- Email: [email protected]
Nursing practice and statutory rape
Nurs Clin N Am 37 (2002) 393–404
Nursing practice and statutory rape Effects of reporting and enforcement on access to care for adolescents Catherine Teare, MPPa,*, Abigail English, JDb a
6060 Harwood Ave., Oakland, CA 94618, USA Center for Adolescent Health & the Law, 211 No. Columbia Street, Chapel Hill, NC 27514, USA
b
Statutory rape laws, typically enforced only rarely over the past few decades and considered quaint by many, have come back into fashion. States from Florida to California, Wisconsin, and Massachusetts have revised their statutory rape laws or urged greater enforcement of existing laws in an effort to combat teen pregnancy, address male responsibility, and end welfare dependence. Nurses and other health care providers have been at the center of this whirlwind, particularly in those jurisdictions where statutory rape mandates a child abuse report. This article addresses the effects of increased statutory rape reporting and enforcement on adolescents’ access to health care, and on nursing practice. We briefly review the epidemiology of statutory rape, provide an overview of federal and state laws, examine the effects of increased reporting and enforcement on adolescent patients and on nurses, and conclude with policy and practice recommendations. Epidemiology Several studies have linked a majority of teen births (among other bad outcomes) to girls having sexual partners who are adults. That many girls have older boyfriends—and that many girls who are minors (ie, under the age of 18 in almost every state) have boyfriends who are adults—comes as little surprise. In the United States, mothers are typically younger than This work was supported in part by a grant from the Ford Foundation. The views expressed are those of the authors alone. * Corresponding author. E-mail address: [email protected] (C. Teare). 0029-6465/02/$ - see front matter 2002, Elsevier Science (USA). All rights reserved. PII: S 0 0 2 9 - 6 4 6 5 ( 0 2 ) 0 0 0 1 5 - 4
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fathers [1]. Still, research on age differences between teenage mothers and the fathers of their children [2,3] was widely used in support of increased statutory rape enforcement. Though the proportion of pregnancies resulting from relationships between minors and adults may be small [4], these age differences do affect both pregnancy rates and pregnancy outcomes. Minors who have much older partners are at very high risk for pregnancy. They are less likely than others their age to say that the pregnancy was unintended, more likely to report planned repeated pregnancies, and much less likely to have abortions [1,5]. A recent study found that adolescents whose partners were more than 2 years older were less likely to report condom use [6]. They are less likely to be enrolled in school or employed [5], and more likely to have experienced sexual abuse in the past. An Alan Guttmacher Institute study found that the only demographic variable significantly related to the odds of a 15–17-yearold girl having a sexual partner 3–5 years older was having ever been forced to have intercourse [1]. What is statutory rape? ‘‘Statutory rape’’ has no precise legal meaning, and the term does not even appear in most state criminal codes. (Terms used more frequently in state statutes include ‘‘rape,’’ ‘‘unlawful sexual intercourse,’’ and ‘‘sexual assault’’) [7]. For the purposes of this article, the authors use ‘‘statutory rape’’ in its traditional definition: consensual sexual intercourse between an older person and a younger person that is illegal because of the age discrepancy between the two parties. (At the same time, the authors recognize that some state statutes do not require that the ‘‘offender’’ be older, and that some state laws include nonconsensual as well as consensual sexual intercourse or other activity in their laws.) Some aspects of this definition require further explanation. ‘‘Consensual’’ activity and the age of consent The term consensual itself is ambiguous in this context because it has both legal and colloquial meanings. Depending on state law, a minor who is voluntarily engaging in sex may have no legal capacity to consent to that act, simply because she is younger than what is commonly referred to as the ‘‘age of consent.’’ In the United States, the age of consent inched upward over the course of the nineteenth and twentieth centuries and, in most states, is now defined as 16, 17, or 18 years old, although a few states end the protection as early as 13, 14, or 15 years [8]. On the other hand, a minor who has technically given consent to sex under the law may have participated in a less than fully voluntary way. Here, the authors define consensual with respect to the behavior: sexual intercourse is consensual if no duress, force, threats, or weapons are employed; if the minor is not unconscious or under
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the influence of alcohol or other drugs; and if no other people are involved with the sexual act in any way. Gender-neutrality Traditionally, statutory rape laws concerned themselves with protecting girls, and not boys, but over the last 20 years, most U.S. jurisdictions have repealed gender-based statutory rape laws, and by 1994 all but 15 jurisdictions had made the crime of statutory rape entirely gender-neutral [9]. Both federal and state courts, however, have typically upheld gender-specific statutes [9,10]. Prosecution of statutory rape is more common where the victim is female, although there are certainly some high-profile exceptions. Because so many cases come to light—and because prosecution may be more likely—when a teenager becomes pregnant, and because of our concern with access to reproductive and prenatal care, in this article the authors assume that the ‘‘victims’’ are girls. However, we recognize that young men also can be deterred from seeking health care, with serious results. Laws that address statutory rape Over the past decade, federal and state law and policy have included important developments related to statutory rape reporting and enforcement. The federal approaches are legally more limited in scope and less direct than the state approaches, but their significance exceeds their technical reach. The state approaches are extremely varied, and thus difficult to identify and catalog. Importantly, some of the most significant activity related to access to care is not embodied in statute or regulation but rather in interpretations of existing laws that have not found their way into legally binding provisions. The following sections sketch the shape of both federal and state approaches. Federal approaches The 1996 federal welfare law, the Personal Responsibility and Work Opportunity Act of 1996 (PRWORA) [11], in an attempt to reduce teen pregnancy by reducing statutory rape, included two different provisions. First, PRWORA included a ‘‘sense of the Senate’’ provision that ‘‘States and local jurisdictions should aggressively enforce statutory rape laws.’’ This provision required the establishment of a program to study the correlation between adult/teen sex and teenage pregnancy, focusing on ‘‘predatory older men committing repeat offenses,’’ and to educate law enforcement officials on the prevention and prosecution of statutory rape [12]. Second, PRWORA also required each state to describe, in its welfare (TANF) plan submitted to the federal government, how it would conduct an education and training program on the subject of statutory rape, with the objective of enhancing ‘‘teenage pregnancy prevention programs’’ [13].
