Is it legal to have sex with someone under the age of 18?

Dear Reader, 

Your sexual relationship may or may not be legal, depending on a number of factors. In the context of this response, and in the United States (US), minors are defined as anybody below the age of majority—the age at which an individual is legally considered an adult. While the age of majority varies by state, most states have set this age as 18 years old. Note that the age of majority is different from the minimum age for marriage. Depending on the logistics of this relationship and where you live, it’s possible that what you’re describing could be considered statutory rape. 

Statutory rape is defined as a person above the age of consent engaging in sexual relations with a minor or vulnerable individual. The definition of statutory rape varies by state, depending on: 

• Age of consent. The age of consent varies by state, ranging from 16 years old to 18 years old. Consider checking out the United States Age of Consent Map for additional information. It’s important to note that age of consent is different from age of majority. According to U.S. law, those below the age of consent can’t legally consent to any sexual activity. Therefore, engaging in any type of sexual activity with someone below the age of consent is classified as statutory rape and is considered a crime. In these instances, the older individual would likely receive felony charges (i.e., rape or criminal sexual act charges) in the third, second, or first degree. 
• Age difference. There are certain exemptions for the age of consent, depending on how close in age the two individuals are. In certain states, “Romeo and Juliet” laws allow minors who are close in age and under the age of consent to have a consensual sexual relationship with one another. For example, if a state recognizes the age of consent is 17, they may allow individuals between the ages of 14 and 17 to legally consent to have sex with someone within three years of their age. 
• Position of authority. As part of a legal investigation, the relationship between the older individual and the minor may be examined. Having a position of authority or some form of power over someone may contribute to power imbalances that allow for coercion. This power may influence an individual’s decision to consent. These relationships can include, but aren’t limited to, parent and child, doctor and patient, teacher and student, coach and athlete, and any other relationship in which the older individual appears to hold a position of authority. For example, if a state list the age of consent as 16 years old, a teacher engaging in sexual activity with a 16-year-old student can be charged with statutory rape. 

In addition to the definition of statutory rape, in the US there are other factors that may also influence the classification of a case or the resulting sentence, including: 

• Whether the individual is capable of consent. According to Article 130 of the New York Penal Code, a person is unable to consent if they are under the age of 17 years old. Additionally, if that person has a mental disability, is incapacitated, physically helpless, or committed to the care and custody of the state department of corrections or hospital they’re also unable to consent. Therefore, having sex with someone who’s incapable of consent, even if they’re over the age of consent, can still result in criminal charges for rape or criminal sexual act in the third, second, or first degree. 
• Past sex offenses. If the older individual has prior sex offenses, this may heighten the severity of the charges or lead to stricter penalties if convicted. 
• Child marriage. In certain states, there are marital exemptions to statutory rape laws. 
• Mistake of Age. If there’s evidence that the older individual reasonably believed that the minor was above the age of consent, states may allow a “mistake of age” defense against statutory rape. 

Outside of the US, different laws may apply. For more information about the age of consent by country, consider checking out the World Population Review interactive map. 

Depending on the charge, there are different consequences that the older individual may face. The distinction between a rape charge versus a criminal sexual act depends on the type of sex performed (i.e., vaginal, oral, or anal), the age difference, and the specific factor that caused the younger individual to be incapable of consent. These factors likely also influence the severity of the charges (i.e., third, second, or first), with typical sentences extending up to 4, 7, or 25 years in prison, respectively. State laws may also require registration onto the sex offender registry. It’s important to note that sentencing also depends on each individual case, as well as state laws, so these sentencing guidelines may vary. 

Additionally, while sexual conduct with an individual who’s under the age of 18 may be legal—depending on the age of consent and other factors—having any form of child pornography is not. Child pornography can be defined as any visual depiction of sexually explicit content with a minor, including photographs, videos, digital media, or computer-generated images. In your situation, because your sexual partner is considered a minor in the US, any sexually explicit content of her can be considered child pornography, which also includes sending nudes through sexting. Any individual convicted of possessing child pornography may be fined or receive a prison sentence of 5 to 20 years, depending on the age of the minor involved. 

Even if this situation is legal, it may be helpful to examine the power dynamic between the two of you. When one partner is significantly older than the other, they may hold more influence and power over the other in the relationship, whether intentionally or not. Examples of power imbalances can include financial inequality, emotional manipulation, social isolation, and more. Because of this, the younger individual might feel pressured to conform to certain  expectations or struggle to express their own needs and set boundaries. 

All this to say, your situation may or may not be legal, depending on the specific details and variables of your relationship. Ultimately, the decision to continue this sexual relationship with the younger individual may carry legal and psychological repercussions. If you’re concerned about the legal consequences, you may consider speaking to someone with a legal background who can offer legal advice for your specific situation and geographic location. Additionally, you may also consider speaking with a mental health professional individually or with the younger individual to explore your relationship and examine any power imbalances. Talking with a mental health professional can also help you clarify your motivations and evaluate whether staying in this relationship is in the best interest of you and the younger individual.