The Salem-Keizer school district in Oregon recently passed a rule requiring that school employees report students to law enforcement or state officials if they learn a teen is sexually active. This rule, teachers were informed, applied even if the student’s partner was another teen with whom they were in a consensual relationship.
This case got some much-deserved attention, and when district officials were challenged about the implications of this rule, they cited an incredibly literal interpretation of Oregon’s 18-year-old age-of-consent law, which directed teachers to disregard even situations that fall under Oregon’s close-in-age (or Romeo and Juliet) provision.
Though close-in-age provisions advise prosecutors not to treat consensual teen relationships in the same way they would other statutory rape cases, school officials decided that Oregon’s clause did not exempt teachers from the reporting requirement as it would be up to law officials to determine if abuse had occurred.
Many of the district’s teens were appalled, and as Angel Hudson, a junior at one of the affected schools, explained in a letter to the school board, “I can no longer talk to my health teacher about myself or others engaging in sexual activity … I lose every single teacher and faculty member in this school to talk to, or to ask advice from. I lose the ability to have a private conversation with a trusted adult who works for the district about something personal to me.”
Luckily, there has been significant pushback against this rule and its future is uncertain. But that it emerged in the first place is a reminder that plenty of people continue to pathologize adolescent sexual expression and view it as something in need of constant monitoring and regulation under the guise of preventing harm.
Salem-Keizer Is Not Alone
Though the case in Oregon surprised a lot of people, the conflation of voluntarily sexual active teens with abuse victims is not isolated to this one district. In fact, schools across the country can require teachers to report sexually active teens to the authorities.
This happens for a few reasons.
All states legally require the reporting of child abuse by people who are considered mandatory reporters. This is a category that always includes professionals like doctors and teachers.
All states have what is often called a minimum age of consent, the age under which a person cannot legally consent to sex.
But some states consider all teens who are having sex under the this age potential abuse victims, and so require the reporting of statutory rape cases. Some of these requirements are very specific. For example, California requires reporting statutory rape in cases where the younger partner under 14, and where the younger partner is 14 or 15 and the older partner is over 21.
Others determine that all underage sex, even if it occurs consensually between teens of the same age, should be reported. According to Wisconsin state law, “School professionals who have reasonable cause to believe a student under the age of 16 years has had sexual contact or intercourse with another person, where the student claims the sexual contact or intercourse is consensual, must still report this behavior to the county [child protective services] or local law enforcement agency.”
This trend to include statutory rape in reporting requirements began in 1998 when federal legislation that required federally funded health clinic workers to report statutory rape of minor clients was introduced. Several states changed their mandatory reporting requirements to include statutory rape in range of places; notably health clinics, but also in some cases, schools.
However, not all states got on board. For mandatory reporters in New York, for example, the requirements to report do not include sexually active teens. According to the New York Civil Liberties Union, “Absent other allegations of abuse or neglect, a minor is not an abused or neglected child merely because she or he is sexually active. Without other evidence of abuse, mandatory reporters should not report sexually active or pregnant minors to the Statewide Central Register.”
The Effect on Youth Advocates
We can see the harmful effect of such reporting laws on teens who are denied crucial support and treated as delinquents. But it isn’t only youth who suffer under the criminalization of teen sex. As the Salem-Keizer situation reminds us, teachers can also be harmed when they are forced out of an educational role and into a policing one.
Additionally, reproductive health-care providers have long been targeted by anti-choice advocates who use mandatory reporting and statutory rape laws to trap practitioners and health-care workers.
But parents, too, can find themselves facing legal action both for being perceived to allow a sexually active teen’s actions, as well as for failing to report them to the authorities.
For example, Mississippi’s Child Protection Act and Child Rape Protection Act of 2012 includes language that designates parents (in addition to professionals who work with children) as mandatory reporters.
Under this law, the definition of child abuse includes, “aiding or intentional toleration of a parent or caretaker of the child’s sexual involvement with any other person.” Since that “any other person” could easily be another teen, parents who don’t report in those situations could face criminal charges.
And while charges in these cases are rare, the fact that they are possible can be enough to prevent parents from offering teens much needed help and support in situations ranging from a pregnancy scare, to a sexually transmitted disease diagnosis, or a bad sexual experience.
Criminalizing Teen Sex
Over the years we have seen how laws that are designed to protect youth can also be used against them.
Kids have been slapped with child pornography charges for sexting with a peer. Or they have found themselves placed on a lifetime sexual offender registry for having consensual sex with a partner only a year or two younger.
Now, what we are witnessing in Oregon is a reminder that many people believe that we should criminalize all teen sexual activity.
Yet what we have seen time and time again is that laws and regulations like these push teen sex underground. They prevent kids from getting the help they need, and they drive a wedge between families and communities.
That’s something that is pretty clear to teens. (When I asked some of my students for their responses to the Oregon situation I heard, “It’s already hard enough to talk to adults about sex and this puts so much more pressure on the conversation,” and, “It would feel like all your private business was made public,” and, “Doing that would mean that kids who need help just don’t ask for it,” to cite but a few examples.).
Such regulation also demonize perfectly healthy expressions of sexuality, which is something that we know can have long-term negative effects on a person’s health.
Ultimately, we all want to protect teens from sexual abuse. But punitive actions directed at them do absolutely nothing to help us achieve that goal.