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Also in 1996, Congress enacted amendments to the federal Child Abuse Prevention and Treatment Act (CAPTA) [14] relevant to statutory rape. CAPTA requires each state to submit a plan assuring that state law or a statewide program provides for reporting of child abuse and neglect, including ‘‘sexual abuse’’ [15]. The 1996 CAPTA amendments changed the definition of sexual abuse to include some forms of statutory rape, specifically those involving caretakers or family members [16]. This provision does seem to make clear that the federal government, at least, does not consider all forms of statutory rape to constitute child abuse for purposes of child abuse reporting laws, which is important in the context of the varying approaches states have taken with respect to statutory rape and child abuse reporting. Finally, as a result of a rider added in the 1998 appropriations process [17], all entities receiving federal Title X family planning funds [18] must counsel minors on resisting coercive sexual activity [19]. Though not directly addressing statutory rape per se, this requirement is designed to address the root cause of a problem that is fundamental to the concept of statutory rape enforcement and child abuse reporting by protecting young adolescents from sexual coercion and exploitation. State approaches Partially in response to the new federal legislative provisions, and partially in response to the epidemiologic data cited above, some states have acted to change the way that statutory rape is treated in statute and in policy. In 1995 and 1996 alone, for example, states took a variety of actions, including raising the age of the minor who is subject to protection by the law, imposing age gaps, treating impregnation of a minor as a separate offense, targeting much older defendants, authorizing civil penalties, and encouraging reporting under child abuse reporting laws [7]. These amendments and others like them have continued since then. In addition, even in the absence of changes to the law, some states and local communities have dusted off their existing statutory rape laws and begun enforcing them with more vigor. No two states have identical requirements for enforcement and reporting of statutory rape, and a comprehensive survey of state law is beyond the scope of this article. With respect to reporting, however, certain general principles hold true across state lines. In all states, the law mandates child abuse reporting. Certain individuals—including health care providers—must report to a child welfare agency (often known as Child Protective Services) or to law enforcement any instances in which they reasonably suspect that a minor has been abused. In all states, sexual abuse (sometimes under another name) is included as a form of child abuse [20]. Beyond that, however, state laws are hardly uniform, and the analysis of whether or when a child abuse report is required in a case of statutory rape is often very difficult. Nevertheless, certain key issues are important in analyzing any state’s law.
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The exact definition of sexual abuse differs from state to state, and statutory rape is not always included in it [20]. Many states’ reporting laws simply point to provisions in their criminal code defining illegal sexual activity with children, and specify whether, and under what circumstances, actions committed in violation of those statutes are reportable. Some states only require reports in cases of abuse or neglect by a parent, family member, or caretaker; others include abuse by nonfamily members, and still others include statutory rape but grant the health care provider some measure of discretion. Examination of the approaches taken by specific states reveals stark contrasts. California, for example, has enacted a statutory rape vertical prosecution program designed to deter adult men from engaging in sex with girls who are minors [21] and altered its child-abuse reporting law to encompass statutory rape and to require reports of statutory rape when certain age differences exist between partners [22]. Wisconsin, on the other hand, has a child-abuse reporting statute that makes statutory rape broadly reportable but that also contains an exemption from such reporting for health care providers, including nurses, who provide confidential health care services such as family planning, pregnancy testing, obstetrical care, and diagnosis or treatment of STDs [23]. Thus, statutory rape, however it is termed and defined by law in a particular state, often triggers a mandate for health care providers to make a child abuse report but does not do so universally. In its 1997 report, the American Bar Association estimated that ‘‘about half of the states’ mandatory reporting laws include statutory rape as a reportable offense’’ but emphasized that statutory analysis of this issue is very difficult [8]. Effects of statutory rape reporting and enforcement What are the effects, for adolescents, of reporting statutory rape as child abuse? Among the benefits cited by supporters of increased prosecution is pregnancy prevention, as well as more general protection from the negative emotional effects of relationships with older men. But do the policies really prevent pregnancies? The possible harms to adolescents include criminalization—arrest, prosecution, trial, or incarceration—for sexual activity that is truly consensual for both parties, and entanglement in the child welfare system. How frequent are these problems, and are they outweighed by the protection offered to young girls? Most important for this analysis, how does statutory rape reporting affect adolescent access to health care? Pregnancy prevention Though most of the recent modifications of state statutory rape laws cite as their prime motivation the prevention of teenage pregnancy, in fact, the asserted link between increased statutory rape enforcement and decreasing
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teen pregnancies has not been proven. One welcome source of confusion in attempting to demonstrate the connection is that teen pregnancies decreased fairly rapidly throughout the 1990s across the country—in states that aggressively required reporting of statutory rape cases and enforced statutory rape laws, and in states that did not. As always, the reasons are complex. One study, looking at the decrease in teen pregnancies nationwide, suggests that 25% of the decline is caused by increased abstinence among teenagers, whereas 75% is caused by changes in behavior of sexually experienced teenagers [24]. Statutory rape policies could conceivably work through both those mechanisms, but given the multitude of factors influencing sexual behavior, the deterrent effect on teen pregnancy that statutory rape policies could claim for themselves would be, from a population perspective, extremely small. Criminalization Just as it is impossible to make blanket statements about state reporting statutes, it is impossible to generalize the law enforcement response to a statutory rape report, which varies from state to state and county to county. Perhaps the only constant is the disruption that a report entails for the young woman involved, who is likely to feel ‘‘victimized all over again’’ [25]. In some cases, the girl may rightly feel that she is being used as a pawn. A recent American Bar Association (ABA) report on ‘‘best practices’’ in statutory rape enforcement described prosecutors’ use of statutory rape charges to arrest suspected gang members when evidence of other crimes is insufficient [26]. Where the sexual activity in question involves force, abuse, or exploitation, there may well be sufficient reason to go forward with prosecution. In cases that involve sex that is voluntary for both partners, however, particularly if there is no great difference in age, the benefits of prosecution may be harder to identify. In addition to the burdens associated with the prosecution process itself, the costs for a victim who is a teen mother may include loss of income or support if her boyfriend or partner, the father of her child, is jailed. If the boyfriend is an undocumented immigrant, conviction for statutory rape may lead to his deportation and thus to the separation of a young family. Involvement in the child welfare system Even when the consequences of reporting do not include prosecution, incarceration, or deportation, they may include entanglement in the child welfare system. There is no guarantee that an adolescent girl who has been involved in voluntary sexual activity with her boyfriend will benefit from her involvement with the child welfare system [27]. The child welfare system as a whole is famously overburdened, and this is true for the ‘‘front-end’’ functions of report investigations as well. Even in cases that involve serious
