There is an old gay joke that says “if there is grass on the field, it’s ok to play”.

Of course this was just a joke to most, but to some, taken as a sage piece of advice. The issue with this is that for countless decades, gay males have been called child molesters and pedoephiles. These terms have been used to limit our civil rights, access to employment around children and even our ability to adopt.

Now, because of the internet, just about every gay man has some sort of social media account and/or dating app installed on his mobile.The legal age of gay sex consent has become even more important as guys from different generations are able to easily meet and connect.

Just like with our website, which is tailored toward those males over the age of 18, we know from personal experience being young gay boys, that we obviously have readers under this age. The same thing is happening on hook-up apps. Boys as young as 13 and 14 are known to lie their way onto a hook-up app and seek out older men for sex, usually with devastating consequences.

On the other side of this coin are the older men purposely seeking out those guys who claim to be 18 in their profile, but fishing for guys who are actually younger.

Finally, there are the guys who innocently believe that they are messaging with someone who’s actual age agrees with what he wrote in his profile. For too many guys, this information didn’t match the facts and things got worse from there.

We at GMJ thought it time to address all of these issues in one simple article that breaks down the issues regarding age of consent, as well as penalties that could apply if these laws are broken.

It is important to state that age of consent laws and laws against homosexuality/sodomy/buggery are intricately linked. Many countries and states have had separate ages for girls and heterosexual sex, and boys with homosexual sex. For the most part, this is no longer the case but understanding this fact makes everything else clearer.

History

Sex within the modern world has always been a complex issue. It ties in with reproducion, which mean societal integrity, and in many countries fell under the purview of religious institutions. None of this was going to look good for the gays.

From the very beginning, sex between males has always been treated differently, and thus more harshly, than heterosexual sex. The concept behind this was, and to some extent, still is “the need to protect boys’ morality against homosexual “perversion”.

These laws were part of a larger social and medical normative ensemble that constructed homosexuality as a “perversion” from which, more than any other form of sexual contact, children and young minors must be protected.  In Les Anormaux, Michel Foucault states, in this context, to challenge the age discrepancy in access to sexualities was to critique the perception of homosexuality as a threat to youth.

British law was the standard followed by many countries, including France and her terroties (including Canada), and, of course, the future United States of America.

Common Law

At one point, Great Britian was the world’s super power and colonizsed a large amount of the new world, including Central and South America as well as Africa and India. Their standard of law is still the base of many countries laws and policies. This extends to their views on homosexuality.

The original sin related to homosexual acts (to the extent that there is one) is related to the legal system put in place by the state, rather than to the behavior of individuals. The “Original Sin” linked to the criminalization of gay sexual activity is that of the export of the Common Law system that criminalized buggery in Great Britain in 1533. Common law adopted by other nations (or alternatively imposed on them) in conjunction 5 with subsequent judicial decisions and statutes passed over the centuries, led to criminalization of homosexual acts (Sanders 2009). Conversely, the adoption and “export” of other legal systems, particularly French Civil Law, did not have this effect, as sodomy was decriminalized immediately following the French Revolution. As a result, countries that were less influenced by British law were much less likely to criminalize same-sex relations.

Political scientists Victor Asal, Udi Sommer, and Paul Harwood examined a sample of a sample of countries between 1972 and 2002 in an attempt to identify common factors that led to explicit legal prohibition of homosexuality. In addition to expected factors like religion and economic development, they also found that countries that inherited their legal systems from British common law were far more likely to have laws against homosexual bevior:

Indeed, almost six out of every ten countries in which homosexual activity is illegal (the largest group in our dataset) have Common Law systems. Conversely, of the countries in which anti-sodomy laws were not on the books since at least 1970, over 80% have Civil Law as their legal system.

They continue:

The original sin related to homosexual acts (to the extent that there is one) is related to the legal system put in place by the state, rather than to the behavior of individuals. The “Original Sin” linked to the criminalization of gay sexual activity is that of the export of the Common Law system that criminalized buggery in Great Britain in 1533. Common law adopted by other nations (or alternatively imposed on them) in conjunction with subsequent judicial decisions and statutes passed over the centuries, led to criminalization of homosexual acts. 

British criminal law didn’t drop capital punishment for “buggery” until 1861. Homosexual acts weren’t decriminalized until 1967. By contrast, same-sex sexual relations have been legal in France, or at least not specifically prohibited, since 1791, and former French colonies are less likely to ban them today.

