What is the Age of Consent in Virginia?
In Virginia, 18 is the legal age of consent. This means that people 18 years of age or older can legally consent to have sex with other people 18 years of age or older. Other than some exceptions for people in positions of authority (teachers, coaches, etc), the law assumes that anyone 18 years of age or older has the capacity to consent to sexual activity, and people engaging in sexual activity are doing so consensually.
Additionally, the concept of consent under Virginia law rests on the theory of voluntariness. Consent must be given freely by each participant, and an individual cannot consent to sexual activity under duress . This means that if one person threatens another into engaging in sexual activity, the law assumes the second person was under duress and did not consent to the sexual activity. If a person is coerced into engaging in sexual activity, it is not a consensual activity under the law.
Virginia law also notes that consent to sexual activity can be withdrawn by an individual at any time. Virginia Code § 18.2-67.4 provides that "consent may be revoked by conduct of the complaining witness given vocally or otherwise during the course of the sexual act." The law further states that if consent is revoked and the man continues to engage in sexual activity, the activity constitutes sexual battery. Engaging in sexual battery is a Class 1 misdemeanor under Virginia law.
Virginia Statutes: The Law, Age Difference & Exceptions
Age difference is a significant component of the legal redress available to young defendants who face serious statutory rape charges. Virginia does not have an age difference provision, as some states have, but it does have the very similar close-in-age exemption. Under Virginia § 18.2-361(B), if one defendant is 13 years of age or older, the other defendant must be less than 3 years younger than the older defendant at the time of the offense. For example, if you are 13 and are accused of statutory rape with a 10-year-old, there is no defense or exemption; you will face a charge of class 4 felonious statutory rape. However, if you are 13 at the time of the offense with a victim who is 11, you may now assert the close-in-age exemption as a defense. However, the exemption only pertains to partners in sexual activity when both are minors. When the older defendant is an adult, the conventional legal defense provisions apply and there is no room for an age difference provision. For example, if you are 16 and are charged with statutory rape with a 17-year-old, the close-in-age exemption from charging can save you from prosecution if your certain public agencies (e.g. schools) are the complainants. If you are 16 and are charged with statutory rape involving a 12-year-old, there is no close-in-age exemption and you would be charged as a felon.
Penalties You Can Face for Violating Age of Consent
Virginia law defines statutory rape as sexual intercourse with a person who is over the age of 13 but under the age of 15 and who is not your spouse. Statutory rape in Virginia is a Class 4 felony, meaning that a conviction may result in one to ten years in prison and/or fines of up to $100,000. A minimum period of five years of supervised probation will also likely follow any prison sentence. No matter how old you are, this sex crime is chargeable only as a class 4 felony in Virginia. This also means, that a parent or guardian’s permission or consent can play no role in the extenuation of the crime being charged. Even when a child is 14 years old and misrepresented themselves as an adult, if the stigma associated with a statutory rape charge isn’t enough, the fact that the punishment for the crime is not sex offender registration but would entail jail time may be enough to deter the now adult from falsely identifying themselves in this manner. Generally, if the person charged sought to marry the minor in the first instance, it would not change the classification of the crime. A defense like this may be available in some other states with fewer sentencing options where the only punishment for the crime is sex offender registration. To be clear, the accusation is entirely dependent on the interpretation of the minor’s guardian and the police department involved as to whether or not the minor was "deceiving" and not whether the adult could ethically be persuaded that the minor was of a certain age. The parent or guardian of the minor may also be charged with a misdemeanor for harbored or concealed Custody of a Minor. A conviction results in a fine up to $500. Convictions of this nature involve a payment of a fine, so the parents could in theory take the plea agreement with their minor child. Doesn’t the general public think parents are automatically to blame for their children’s conduct? The answer to that question is yes. Bottom line, parents are ALWAYS responsible for what occurs with children in their care.
Minors and the Law
Many people wonder about the rights and protections afforded to young and juvenile individuals in Virginia concerning consent and sexual activity in general. While in many cases individuals under the age of 18 may not be able to enter into contracts, sue on their own behalf or otherwise partake in adult life as a legal actor, the law provides some protections for victims of criminal activity. In fact, the law is somewhat more protective to young individuals in the criminal context, so that the coercion or corruption of minors is a much more serious offense than it would be otherwise . Similarly, those young individuals accused of a criminal act that does not involve a minor victim are likewise treated differently where the possible conviction and sentence is concerned. In many cases, those under the age of 18 cannot be convicted of certain crimes, or only face certain lesser penalties—in fact, the flexibility of the court is much higher when dealing with juvenile offenders than what exists for those over the age of 18.
How Does Virginia Compare to Other States?
Unlike Virginia, the District of Columbia has a "close in age" law, also referred to as the "Romeo and Juliet" exception. Connecticut does not have a close in age law. Maryland’s law has several exceptions by design while Georgia has no exception for close in age at all. Most states have the age of consent set at 16 with exceptions based on the closeness of ages. For example, Pennsylvania and New York combine the two criteria and require the younger person to be at least 13 years old for the law to apply. Many other states have relied on the contemporary judicial practice of requiring that the age difference not exceed four years.
Common Misconceptions
One of the most common misunderstandings when dealing with the age of consent in Virginia is the implicit belief that a physical sexual act must have occurred for an offense to have been committed. Nothing could be further from the truth. A physical sexual contact is not required for prosecution under Virginia law and the age of consent statutes. Under § 18.2-61, the state does not need to prove any sort of physical contact ever occurred to go after an individual. Instead, the state only needs to show the accuser was 13 or younger at the time of the alleged offense, and the perpetrator was either 18 years old or older; if the perpetrator was under 18, police only need to show that perpetrator had sex with someone who was 13 or younger . By definition, anyone implicated in this crime is already guilty under the law, and the burden of proof falls on the defendant rather than the accuser. There is no requirement that the defendant physically engage in sexual activity whatsoever.
Under § 18.2-64, the court needs only prove that the perpetrator committed a sexual act against the victim, not that the victim suffered injury in the process. In a case against a school employee, the court also needs to show that the school employee acted inappropriately toward someone who was 18 or younger, not that the employee’s actions harmed the victim. The law treats these as serious crimes regardless of the circumstances.