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physical or sexual abuse, the adolescent age group is the one that the child welfare system has had the poorest record of helping. In some jurisdictions, child welfare workers state up front that allegations involving adolescents are only pursued in cases of intrafamily abuse. As indicated by the definition of sexual abuse in CAPTA, discussed above, intrafamily abuse is the category that the federal government considers the most important, even though some states’ reporting laws currently have a broader reach. This creates a potential disconnect between the reporting requirements and the child welfare response. Not only are these cases typically assigned a low priority, if they are investigated and adolescents are removed from their homes, the victims typically experience numerous foster homes or placement in an institutional or group care setting. More often, no action is ultimately taken by a child welfare agency, but the repercussions of the initial report may persist for a girl and her family. Access to health care The ABA wrote that the ‘‘issue of mandated reporting…to child protective services raises serious, previously not addressed, public policy problems and needs further, careful study. Awareness by girls that their relationships may be ÔreportedÕ to authorities may deter girls from seeking medical or social services attention related to contraception, sexually transmitted diseases (STDs), prenatal care, or domestic violence’’ [8]. Similarly, Michelle Oberman, an academic expert on statutory rape, has raised concerns that the ‘‘threat of criminal sanctions might…[discourage] minors from seeking reproductive health care and counseling. They may fear that their health care providers will report them to the police, and in fact, they may be right’’ [9]. Girls’ fears may be less for themselves than for their partners, who, as mentioned above, may face criminal sanctions or deportation if they are convicted of statutory rape offenses. In more than a few cases, they may not only fear for their partners, but also fear their partners’ reactions, avoiding health care because of the threat of repercussions from these men. Former Surgeon General Joycelyn Elders, commenting on the implications of aggressive prosecution, points out that ‘‘teenage girls may put themselves at risk of physical abuse in reprisal for identifying these men’’ [28]. Research data have documented that significant numbers of adolescent girls have been physically or sexually abused, including by dates or boyfriends [29,30], and that pregnancy is often a trigger for abuse by a boyfriend [31]. A boyfriend’s anger over intervention by the authorities might intensify the likelihood of an abusive response in a situation that already presents high risk of violence. Regardless of the reason, adolescents’ delay in seeking, or complete avoidance of, health care services can have very serious consequences. This may be particularly true where the health care in question is related to pregnancy, sexually transmitted disease, or mental health concerns. Though it is difficult to gauge the extent to which adolescents avoid health care for fear of
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statutory rape interventions, studies have repeatedly documented that some adolescents are unwilling to seek care unless they can do so confidentially [32,33].
Issues for nursing practice Nurses and other health care providers who are confronted with a legal obligation to report the sexual activity of their minor adolescent patients to child welfare or law enforcement agencies as child abuse are confronted with a difficult dilemma. Even if the law makes clear that the child abuse reporting requirement trumps the confidentiality obligation, an ethical quandary remains. By violating the trust of the adolescent patient and making the child abuse report, will the health care provider discourage this patient or others from seeking health care in the future, or from providing candid answers in a health history interview? Not surprisingly, diverse views about statutory rape exist among health care providers. Many providers have expressed concerns that statutory rape reporting will undermine the consent and confidentiality schemes under which they have operated for years. The head of the Texas Family Planning Association, for example, criticized a proposed rider to the 2000–2001 Department of Health budget that would have allowed funding only to those clinics that show good faith efforts to comply with the state’s reporting law: ‘‘It’s not going to take long for it to get out that we’re reporting all the boyfriends to law enforcement. So what’s going to happen is that sexually active teenagers are not going to go to clinics’’ [34]. Still, many health care providers support increased enforcement of statutory rape laws. A 1999 study surveyed family-planning program managers in Kansas and found that 79% supported aggressive enforcement of statutory rape laws, and 43% thought that this would reduce pregnancy rates. With increased enforcement, 38% thought teenagers would be discouraged from seeking reproductive health care, whereas 41% thought they would not [35]. In this study, willingness to report cases was mixed, with all respondents who said they would report also wanting the flexibility to judge on a caseby-case basis. For those not reporting, confidentiality concerns overrode beliefs in any positive outcome, and this in a sample in which nearly four in five supported aggressive enforcement [35]. Providers operating in jurisdictions where statutory rape is a reportable offense face difficult decisions, and many describe feeling torn between their legal responsibilities and their fear of scaring their patients away. Some avoid questions that might make them aware of a reportable offense but risk missing important information about their patients’ lives. Others seek the information and deal with the reporting as it comes up. Others ask the questions but fail to make the required reports. (Of course, some providers do not ask many questions of their adolescent patients anyway, and not because
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they worry about the consequences of reporting. In a study of California physicians treating adolescents, fewer than half always asked their patients about sexual activity [36].) Some evidence suggests that knowing failure to report may be fairly widespread. The ABA study found that, among providers of health and social services to teenagers, more than half said that they do not report relationships between teenage girls and adult men to law enforcement or child protective agencies [8]. The providers’ locations were not included, however, and presumably not all such reports were mandated. In a mandatory reporting context, a California study found that more than half of primary care and emergency physicians required to report suspected cases of intimate partner violence, with identifying information, regardless of the patient’s wishes, said that they ‘‘might not comply’’ with the reporting law if a patient objected [37]. Though a large majority of the physicians agreed that the reporting law had potential benefits, similar percentages felt that it required ethical violations, created barriers to care, and could escalate violence or abuse [37]. Similar rationales might well apply to the reporting of statutory rape, although, on the other hand, providers might be more likely to report where the victim is a child and not an adult. Practice and policy recommendations Understand your state laws As described above, state laws regarding the reporting of statutory rape offenses vary widely and are not always easy to decipher. Nurses working with adolescents should be sure that they and their colleagues are clear about their reporting responsibilities. Possible sources of assistance include state nurses’ associations, state medical associations, state or local child protective services agencies, hospital or other organizational legal counsel, child abuse or rape crisis organizations, and/or state or local law enforcement. In some cases, particularly in communities where statutory rape enforcement has become extremely politicized and where there is no clear statutory mandate, prosecutors have interpreted the law to require reporting and have instructed health care providers that they are obligated to make such reports. Nurses also should inquire about their states’ statutory rape education and training programs mandated by PRWORA (see above). As of 1997, most states gave only vague information about these programs in their state plans, and advocates suggested that the federal agency should request more specific information from the states, including data on how the state’s statutory rape program addresses the potential interface with paternity establishment and child support enforcement, and how it trains statutory rape educators [38]. Where this has happened, nurses should be aware of it; where it has not, they should be involved in planning these programs.
