Are Statutory Rape Laws Economically Efficient?

This post has been very difficult for me to write as I have very strong feelings against Statutory Rape laws and after a lot of research and careful consideration, I am still not sold on the efficiency of this law.

The Statutory Rape law basically makes it illegal for any person over 18 to have consensual sex with a person under 18. The laws very from state to state but let's use this definition to keep analysis simple.

This statutory rape law basically employs the idea of strict liability which says that by committing the act, the wrongdoer accepts absolute legal responsibility for the act despite any intentions and/or negligence on behalf of the victim. The penalty for statutory rape is a felony conviction, prison sentence, and sex offender registration (in some states).

Let's first look at the justification for such sever penalties. Statutory rape is not frequently enforced in that police officers are not busting down the doors of 19 years olds to see if they are having sex with a minor. There is very little evidence of the crime that is in the public domain. Therefore, we can say that the enforcement of the law is very low, normally occuring if a complaint is made. If the parties know this, the low probability of being caught will not deter the parties. The law must then enact a harsh penalty to create a deterrence effect. This is economically efficient because it reduces transaction costs.

The rule of strict liability limits the degree of evidence needed for a conviction. Since there is no defense, the prosecutor must only show that the act happened without showing intent of the wrongdoer or negligence of the victim. This greatly reduces the administrative costs of justice which are considered when making laws. The costs to prosecute must be proportionate to the benefit society will gain from the prosecution.

The statutory rape law is partly justified by true paternalism and externalities. True paternalism is the notion that, in this case, the government knows better what you need than yourself. The district attorney will pursue a statutory rape case based on the assumption that the minor is an irrational agent. But is this assumption wholly ill-based?

Criminal law does not stand solely to bring justice to minor in question but to increase social welfare; this is where externalities come in. It may be that the relationship between the wrongdoer and victim was completely consensual and further, let's assume the victim was a rational agent; why can this case still be pursued by the DA? It's the externality argument. The US government does not want sex between minors and people over 18 to occur regularly in fear of creating an atmosphere where this act was commonplace. An atmosphere such as that could have negative effects on society, including parents and general distaste among ordinary people. Therefore, it is more efficient to have a strict liability law forbidding it.

But why might the law not be efficient? Anyone labeled as a 'sex offender' must register as one and are then subject to certain proximity laws, which are economically inefficient since you are regulating voluntary transactions. A registered sex offender is also limited in the job market and as such, creates inefficiencies since a possible comparative advantage cannot be utilized.

Taking from contract law we use the concept of default rules. One of the many purposes of default rules is to encourage full disclosure of information; therefore, the default rule holds the party with more information at fault. In our discussion, would this not be the minor? Suppose that the minor misled or simply did not offer the information to the person over 18, should the minor not be held liable? Because the statutory rape law goes against this principle, it can be said that it is not the most efficient law.

On the same subject of misrepresentation, could we not charge the minor with intentional fraud or unitentional misrepresentation? The minor chose to withold information that led to the crime; why is the minor not liable? Once again, this seems to be an inefficient result.

Further, let's look at the incentives the law creates. I would have to say that when it comes to sex, disincentives are left at the doorstep. Instead of reducing the occurrence of relationships where one party is a minor, it increases the probability that these relationships are going to be kept secret. When and if someone discovers the relationship, there is no evidence to suggest that a relationship existed and the mere testimony from the minor would be seen as mere coercion, and therefore, an acquittal would be highly unlikely.

The conclusion to this piece is not definitive and I am still unsure about where I stand since there are good arguments for and against the efficiency of this law.