Code § 16.1-273.
It is imperative for parents and guardians to adequately advise minors on the illegal nature of sexual conduct with persons of a similar age. In strengthening the innate moral guidance and supervision mandated by parental and legal authority, adults preserve the mental and emotional well-being of their child while safeguarding their own legal rights.