Minor's Right to Sexual Privacy ?
We have not had occasion to determine the extent to which privacy is protected generally under the Vermont Constitution, see State v. Barlow, 160 Vt. at 528, 630 A.2d at 1300, although other states have found such protection even in the absence of a specific privacy provision. See, e.g., Powell v. State, 270 Ga. 327, 510 S.E.2d 18, 22 (Ga. 1998).
In Barlow, a statutory rape case involving an adult defendant, we did not decide whether minors have a right to privacy in sexual matters under the Vermont Constitution because we concluded that the state had a compelling interest in protecting minors that was served by the statute at issue. 160 Vt. at 528, 630 A.2d at 1300.
We noted concerns about the dangers of pregnancy, venereal disease, damage to reproductive organs, the lack of considered consent, heightened vulnerability to physical and psychological harm, and the lack of mature judgment among the many significant interests of the state. See id. (citing State v. Munz, 355 N.W.2d 576, 585 (Iowa 1984)).
We also stressed our concern for protecting the well-being of minors from exploitation. See id. at 529, 630 A.2d at 1300 (quoting State v. Searles, 159 Vt. at 528, 621 A.2d at 1283.
Although we again do not decide whether sexual privacy is protected by the Vermont Constitution, we do not believe that Barlow is necessarily inconsistent with such protection for consensual sexual activity between minors.
In a case relied upon in Barlow, the Florida Supreme Court found that a minor's right to privacy did not protect an adult from statutory rape prosecution, even though the minor consented to the sexual activity. See Jones v. State, 640 So. 2d 1084, 1087 (Fla. 1994).
When the court confronted a similar question in a case where the sexual activities were between juveniles under the age of consent, the court found that the State failed to demonstrate the compelling state interest to justify this application of the statutory rape statute, noting that the statute was "not being utilized as a shield to protect a minor, but rather ... as a weapon to adjudicate a minor delinquent." B.B. v. State, 659 So. 2d 256, 260 (Fla. 1995).
But see J.A.S. v. State, 705 So. 2d 1381, 1385 (Fla. 1998) (statutory rape charge of fifteen-year-old boy for having consensual sex with twelve-year-old girl did not violate boy's privacy rights).