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Work with child protective services and prosecutors In jurisdictions in which the laws require reporting of some cases of consensual sex involving minors, it can be helpful to contact child protective services investigators and local prosecutors directly, both to understand their policies and procedures (what happens to a statutory-rape child abuse report, how the district attorney decides which cases to prosecute) and to educate them about the confidentiality concerns and clinical needs of adolescent patients. Such a conversation allows health care providers to give their patients more accurate information, and having a personal contact in the local bureaucracies may give providers some influence over the outcomes of their reports. For example, some nurses have reported that they call in statutory rape reports to a known individual at Child Protective Services (CPS) and can explain to that investigator why they do not believe that the case is really abusive, or suggest that the adolescent be interviewed at school and not at home for privacy reasons. Talk to patients and develop consistent policies To the extent that adolescent patients believe that they stand to become involved with CPS or the law if they disclose a sexual relationship with an older man, we believe that some of them will forgo needed health care. Nurses can and should be honest with their patients about the limits of confidentiality and should endeavor to ensure that their colleagues also are accurate and clear in the information they offer to patients. Site-wide training and coordinated policy development will help ensure that the messages that adolescent patients receive are consistent across all providers.
Summary Changes over the past decade in statutory rape laws and their enforcement have created anxiety and confusion for nurses and other health care providers in jurisdictions across the country. Mandated reporting of statutory rape as child abuse potentially has the unsought effect of deterring some of the adolescents most in need of confidential health care from seeking that care. Knowledge and advocacy on the part of nurses can help mitigate the harms of overly inclusive reporting and enforcement.
References [1] Darroch JE, Landry DJ, Oslak S. Age differences between sexual partners in the United States. Fam Plann Perspect 1999;31(4):160–7. [2] Males M. Adult liaison in the ‘‘epidemic’’ of ‘‘teenage’’ birth, pregnancy, and venereal disease. J Sex Res 1992;29(4):525–45.
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[3] Males M, Chew KSY. The ages of fathers in California adolescent births, 1993. AJPH 1996;86(4):565–8. [4] Lindberg LD, Sonenstein FL, Ku L, et al. Age differences between minors who give birth and their adult partners. Fam Plann Perspect 1997;29(2):61–6. [5] Agurcia CA, Rickert VI, Bernenson AB, et al. The behavioral risks and life circumstances of adolescent mothers involved with older adult partners. Arch Pediatr Adolesc Med 2001;155(7):822–30. [6] Ford K, Sohn W, Lepkowski J. Characteristics of adolescents’ sexual partners and their association with use of condoms and other contraceptive methods. Family Planning Perspectives 2001;33(3):100–5, 132. [7] Davis N, Twombly J. State legislators’ handbook for statutory rape issues. Washington, DC: American Bar Association Center on Children and the Law;2000. [8] Elstein SG, Davis N. Sexual relationships between adult males and young teen girls: exploring the legal and social responses. Washington, DC: American Bar Association Center on Children and the Law;1997. [9] Oberman M: Turning girls into women: re-evaluating modern statutory rape law. J Crim L & Criminology 1994;85:15–79. [10] Michael M. v. Sonoma Superior Court, 450 US 464;1981. [11] Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub.L. No. 104–193, 110 Stat. 2105;1996. [12] 42 USC § 14016. [13] 110 Stat 2104. [14] 42 USC §§ 5101–5107. [15] 42 USC § 5106. [16] 42 USC § 5106g(4)(b). [17] An Act Making Appropriations for the Departments of Labor, Health and Human Services, and Education and Related Agencies for the Fiscal Year Ending September 30, 1998 and for Other Purposes, Pub. L. No. 105–78, 111 Stat. 1467 (1997). [18] Family Planning and Population Services, 42 USC §§ 300–300a-8. [19] Office of Population Affairs. US Dep’t Health & Hum Serv., OPA Program Instruction Series, OPA 98–1: Certifications for encouraging family participation and counseling to minors on how to resist coercive attempts to engage in sexual activities (Feb. 24, 1998). Available at: http://www.hhs.gov/opa/titleex/pis/opa98-1txt. Accessed February 11, 2002. [20] Admin. Children & Families, US Dep’t of Health & Hum. Serv., National Clearinghouse on Child Abuse and Neglect Information: Child Abuse & Neglect State Statutes Elements (current through Dec. 31, 1999). Available at: http://www.calib.com/nccanch/services/ statutes.htm#Laws. Accessed January 15, 2002. [21] Statutory Rape Vertical Prosecution Program. Available at: http://www.ocjp.ca.gov/ programs/pro_cb_srvp.htm. Accessed January 20, 2002. [22] Cal. Penal Code §§ 11165.1, 11165.6 (West 1999;Supp. 2000). [23] Wis. Stat. §§ 48.981(2) and 48.981(2m) (1998 and Supp. 2000). [24] Darroch JE, Singh S. Why is teenage pregnancy declining? The roles of abstinence, sexual activity, and contraceptive use. New York: Alan Guttmacher Institute;1999. Occasional report #1. [25] Donovan P. Caught between teens and the law: family planning programs and statutory rape reporting. The Guttmacher Report on Public Policy 1998;1(3):5–7. [26] Inada S. Improving the criminal justice response to statutory rape. Child Law Practice 1998;17(10):157–9. [27] English A, Teare C. Statutory rape enforcement and child abuse reporting: effects on health care access for adolescents. DePaul Law Review 2001;50(3):827–64. [28] Elders MJ, Albert AE. Adolescent pregnancy and sexual abuse. JAMA 1998;280(7):648–9. [29] Levesque RJR. Dating violence, adolescents, and the law. Va J Soc Pol’y & Law 1997; 4:339–79.
