The Law of Sex in Maryland Part 1 – Age(s) of Consent

This is the first post in a series on the law of sex in Maryland. This first post will focus on the age(s) of consent for sexual activity, defined broadly, in Maryland.

There is, simply put, no uniform age of consent in Maryland in the realm of sexuality. Maryland’s criminal code prohibits a number of different activities on the basis of age, with aggravated penalties for certain acts involving particularly young people. Some of the crimes allow for a consent defense; others by their definition involve circumstances inconsistent with consent and/or do not allow consent as a defense. No substitute exists for a close reading of the relevant statutes. While this post is primarily about consent and not about sexual predation, violence or assault, a brief discussion of sex crimes more broadly is necessary.

The Annotated Code of Maryland (abbreviated Md. Code Ann. according to a blue book known as The Bluebook published annually by one law school in suburban Boston) is divided predominantly into subject volumes, such as Real Property, Family Law and the like. The process of re-codifying Maryland’s 1957 Code – largely alphabetical such that Alcohol article would come numerically before Animals but after Adoptions – has taken a long time. Article 27, Crimes and Punishments, has been recodified into the Criminal Law Article and to some extent the Criminal Procedure Article.

Title 3 of the Criminal Law Article deals with miscellaneous crimes against persons such as robbery, kidnapping and sexual crimes, the last in subtitle 3. Maryland’s Constitution provides in the Maryland Declaration of Rights, Article V, that the common law of England as it stood on Independence Day, subject to lawful modification, is not merely the law of Maryland but something to which the Inhabitants of Maryland are “entitled.”

It is in this spirit that Maryland’s General Assembly maintained much of the common law of rape – defined at common law heteronormatively and anatomically, with force and without consent – while creating a separate charge titled as “sexual offense” for other analogous sexual acts, with parallel penalties. Interestingly, Maryland does not have a charge called “statutory rape”; certain underage sexual acts that do not constitute common-law rape are defined as one degree or another of sexual offense or as second-degree rape. Maryland’s Code even goes out of its way to preserve the common law definition of rape in cases of doubt or ambiguity by an explicit provision at section 3-302 of the Criminal Law Article.

Maryland’s sex crimes statutes rely on three “workhorse” definitions: vaginal intercourse, sexual acts – defined as:

(i) analingus;

(ii) cunnilingus;

(iii) fellatio;

(iv) anal intercourse, including penetration, however slight, of the anus; or

(v) an act:

1. in which an object penetrates, however slightly, into another individual’s genital opening or anus; and

2. that can reasonably be construed to be for sexual arousal or gratification, or for the abuse of either party.

and sexual contact, defined as the touching of the “genital, anal or other intimate area” for the sexual arousal, gratification or abuse of either party.

In general, it is a fourth degree sex offense to engage in a sexual act or vaginal intercourse when the victim is 14 or 15 AND the performer of the act is more than 4 years older than the victim. In addition, teachers who are 21 or older and meet other criteria can be prosecuted under the same statute for sexual contact, a sexual act or vaginal intercourse with a minor, even one who is over the age of 15. The charge is a misdemeanor and carries a maximum of a year in jail and a $1,000 fine maximum; to compare, the same penalties apply for driving an uninsured motor vehicle.

It is a third degree sex offense in Maryland – a felony – for someone 21 or older to engage in a sexual act or vaginal intercourse with someone 14 or 15 years old, or for anyone more than 4 years older than an under-14 victim to engage in sexual contact with that victim; sexual acts or vaginal intercourse under the latter age spreads constitute second-degree sexual offense and second-degree rape.

In sum, 16 year-olds can consent to sex, period. 14- and 15-year olds can consent legally to sex with persons less than 4 years older than themselves. Sexual activity generally between those over 18 and those under 13 brings a felony charge against the older party, period, with a significant risk of severe mandatory sentences.

There are other laws designed to protect youth from sexual exploitation, such as a 30-year penalty for a continuing course of sexual conduct with a child and laws prohibiting the exposure to minors of certain adult sexual displays. While some of those laws make common sense, §11-602 of the Criminal Law Article reads as follows:

(a) Prohibited.- A person may not knowingly sell or offer to sell to a minor:

(1) a picture, photograph, drawing, sculpture, motion picture, film, or other visual representation or image of an individual or portion of the human body that depicts sadomasochistic abuse, sexual conduct, or sexual excitement;

(2) a book, magazine, paperback, pamphlet, or other written or printed matter however reproduced, that contains:

(i) any matter enumerated in item (1) of this section;

(ii) obscene material; or

(iii) explicit verbal descriptions or narrative accounts of sadomasochistic abuse, sexual conduct, or sexual excitement; or

(3) a sound recording that contains:

(i) obscene material; or

(ii) explicit verbal descriptions or narrative accounts of sadomasochistic abuse, sexual conduct, or sexual excitement.

I won’t make a comprehensive analysis of the statute here, but it’s the “narrative description” that bothers me. How many Harlequin romance novels pass through Barnes and Noble bought by – or for – teenage girls? How many movies and audio recordings sold at Blockbuster include narrative accounts of “sexual excitement” or “sexual conduct”? Would this include Cyndi Lauper’s 1980’s suggestively autoerotic hit “She Bop“, or the film “American Pie”, or would they not be sufficiently “explicit”?  Consider that it may be lawful for a 17-year old to watch “American Pie” in the back of the theatre while engaging in “sexual conduct” with her 17-year old date (if not exposing themselves and not told to leave by management), but a jailable offense for Blockbuster to sell her the tape of “American Pie” on video after she’s seen it lawfully in the cinema under this statute – until she turns 18.  It’s legal to have sex, but not to read too much about it, at age 16 or 17 in Maryland – a perverse public policy result, since reading about sex, unlike sex itself, carries absolutely no teen pregnancy or STI risks.

While I think reasonable people can count on common sense to keep the State’s Attorneys and overtime-seeking vice cops out of the romance aisle at the local bookstore, this statute just seems sloppily overbroad in its language and constitutionally suspect accordingly under First Amendment jurisprudence, though I am not particularly well-read in that area.  This blog series will come back to these statutes with a focus on matters other than age(s) of consent in future posts.