Vermont Statutory Rape Law When Two Juveniles Are Involved

The primary purpose of Vermont's statutory rape law is to protect children from harmful sexual contact. This is no less true when two juveniles are involved. Indeed, in the latter situation, not only is the victim protected, but the "perpetrator" is subject only to delinquency proceedings aimed at rehabilitation rather than punishment. Under the majority's holding, a fifteen-year-old minor cannot be found delinquent for the statutory rape of, say, a nine-or ten-year-old minor. The majority states that this will not impose any great burden on prosecutors because they can always seek an adjudication of delinquency based on an allegation of forcible rape under 3252(a)(1). This reasoning creates the bizarre anomaly that the term "a person" contained in 3252(a) means "a person over sixteen" when used in conjunction with subsection three dealing with statutory rape, but means "any person, including a person under sixteen," when used in conjunction with subsection one dealing with forcible rape. More importantly, the majority fails to acknowledge that there will be instances, not unlike the present case, where the coercion is subtle and results from the different age, mental capacity, or maturity of the participants engaged in the conduct. Although a juvenile court might conclude in some cases that coercion was involved simply because the victim's age precluded true consent, there will be other cases in which forcible rape will be difficult to prove, notwithstanding the presence of subtle coercion resulting from the age differential of the participants or other factors. In criminal statutory rape cases, the use of force or coercion is relevant at trial not only for purposes of sentencing, but also to help the factfinder to understand the nature of the offense and weigh the credibility of the witnesses. See State v. Searles, 159 Vt. 525, 529-30, 621 A.2d 1281, 1284 (1993); State v. Thompson, 150 Vt. 640, 645-46, 556 A.2d 95, 99 (1989). The same applies in delinquency proceedings, perhaps more so. One could argue that prosecutors should be given the discretion to bring delinquency petitions against juveniles based on an allegation of statutory rape, and to demonstrate that providing the alleged perpetrator with rehabilitative services would be appropriate under the circumstances because of the age differential of the participants or the existence of other factors suggesting that coercion was at work.