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[30] Schoen C, Davis K, Collins KS, et al. The Commonwealth Fund Survey of the health of adolescent girls. New York: Commonwealth Fund;1997. [31] Berenson AB, San Miguel VV, Wilkinson GS. Prevalence of physical and sexual assault in pregnant adolescents. J Adolesc Health 1992;13(6):466–9. [32] Cheng TL, Savageau JA, Sattler AL, et al: Confidentiality in health care: a survey of knowledge, perceptions, and attitudes among high school students. JAMA 1993;269(11): 1404–7. [33] Ford CA, Millstein SG, Halpern-Felsher BL, et al. Influence of physician confidentiality assurances on adolescents’ willingness to disclose information and seek future health care. JAMA 1997;278(12):1029–34. [34] Greenberger S. Health care groups worry law will harm sexually active teens. Austin American-Statesman, May 1, 2000. [35] Miller C, Miller HL, Kenney L, et al. Issues in balancing teenage clients’ confidentiality and reporting statutory rape among Kansas Title X clinic staff. Public Health Nurs 1999; 16(5):329–36. [36] Millstein SG, Igra V, Gans J. Delivery of STD/HIV preventive services to adolescents by primary care physicians. J Adolesc Health 1996;19(4):249–57. [37] Rodriguez MA, McLoughlin E, Bauer HM, et al. Mandatory reporting of intimate partner violence to police: views of physicians in California. AJPH 1999;89(4):575–8. [38] Levin-Epstein J. State TANF plans: out-of-wedlock and statutory rape provisions. Washington, DC: Center for Law and Social Policy;1997.
Nursing practice and statutory rape Effects of reporting and enforcement on access to care for adolescents Catherine Teare, MPPa,*, Abigail English, JDb a
6060 Harwood Ave., Oakland, CA 94618, USA Center for Adolescent Health & the Law, 211 No. Columbia Street, Chapel Hill, NC 27514, USA
b
Statutory rape laws, typically enforced only rarely over the past few decades and considered quaint by many, have come back into fashion. States from Florida to California, Wisconsin, and Massachusetts have revised their statutory rape laws or urged greater enforcement of existing laws in an effort to combat teen pregnancy, address male responsibility, and end welfare dependence. Nurses and other health care providers have been at the center of this whirlwind, particularly in those jurisdictions where statutory rape mandates a child abuse report. This article addresses the effects of increased statutory rape reporting and enforcement on adolescents’ access to health care, and on nursing practice. We briefly review the epidemiology of statutory rape, provide an overview of federal and state laws, examine the effects of increased reporting and enforcement on adolescent patients and on nurses, and conclude with policy and practice recommendations. Epidemiology Several studies have linked a majority of teen births (among other bad outcomes) to girls having sexual partners who are adults. That many girls have older boyfriends—and that many girls who are minors (ie, under the age of 18 in almost every state) have boyfriends who are adults—comes as little surprise. In the United States, mothers are typically younger than This work was supported in part by a grant from the Ford Foundation. The views expressed are those of the authors alone. * Corresponding author. E-mail address: [email protected] (C. Teare). 0029-6465/02/$ - see front matter 2002, Elsevier Science (USA). All rights reserved. PII: S 0 0 2 9 - 6 4 6 5 ( 0 2 ) 0 0 0 1 5 - 4
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fathers [1]. Still, research on age differences between teenage mothers and the fathers of their children [2,3] was widely used in support of increased statutory rape enforcement. Though the proportion of pregnancies resulting from relationships between minors and adults may be small [4], these age differences do affect both pregnancy rates and pregnancy outcomes. Minors who have much older partners are at very high risk for pregnancy. They are less likely than others their age to say that the pregnancy was unintended, more likely to report planned repeated pregnancies, and much less likely to have abortions [1,5]. A recent study found that adolescents whose partners were more than 2 years older were less likely to report condom use [6]. They are less likely to be enrolled in school or employed [5], and more likely to have experienced sexual abuse in the past. An Alan Guttmacher Institute study found that the only demographic variable significantly related to the odds of a 15–17-yearold girl having a sexual partner 3–5 years older was having ever been forced to have intercourse [1]. What is statutory rape? ‘‘Statutory rape’’ has no precise legal meaning, and the term does not even appear in most state criminal codes. (Terms used more frequently in state statutes include ‘‘rape,’’ ‘‘unlawful sexual intercourse,’’ and ‘‘sexual assault’’) [7]. For the purposes of this article, the authors use ‘‘statutory rape’’ in its traditional definition: consensual sexual intercourse between an older person and a younger person that is illegal because of the age discrepancy between the two parties. (At the same time, the authors recognize that some state statutes do not require that the ‘‘offender’’ be older, and that some state laws include nonconsensual as well as consensual sexual intercourse or other activity in their laws.) Some aspects of this definition require further explanation. ‘‘Consensual’’ activity and the age of consent The term consensual itself is ambiguous in this context because it has both legal and colloquial meanings. Depending on state law, a minor who is voluntarily engaging in sex may have no legal capacity to consent to that act, simply because she is younger than what is commonly referred to as the ‘‘age of consent.’’ In the United States, the age of consent inched upward over the course of the nineteenth and twentieth centuries and, in most states, is now defined as 16, 17, or 18 years old, although a few states end the protection as early as 13, 14, or 15 years [8]. On the other hand, a minor who has technically given consent to sex under the law may have participated in a less than fully voluntary way. Here, the authors define consensual with respect to the behavior: sexual intercourse is consensual if no duress, force, threats, or weapons are employed; if the minor is not unconscious or under
