The Warren Jeffs trial has focused on whether or not he forced a 14-year-old girl into a marriage that she did not want; and whether he encouraged her to have sexual relations with her 19-year-old husband against her will. If so, he is an accomplice to rape. Many news outlets do not mention the young age of the girl as an aggravating factor. Ellen Goodman claims that said charge does not fit the case:
Doe’s forced marriage falls easily into the moral category of child abuse…. But I’m troubled by the charge that Jeffs is an accessory to felony rape…. The argument is that Jeffs told Doe to submit or be damned. It will be hard enough to prove that he was complicit in encouraging rape by her husband. But how can you convict a man as an accessory when the alleged rapist himself – the husband [Allen Steed] – hasn’t been charged? On the stand, he denied forcing her.
Whether or not her husband forced Miss Doe is beside the point. He was 19; she was 14. In Utah, “rape of a child” is limited to those who are under the age of 14. (Here.) Nevertheless, it is a felony to have consensual sex with a child who is between the ages of 14 and 15; if the perpetrator is less than four years her senior, it is only a misdemeanor. (Here.) As Mr. Steed was 19, this case falls into the former category. Whether or not the ex-husband “forced” her is beside the point: the Utah criminal code (and any sane moral code) prohibited his action, whether welcome, neutral, or unwanted.
Furthermore, a person is deemed to have engaged in sexual offences against a victim without consent when, inter alia, the victim is under 18 and the perpetrator occupies a “position of special trust.” (76-5-406.10) That is defined as:
76-5-404.1(h) : “position of special trust” means that position occupied by a person in a position of authority, who, by reason of that position is able to exercise undue influence over the victim, and includes, but is not limited to… a counselor, [or] religious leader….
Warren Jeffs certainly falls within that category; however, there is nothing in the Utah Criminal Code which allows for rape-by-proxy, so her husband does not. (In fact, spouses are specifically included from a laundry list of “persons in authority.” Large parts of the trial have focused on issues of consent (here, here, and here). Consent does not make this action non-criminal; it only reduces the severity of the crime from rape to sexual assault of a child. Both are felonies: there is no manner in which sex between a 14 year old and a 19 year old is not a felony in Utah. (Should a different penalty attach to rape by accomplice or sexual abuse of a minor by accomplice, her consent would be important, as would Jeff’s beliefs regarding her consent.)
Query whether Utah ought to have an exception for voluntary intercourse for girls who are either 14 or 15. Thirty-one percent of women report that their first sexual experience was either voluntary and unwanted or involuntary and unwanted. That percentage varies by age of first intercourse: 71% of those who were 13 or younger report that it was involuntary or unwanted, while only 21% of those who were 17 or 18 had the same experience. (Here.)
Interestingly, the Guardian UK states unequivocally that this is statutory rape.