Gay Sex Age of Consent Laws

Over time, countries began to create their own laws stipulating when and under what circumstance an individual is able to consent to sexual intercourse. But first, they made sure to keep prohibitions against sodomy on the books.

For most of the 19th and 20th centuries, sodomy laws were used as secondary charges in cases of sexual assault, sex with children, public sex and sex with animals. Most of those cases involved heterosexual sex.

Sodomy laws began to be used in a new way, distinctly against gay people, in the late 1960’s. As the young gay rights movement began to make headway, and the social condemnation of being gay began to weaken, social conservatives began to invoke sodomy laws as a justification for discrimination.

In nine states, sodomy laws were explicitly rewritten so that they only applied to gay people. Kansas was the first state to do that in 1969. Kansas was followed in the 1970’s by Arkansas, Kentucky, Missouri, Montana, Nevada, Tennessee, and Texas. In two states, Maryland and Oklahoma, courts decided that sodomy laws could not be applied to private heterosexual conduct, leaving what amounted to same-sex only laws in effect.

In many other states, including Alabama, Florida, Georgia, Mississippi, North Carolina, North Dakota, Pennsylvania, South Dakota, Utah, Virginia and Washington, government agencies and courts treated sodomy laws that, as written, applied to all couples, straight and gay, as if they were aimed at gay people.

It was not until 2003 that the United States government repealed its long standing sodomy laws. Even though most states had either abolished them before hand, or rarely enforced them, they were commonly used against gay males, sometimes in the privacy of their own homes.

Definitions

Sodomy: Most people erroneously believe that sodomy is strictly regarding anal sex between two men, but actually it consists of any sexual act, including beastility, that is not related to procreation and thus, penile/vaginal sex. These laws effectively made any and all sex between males illegal.

Consent: The legal ability to agree, or disagree, to sexual activity with another person. This definition is further broken down into three different categories.

  • Limited by age: younger partner is deemed able to consent to having sex with an older one as long as their age difference doesn’t exceed a specified amount.
  • Limited by relationship: younger partner is deemed able to consent to having sex with an older one as long as the latter is not in a position of trust or authority, or is recognised to be abusing the inexperience of the younger one.
  • Unlimited: age from which one is deemed able to consent to having sex with anyone else or marriageable age if they must be married.

Different jurisdictions express these definitions differently. Some, like most Australian states, may say the age of consent is 16 except if the older partner is in a position of authority over the younger one. So, effectively, the unrestricted age of consent there is 18. Others, like Argentina, may say the age of consent is 18, but an exception is made down to 13 years of age, if the older partner is not in a position of authority over the younger one. The data below reflects what each jurisdiction’s legislation actually means, rather than what it states on the surface.

State by State complications

Each individual state has the authority to set the minimums for sexual consent, this includes making distinctions between sexual orientations. Until recently, many states had higher age restrictions for gay sex than heterosexual sex. But, even with this being changed, there are still issues you need to know about.

  • Limited By Age, Arkansas has the lowest age (7 years old)
  • Limited by Relationship, most state list either 16 or 17 years old
  • Unlimited is the most complex with lows of 16 for many states but a high of 21 for Washington state. Most are between 16 and 18 years of age.

Age of consent laws by state

Age of consent laws in Europe

Age of consent laws in Asia

Age of consent laws around the world

LEGAL CONSEQUENCES:

Statutory Rape: Statutory rape refers to sexual relations involving someone below the “age of consent.” People who are underage cannot legally consent to having sex, so any form of sexual activity with them violates the law. This is true even in situations where they signal their agreement.

While the crime is popularly called statutory rape, many states don’t use that term officially but instead classify it as sexual assault, corruption of a minor, or carnal knowledge of a child. Most laws on this subject are state rather than federal ones.

Corruption of a minor: The offense of engaging in sexual intercourse or other sexual activity with a person who is not one’s spouse and who is under the age of consent or another age set by statute, especially if there is a considerable age difference (usually four years or more) between the offender and the victim

Contributing to the Delinquency of a Minor: Adults who persuade or help minors commit acts of juvenile delinquency may be charged with the crime of contributing to the delinquency of a minor (or “CDM”). A minor is anyone under the age of majority, 18 in most states. Since possession of alcohol is an act of juvenile delinquency, for example, providing alcohol to minors would be an act of CDM in most cases. Colorado was the first to establish the crime in 1903 and all states now have such laws, even though most have carved out some exceptions.