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the influence of alcohol or other drugs; and if no other people are involved with the sexual act in any way. Gender-neutrality Traditionally, statutory rape laws concerned themselves with protecting girls, and not boys, but over the last 20 years, most U.S. jurisdictions have repealed gender-based statutory rape laws, and by 1994 all but 15 jurisdictions had made the crime of statutory rape entirely gender-neutral [9]. Both federal and state courts, however, have typically upheld gender-specific statutes [9,10]. Prosecution of statutory rape is more common where the victim is female, although there are certainly some high-profile exceptions. Because so many cases come to light—and because prosecution may be more likely—when a teenager becomes pregnant, and because of our concern with access to reproductive and prenatal care, in this article the authors assume that the ‘‘victims’’ are girls. However, we recognize that young men also can be deterred from seeking health care, with serious results. Laws that address statutory rape Over the past decade, federal and state law and policy have included important developments related to statutory rape reporting and enforcement. The federal approaches are legally more limited in scope and less direct than the state approaches, but their significance exceeds their technical reach. The state approaches are extremely varied, and thus difficult to identify and catalog. Importantly, some of the most significant activity related to access to care is not embodied in statute or regulation but rather in interpretations of existing laws that have not found their way into legally binding provisions. The following sections sketch the shape of both federal and state approaches. Federal approaches The 1996 federal welfare law, the Personal Responsibility and Work Opportunity Act of 1996 (PRWORA) [11], in an attempt to reduce teen pregnancy by reducing statutory rape, included two different provisions. First, PRWORA included a ‘‘sense of the Senate’’ provision that ‘‘States and local jurisdictions should aggressively enforce statutory rape laws.’’ This provision required the establishment of a program to study the correlation between adult/teen sex and teenage pregnancy, focusing on ‘‘predatory older men committing repeat offenses,’’ and to educate law enforcement officials on the prevention and prosecution of statutory rape [12]. Second, PRWORA also required each state to describe, in its welfare (TANF) plan submitted to the federal government, how it would conduct an education and training program on the subject of statutory rape, with the objective of enhancing ‘‘teenage pregnancy prevention programs’’ [13].
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Also in 1996, Congress enacted amendments to the federal Child Abuse Prevention and Treatment Act (CAPTA) [14] relevant to statutory rape. CAPTA requires each state to submit a plan assuring that state law or a statewide program provides for reporting of child abuse and neglect, including ‘‘sexual abuse’’ [15]. The 1996 CAPTA amendments changed the definition of sexual abuse to include some forms of statutory rape, specifically those involving caretakers or family members [16]. This provision does seem to make clear that the federal government, at least, does not consider all forms of statutory rape to constitute child abuse for purposes of child abuse reporting laws, which is important in the context of the varying approaches states have taken with respect to statutory rape and child abuse reporting. Finally, as a result of a rider added in the 1998 appropriations process [17], all entities receiving federal Title X family planning funds [18] must counsel minors on resisting coercive sexual activity [19]. Though not directly addressing statutory rape per se, this requirement is designed to address the root cause of a problem that is fundamental to the concept of statutory rape enforcement and child abuse reporting by protecting young adolescents from sexual coercion and exploitation. State approaches Partially in response to the new federal legislative provisions, and partially in response to the epidemiologic data cited above, some states have acted to change the way that statutory rape is treated in statute and in policy. In 1995 and 1996 alone, for example, states took a variety of actions, including raising the age of the minor who is subject to protection by the law, imposing age gaps, treating impregnation of a minor as a separate offense, targeting much older defendants, authorizing civil penalties, and encouraging reporting under child abuse reporting laws [7]. These amendments and others like them have continued since then. In addition, even in the absence of changes to the law, some states and local communities have dusted off their existing statutory rape laws and begun enforcing them with more vigor. No two states have identical requirements for enforcement and reporting of statutory rape, and a comprehensive survey of state law is beyond the scope of this article. With respect to reporting, however, certain general principles hold true across state lines. In all states, the law mandates child abuse reporting. Certain individuals—including health care providers—must report to a child welfare agency (often known as Child Protective Services) or to law enforcement any instances in which they reasonably suspect that a minor has been abused. In all states, sexual abuse (sometimes under another name) is included as a form of child abuse [20]. Beyond that, however, state laws are hardly uniform, and the analysis of whether or when a child abuse report is required in a case of statutory rape is often very difficult. Nevertheless, certain key issues are important in analyzing any state’s law.
