Virginia’s Legal Age of Consent Explained

Legal Age of Consent

In the Commonwealth of Virginia, the legal age of consent is defined by Virginia Code section 18.2-63. In accordance with that statute, the minimum age at which an individual may legally consent to sexual activity without age being a factor is sixteen years of age. Stated succinctly, the legal age of consent in Virginia is sixteen. If one partner to a sexual encounter is at least sixteen years of age, and the other partner is at least fourteen and not more than three years older, then that element of the crime of consensual sexual coercion is satisfied. That means that it would not be a crime, in and of itself, to have sexual relations with that person. If the active partner is less than fourteen years of age, and/or the other partner is more than three years older, then the active partner could be prosecuted for crime in question. If the crime in question was Rape, the active partner could be imprisoned for life. If it were statutory sodomy, then the active partner could be imprisoned for five years. This is true even though the parties are willing and even enthusiastic about engaging in sexual activity.
However, the Virginia Code also provides defenses to this age of consent provision, and they are set forth in Virginia Code section 18.2-71. The first is that the active partner had reasonable cause to believe, and did in fact believe, that the passive partner was sixteen years of age or older . This defense has been limited by the Virginia Supreme Court to situations where there was "negligence and no more," meaning that it applies only in those circumstances where the active partner was not reckless, willful and wanton in their thought process at the time in reference to the consent of the passive partner. As a practical matter, this defense is likely to come into play only in cases where no weapons, drugs or alcohol are involved. When those elements do come into play, or when there is a large disparity in the ages of the parties, courts are more apt to find the negligence standard is not met, and that there is sufficient proof of the recklessness, willfulness and wantonness to bring the criminal charge.
In conclusion, while the legal age in the State of Virginia is sixteen, the fact that the minor party is sixteen is not a defense per se to the criminal act of sexual intercourse with a minor if the other party is over nineteen and the other factors are present. Again, in those circumstances, the age difference between the parties can mean that the party having intercourse with the minor gets charged with a felony while the minor will not. As is the case in many jurisdictions, this creates a possible disadvantage based solely on age. Unlike the other defendants in these cases, the minor in these matters cannot simply avail themselves of the defense available by statute which would allow them to avoid criminal liability.

Age of Consent Implications

The legal implications of engaging in sexual activity with someone below the age of consent in the Commonwealth of Virginia are dire. First, if both parties are the same age or if one is below the legal age of consent, no crime has been committed. For example, if two 17-year-olds engage in sexual activity there is no legal ramification. However, for any individual 18 years of age or older to engage in sexual activity with an individual who is below the age of consent is a serious crime and is considered to be sexual assault under Virginia law. Just as an example, Mr. Smith (age 32) has sex with Ms. Jones (age 16). Mr. Smith has committed statutory rape under Virginia law (i.e., unlawful carnal knowledge). Regardless of the fact that Mr. Smith argues that Ms. Jones gave him consent, he has violated Virginia law and will be charged with a crime. While it is not a capital offense, statutory rape is generally a Class 4 felony. Unless the facts and circumstances are unusual, the minimum sentence for a Class 4 felony is 2 years in prison with no chance of parole.
Moreover, and as previously mentioned, the person who is 18 years of age or older has violated Virginia law if they have sexual contact with someone below the age of consent. Unlike statutory rape, the age of the victim is not necessarily important for all other sex crimes such as: While they are not as severe as statutory rape, they are still very serious crimes and can lead to imprisonment and expensive legal fees.

Close-in-Age or “Romeo & Juliet” Exemptions

Exceptions to the age of consent in Virginia include instances of "defense of another," consent by the victim’s guardian, or when the accused reasonably believed the victim was over the age of 18. In addition, a minor under the age of 18 may still be charged with, for example, indecent liberties with a minor, while also being a direct participant in the underlying sexual offense itself. In such a case, the minor could end up facing a delinquency petition (i.e., juvenile Court proceedings) as well as charges as a directly responsible adult (i.e., proceeding in Circuit Court) for other sex crimes pursuant to the Code of Virginia § 16.1-269.1. In addition, in the case of an accused who is less than three (3) years older than the alleged victim, exceptions for close-in-age exemption apply to indecent liberties with a minor, consensual sexual battery, and consensual sodomy.

