Why Is 16 the Age of Consent in Washington?

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This post was written and reported by Weekly news intern Kristy Hamilton.

The Venoy Overton case has spawned an important question: How did Washington state choose 16 as the legal age of consent to engage in sexual activity without it being considered statutory rape?

The age of consent is generally defined as the age at which an individual is considered legally competent to agree to sexual activity. The laws vary in almost every state, and the legalities are only somewhat defined. In many cases, context is everything.

In Washington, according to the website AgeOfConsent.us, there are three different circumstances when the age becomes 18 instead of 16 (RCW 9A.44.096):

(1) when a foster parent has sexual contact with his or her foster child, (2) the person is a school employee engaging in sexual acts with a student, and (3) multiple scenarios that include: "The person has, or knowingly causes another person under the age of eighteen to have, sexual contact with another person who is at least sixteen years old but less than eighteen years old and not married to the perpetrator, if the perpetrator is at least sixty months older than the victim, is in a significant relationship to the victim, and abuses a supervisory position within that relationship in order to engage in or cause another person under the age of eighteen to engage in sexual contact with the victim."

In part because Overton's case did not meet those criteria, King County prosecutors decided not to press charges against the former UW hoopster. Prosecutors also cited "insufficient evidence" as the key factor in their decision, and explained in their official statement that "a charge of Rape in the Third Degree requires proof that a victim clearly expresses a lack of consent by words or conduct. Evidence does not exist in this case to support a charge of Rape in the Third Degree."

There is, however, one other Washington state law that prosecutors have at their disposal in cases like Overton's. Specifically, RCW 9.68A.090 prohibits "communication with a minor for immoral purposes." Certain violations of this statute are a felony, such as when "the person communicates with a minor or with someone the person believes to be a minor for immoral purposes through the sending of an electronic communication." Overton admittedly sent text messages and chatted on Facebook with his accuser, but according to the Seattle Police report on the affair, the messages were not sexual in nature and he was unaware of the girl's true age.

But all that still begs the question: Why is 16 the legal standard?

Back in colonial times, America followed England's lead and affixed 10 years old as the magic number. The decision was rooted less in the psychological well-being of the child, and used more as a shield to protect virginal females during a time when the stigma of premarital sex was on par with prostitution.

Skip a few centuries, and by 1885, English conservative reformers and feminists successfully lobbied Parliament to extend the age of consent to 16. America once again followed suit.

However, an outpouring of dissent erupted between two oppositional viewpoints: the physiological vs. psychological maturity argument. At that time, the average age of menstruation was 14. The proponents of the physiological viewpoint argued that 14 should then be considered the perfect age of consent. The advocates of the psychological viewpoint contended that mental maturity occurred much later than that and must be taken into consideration.

The now-famous term "jailbait," surfaced amid the orgy (no pun intended) of contention. Jailbait is a slang word that refers to a teenage girl who is sexually attractive but legally off-limits.

With the current average age of menstruation at 12 years 4 months, the issue is becoming increasingly complicated. And in cases where the individual hides his or her identity (as in the Overton case), the dilemma becomes even more convoluted. The modern reasoning has taken more of a middle-ground approach. Basically, the discussions revolve around the physical impetus to have sex, the cognitive competence of the individual, their emotional capability, and the context of the sexual encounter.

In many ways, the laws are still haphazardly fashioned, particularly when you consider the age of consent is 16 but the legal age to view porn online is 18. Apparently the physical act of having sex is more acceptable than the fantasy.

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