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The exact definition of sexual abuse differs from state to state, and statutory rape is not always included in it [20]. Many states’ reporting laws simply point to provisions in their criminal code defining illegal sexual activity with children, and specify whether, and under what circumstances, actions committed in violation of those statutes are reportable. Some states only require reports in cases of abuse or neglect by a parent, family member, or caretaker; others include abuse by nonfamily members, and still others include statutory rape but grant the health care provider some measure of discretion. Examination of the approaches taken by specific states reveals stark contrasts. California, for example, has enacted a statutory rape vertical prosecution program designed to deter adult men from engaging in sex with girls who are minors [21] and altered its child-abuse reporting law to encompass statutory rape and to require reports of statutory rape when certain age differences exist between partners [22]. Wisconsin, on the other hand, has a child-abuse reporting statute that makes statutory rape broadly reportable but that also contains an exemption from such reporting for health care providers, including nurses, who provide confidential health care services such as family planning, pregnancy testing, obstetrical care, and diagnosis or treatment of STDs [23]. Thus, statutory rape, however it is termed and defined by law in a particular state, often triggers a mandate for health care providers to make a child abuse report but does not do so universally. In its 1997 report, the American Bar Association estimated that ‘‘about half of the states’ mandatory reporting laws include statutory rape as a reportable offense’’ but emphasized that statutory analysis of this issue is very difficult [8]. Effects of statutory rape reporting and enforcement What are the effects, for adolescents, of reporting statutory rape as child abuse? Among the benefits cited by supporters of increased prosecution is pregnancy prevention, as well as more general protection from the negative emotional effects of relationships with older men. But do the policies really prevent pregnancies? The possible harms to adolescents include criminalization—arrest, prosecution, trial, or incarceration—for sexual activity that is truly consensual for both parties, and entanglement in the child welfare system. How frequent are these problems, and are they outweighed by the protection offered to young girls? Most important for this analysis, how does statutory rape reporting affect adolescent access to health care? Pregnancy prevention Though most of the recent modifications of state statutory rape laws cite as their prime motivation the prevention of teenage pregnancy, in fact, the asserted link between increased statutory rape enforcement and decreasing
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teen pregnancies has not been proven. One welcome source of confusion in attempting to demonstrate the connection is that teen pregnancies decreased fairly rapidly throughout the 1990s across the country—in states that aggressively required reporting of statutory rape cases and enforced statutory rape laws, and in states that did not. As always, the reasons are complex. One study, looking at the decrease in teen pregnancies nationwide, suggests that 25% of the decline is caused by increased abstinence among teenagers, whereas 75% is caused by changes in behavior of sexually experienced teenagers [24]. Statutory rape policies could conceivably work through both those mechanisms, but given the multitude of factors influencing sexual behavior, the deterrent effect on teen pregnancy that statutory rape policies could claim for themselves would be, from a population perspective, extremely small. Criminalization Just as it is impossible to make blanket statements about state reporting statutes, it is impossible to generalize the law enforcement response to a statutory rape report, which varies from state to state and county to county. Perhaps the only constant is the disruption that a report entails for the young woman involved, who is likely to feel ‘‘victimized all over again’’ [25]. In some cases, the girl may rightly feel that she is being used as a pawn. A recent American Bar Association (ABA) report on ‘‘best practices’’ in statutory rape enforcement described prosecutors’ use of statutory rape charges to arrest suspected gang members when evidence of other crimes is insufficient [26]. Where the sexual activity in question involves force, abuse, or exploitation, there may well be sufficient reason to go forward with prosecution. In cases that involve sex that is voluntary for both partners, however, particularly if there is no great difference in age, the benefits of prosecution may be harder to identify. In addition to the burdens associated with the prosecution process itself, the costs for a victim who is a teen mother may include loss of income or support if her boyfriend or partner, the father of her child, is jailed. If the boyfriend is an undocumented immigrant, conviction for statutory rape may lead to his deportation and thus to the separation of a young family. Involvement in the child welfare system Even when the consequences of reporting do not include prosecution, incarceration, or deportation, they may include entanglement in the child welfare system. There is no guarantee that an adolescent girl who has been involved in voluntary sexual activity with her boyfriend will benefit from her involvement with the child welfare system [27]. The child welfare system as a whole is famously overburdened, and this is true for the ‘‘front-end’’ functions of report investigations as well. Even in cases that involve serious
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physical or sexual abuse, the adolescent age group is the one that the child welfare system has had the poorest record of helping. In some jurisdictions, child welfare workers state up front that allegations involving adolescents are only pursued in cases of intrafamily abuse. As indicated by the definition of sexual abuse in CAPTA, discussed above, intrafamily abuse is the category that the federal government considers the most important, even though some states’ reporting laws currently have a broader reach. This creates a potential disconnect between the reporting requirements and the child welfare response. Not only are these cases typically assigned a low priority, if they are investigated and adolescents are removed from their homes, the victims typically experience numerous foster homes or placement in an institutional or group care setting. More often, no action is ultimately taken by a child welfare agency, but the repercussions of the initial report may persist for a girl and her family. Access to health care The ABA wrote that the ‘‘issue of mandated reporting…to child protective services raises serious, previously not addressed, public policy problems and needs further, careful study. Awareness by girls that their relationships may be ÔreportedÕ to authorities may deter girls from seeking medical or social services attention related to contraception, sexually transmitted diseases (STDs), prenatal care, or domestic violence’’ [8]. Similarly, Michelle Oberman, an academic expert on statutory rape, has raised concerns that the ‘‘threat of criminal sanctions might…[discourage] minors from seeking reproductive health care and counseling. They may fear that their health care providers will report them to the police, and in fact, they may be right’’ [9]. Girls’ fears may be less for themselves than for their partners, who, as mentioned above, may face criminal sanctions or deportation if they are convicted of statutory rape offenses. In more than a few cases, they may not only fear for their partners, but also fear their partners’ reactions, avoiding health care because of the threat of repercussions from these men. Former Surgeon General Joycelyn Elders, commenting on the implications of aggressive prosecution, points out that ‘‘teenage girls may put themselves at risk of physical abuse in reprisal for identifying these men’’ [28]. Research data have documented that significant numbers of adolescent girls have been physically or sexually abused, including by dates or boyfriends [29,30], and that pregnancy is often a trigger for abuse by a boyfriend [31]. A boyfriend’s anger over intervention by the authorities might intensify the likelihood of an abusive response in a situation that already presents high risk of violence. Regardless of the reason, adolescents’ delay in seeking, or complete avoidance of, health care services can have very serious consequences. This may be particularly true where the health care in question is related to pregnancy, sexually transmitted disease, or mental health concerns. Though it is difficult to gauge the extent to which adolescents avoid health care for fear of
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statutory rape interventions, studies have repeatedly documented that some adolescents are unwilling to seek care unless they can do so confidentially [32,33].