Legal Penalties for Age of Consent Crimes

In Virginia, a broad range of criminal penalties may result from sexual activity with a minor. The sexual battery statute is a Class 1 misdemeanor. (Va. Code § 18.2-67.4.) This means that sexual contact with a minor, which includes touching a child’s genitalia, buttocks, or breast or making the slightest contact with these areas for sexual pleasure, is illegal and the violator may serve up to twelve months in local jail and pay a $2,500 fine. This is likely the strongest penalty for a father that touches a teenaged daughter, but many more serious penalties await a defendant that is convicted of a violent sexual offense against a minor.
Several other statutes include much higher penalties. While similar penalties apply to sexual assaults against persons of unsound mind or incapacity, violations of these laws against minors are punishable as follows: A defendant convicted of an act of sexual violence against a victim who was a minor would serve a minimum of five years. If the defendant was living with or the parent of the minor, the minimum would be increased to ten years. Longer sentences would apply in cases where the defendant or victim inflicted bodily harm. (See Va. Code § 18.2-61.) Further, only manslaughter or first-degree murder of a minor is a worse offense than forcible sodomy. (Va. Code § 18.2-67.1.) The penalties for other criminal sexual offenses against minors are as follows: It is important to note that, if a defendant served time in prison or jail as a result of one of these convictions, the defendant would likely also be required to stay away from schools, parks, playgrounds, and other specified places where minors regularly congregate. (Va. Code § 9.1-902.) A defendant who violates this requirement would face an additional criminal offense, including mandatory jail time and a fine. (Va. Code § 9.1-902.)

How Virginia’s Age of Consent Compares to Other States

Virginia’s "age of consent" laws are similar to those in many other states across the country, but there are some differences and nuances that can affect a case.
Many states have strict statutory laws that place the minimum age of consent at 16 years. This is the highest rating state laws can receive, according to the Center for Disease Control and Prevention, which rates the age of consent laws on a scale of 0 to 5. States rated a 0 have no set age of consent, meaning there is no statutory law that forces children younger than a certain age to consent to sexual activity. Virginia is currently rated a 2, meaning that 2 is the lowest rating criteria a state can receive. This means that a 17-year-old who has a sexual relationship with a 20-year-old will not face criminal charges.
A number of other states also received a grade of 2 . Iowa, Kansas, Minnesota, Nebraska and Wisconsin also have an age of consent rating of 2. In all these states, the crime of statutory rape occurs when a person has sexual relations with a child who is under the age of consent and does not allege evidence of further age disparities that can increase the severity of the crime, such as a minor engaging in sex with an adult.
Two other states were rated a 3, indicating "some" reduction in penalties for the act of statutory rape, as well as defenses to the action. These states are Kentucky and New Mexico. Both provide age of consent grades of 3.
In all, 18 states received the top rating of 0, while a large number of states fell into categories of 1, 2 or 3. In most of the states that fell into the category of 1, the law has been on the books for many years, whereas the two states at a 3 appear to have recently added or revised laws.

History and Changes to the Age of Consent Laws

Historically, Virginia has seen a mostly unbroken tradition of statutory rape laws beginning with the common law of the state. A survey of the earlier years reveals the following progression of statutes from the middle of the 19th century: In 1972, the General Assembly amended the 1950 version dropping the distinction between male and female victims. That bill also raised the minimum age of consent from 13 years to 16 years. In 1993, the General Assembly again amended the statutory rape provisions, reinstating the distinction between male and female victims, but raising the minimum age of consent from 16 years to 18 years. Those provisions were amended again in 2005 to further raise the age of consent of a female victim to 18 years and, importantly, to reduce the minimum ages of defendants for a variety of offenses involving underage women from 18 years to 16. Such changes were reflective of a shift in societal attitudes toward such sexual offenses. For example, prior to 1990, a defendant who was less than 18 years of age and had penetrated the genital opening of an underage woman could be convicted only of misdemeanor carnal knowledge – (two years maximum sentence) even if the penetration were violent. After 1990 the defendant was still guilty of felony carnal knowledge – (five year maximum sentence) only if the penetration were violent. Otherwise, he was guilty of misdemeanor carnal knowledge – (two-year maximum sentence). There was also a reversal of the social sympathy for "Romeo and Juliet" offenders (shorthand for very young men prosecuted under statutory rape laws for consensual sex with underage girls). Virginia statutes now provide for a possible five year sentence for offenders who fall into that category, which is somewhat more in keeping with the seriousness of such offenses.

Where to Learn More

A number of resources are available for individuals seeking additional information on this subject:
The Virginia Age of Consent Statute (Code of Virginia Section 18.2-63)
The Virginia Criminal Law Digital Encyclopedia
The Virginia State Police Consent Laws FAQ
The Virginia Age of Consent Offense and Related Offences FAQ
The Virginia General Assembly Legislative Information System
The Virginia Sexual Assault Task Force
The National Sexual Violence Resource Center
Child Sexual Assault: A Resource Guide for Schools in Virginia by the Office of the Attorney General of Virginia , including an Appendix: Commonwealth’s Attorney’s Checklist of Evidence to Consider when Evaluating a Referral of a Drug-Facilitated Sexual Assault
The American Society of Law Enforcement Trainers
Adolescent Sexual Behavior: A Four-County Study of Juvenile Arrests in Virginia, by Robert W. Eckert, M.A., The University of Virginia, and Elizabeth Bricker, B.A., The University of Virginia, for the Office of Research and Statistics vs the Department of Criminal Justice Services of Virginia