Factors Affecting Punishment

The usual punishment for statutory rape is imprisonment, sometimes along with a hefty fine and an order to register as a sex offender. A number of factors affect the severity of the sentence in a particular case. One is the age of the victim: the younger, the more serious the crime. Other factors that can impact a sentence include:

  • the age difference between the two people;
  • whether the actor and victim are members of the same household;
  • whether the actor is a teacher or other employee at the victim’s school; and
  • the actor’s past sex offenses, if any.

Exception, but not for young gays

Close in Age Laws: To address potential statutory rape situations where two people are close in age, a number of states have enacted what are sometimes called “Romeo and Juliet laws.” These laws carve out a different set of rules where the offender is only slightly older than the minor.

For example, in New Jersey, having sex with an underage person is sexual assault only if the actor is four or more years older. Thus, a 22-year-old who has intercourse with a 15-year-old commits a felony, but an 18-year-old who does the same thing does nothing unlawful. In some states, such as Georgia, closeness in age is not a complete defense but rather lowers the offense level to a misdemeanor.

  • The so-called Romeo and Juliet law does not apply to sodomy in some states and puts young gay males at risk of severe prosecution and penalties.

California law prohibits anyone over the age of 18 to have sexual intercourse with anyone under the age of 17. In most cases, individuals guilty of this crime are automatically placed on the state’s sex offender registry. A provision law states that in cases where a sexual partner is over the age of 15 and their partner is within 10 years of their age, the partner over the age of 18 will not automatically be placed on the registry.

This specifically hurts LGBT relationships, where partners often fall within the provision’s acceptable age window but are unprotected when engaging in oral or anal sex. LGBT young adults are often listed as sex offenders when engaging in consensual sexual relationships. These individuals would be protected under the provision, that is if the partners were not homosexual.

Defense

Historically, statutory rape was a “strict liability” offense, meaning that it didn’t matter whether the actor knew that the other person was too young to consent to sex. Some states now permit a defense of honest mistake. Basically, the actor argues “I honestly thought she was old enough because….” However, other states don’t recognize this defense.

What this means for you

For most of you, this is information for your own edification, but for some others, this can keep you out of jail. Yes, really. If you break these laws you can and will be charged with corruption of a minor as well as statutory rape. In the United States, these convictions will brand you a life time child molester and place you on a permanent registry. Many other countries around the world have the same, or similar punishments.

THE INTERNET:

So many problems begin with logging on to some app or another. Dating/Hook-up applications come with their own specific level of headaches and landmines.

  • Even though all adult themed apps say the user must be at least eighteen (18) years old, this can still run afoul of the laws in certain states. The application might say the minor is able to consent to sexual activities, but, for example, the state of Washington strongly disagrees.
  • Dating apps have created no proof of age requirements, so younger gay males are able to log-on without consequences to him or the company.
  • You, as an adult user of dating apps have no proof that the person you are messaging with is over the age of 18, or 16 depending on the area. If this person sends you naked pictures of himself, or any other minor, you will be charged with possessing child pornography.
  • Having or soliciting sexual contact with those under the age of majority can lead to a criminal charge of corruption of a minor, among other crimes.

IN REAL LIFE:

Just like on-line, interactions with minors can lead to serious legal and criminal charges for adults. Unfortunately, the law in most jurisdictions don’t care where you met him, what age he told you he was, what type of identification he showed you and/or if anyone else vouched for his age.

For example

You go into a gay bar in a new city. Everyone knows that in the United States, the legal age to drink alcohol is twenty-one (21), so you expect that everyone inside is at least that age. You see a nice, cute, younger guy and strike up a conversation. You think he looks a little young and ask him his age. He tells you he is twenty-two (22), but most people think he is still in high school. After much conversation, you take him back to your hotel and have sex.

When his parents find out where their 15 year old son spent the night, he quickly gives you up, and you are criminally charged.

TRAVELLING:

Gay males are known to be world travellers for both business and pleasure. When sex is involved, knowing the age of consent laws can keep you from being locked up abroad. From Asia to Brazil and certain countries in Europe, there are specific cities that are known for their very young male prostitutes. But each country has their own laws regrading age of consent. Making sure to abide by the countries laws will make your travels much easier and safer.

There are numerous sad stories in the news about adult gay males who are charged with crimes because of sex with minors. The media makes it seem cut and dry but we all know that teen boys can be crafty AF. Their desire to have sex with older men, and the gay male communities fascination with youth, too often run together.

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