Issues for nursing practice Nurses and other health care providers who are confronted with a legal obligation to report the sexual activity of their minor adolescent patients to child welfare or law enforcement agencies as child abuse are confronted with a difficult dilemma. Even if the law makes clear that the child abuse reporting requirement trumps the confidentiality obligation, an ethical quandary remains. By violating the trust of the adolescent patient and making the child abuse report, will the health care provider discourage this patient or others from seeking health care in the future, or from providing candid answers in a health history interview? Not surprisingly, diverse views about statutory rape exist among health care providers. Many providers have expressed concerns that statutory rape reporting will undermine the consent and confidentiality schemes under which they have operated for years. The head of the Texas Family Planning Association, for example, criticized a proposed rider to the 2000–2001 Department of Health budget that would have allowed funding only to those clinics that show good faith efforts to comply with the state’s reporting law: ‘‘It’s not going to take long for it to get out that we’re reporting all the boyfriends to law enforcement. So what’s going to happen is that sexually active teenagers are not going to go to clinics’’ [34]. Still, many health care providers support increased enforcement of statutory rape laws. A 1999 study surveyed family-planning program managers in Kansas and found that 79% supported aggressive enforcement of statutory rape laws, and 43% thought that this would reduce pregnancy rates. With increased enforcement, 38% thought teenagers would be discouraged from seeking reproductive health care, whereas 41% thought they would not [35]. In this study, willingness to report cases was mixed, with all respondents who said they would report also wanting the flexibility to judge on a caseby-case basis. For those not reporting, confidentiality concerns overrode beliefs in any positive outcome, and this in a sample in which nearly four in five supported aggressive enforcement [35]. Providers operating in jurisdictions where statutory rape is a reportable offense face difficult decisions, and many describe feeling torn between their legal responsibilities and their fear of scaring their patients away. Some avoid questions that might make them aware of a reportable offense but risk missing important information about their patients’ lives. Others seek the information and deal with the reporting as it comes up. Others ask the questions but fail to make the required reports. (Of course, some providers do not ask many questions of their adolescent patients anyway, and not because
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they worry about the consequences of reporting. In a study of California physicians treating adolescents, fewer than half always asked their patients about sexual activity [36].) Some evidence suggests that knowing failure to report may be fairly widespread. The ABA study found that, among providers of health and social services to teenagers, more than half said that they do not report relationships between teenage girls and adult men to law enforcement or child protective agencies [8]. The providers’ locations were not included, however, and presumably not all such reports were mandated. In a mandatory reporting context, a California study found that more than half of primary care and emergency physicians required to report suspected cases of intimate partner violence, with identifying information, regardless of the patient’s wishes, said that they ‘‘might not comply’’ with the reporting law if a patient objected [37]. Though a large majority of the physicians agreed that the reporting law had potential benefits, similar percentages felt that it required ethical violations, created barriers to care, and could escalate violence or abuse [37]. Similar rationales might well apply to the reporting of statutory rape, although, on the other hand, providers might be more likely to report where the victim is a child and not an adult. Practice and policy recommendations Understand your state laws As described above, state laws regarding the reporting of statutory rape offenses vary widely and are not always easy to decipher. Nurses working with adolescents should be sure that they and their colleagues are clear about their reporting responsibilities. Possible sources of assistance include state nurses’ associations, state medical associations, state or local child protective services agencies, hospital or other organizational legal counsel, child abuse or rape crisis organizations, and/or state or local law enforcement. In some cases, particularly in communities where statutory rape enforcement has become extremely politicized and where there is no clear statutory mandate, prosecutors have interpreted the law to require reporting and have instructed health care providers that they are obligated to make such reports. Nurses also should inquire about their states’ statutory rape education and training programs mandated by PRWORA (see above). As of 1997, most states gave only vague information about these programs in their state plans, and advocates suggested that the federal agency should request more specific information from the states, including data on how the state’s statutory rape program addresses the potential interface with paternity establishment and child support enforcement, and how it trains statutory rape educators [38]. Where this has happened, nurses should be aware of it; where it has not, they should be involved in planning these programs.
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Work with child protective services and prosecutors In jurisdictions in which the laws require reporting of some cases of consensual sex involving minors, it can be helpful to contact child protective services investigators and local prosecutors directly, both to understand their policies and procedures (what happens to a statutory-rape child abuse report, how the district attorney decides which cases to prosecute) and to educate them about the confidentiality concerns and clinical needs of adolescent patients. Such a conversation allows health care providers to give their patients more accurate information, and having a personal contact in the local bureaucracies may give providers some influence over the outcomes of their reports. For example, some nurses have reported that they call in statutory rape reports to a known individual at Child Protective Services (CPS) and can explain to that investigator why they do not believe that the case is really abusive, or suggest that the adolescent be interviewed at school and not at home for privacy reasons. Talk to patients and develop consistent policies To the extent that adolescent patients believe that they stand to become involved with CPS or the law if they disclose a sexual relationship with an older man, we believe that some of them will forgo needed health care. Nurses can and should be honest with their patients about the limits of confidentiality and should endeavor to ensure that their colleagues also are accurate and clear in the information they offer to patients. Site-wide training and coordinated policy development will help ensure that the messages that adolescent patients receive are consistent across all providers.
Summary Changes over the past decade in statutory rape laws and their enforcement have created anxiety and confusion for nurses and other health care providers in jurisdictions across the country. Mandated reporting of statutory rape as child abuse potentially has the unsought effect of deterring some of the adolescents most in need of confidential health care from seeking that care. Knowledge and advocacy on the part of nurses can help mitigate the harms of overly inclusive reporting and enforcement.
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