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'Romeo and Juliet defense' may apply to couples
For years in Indiana, the age at which a person could legally consent to have sex was 16.
But lawyers for young defendants accused of having sex with 14- and 15-year-olds now can pose a defense against charges of sexual misconduct with a minor.
Public Law 216, which went into effect July 1, contains a long list of criminal law changes related to sexual and violent offenses and the Indiana Sex Offender Registry, which has been renamed the Sex and Violent Offender Registry.
Among those changes, the law creates a legal defense, nicknamed the "Romeo and Juliet defense," against charges of sexual misconduct with a minor.
"The change in the law decriminalizes consensual sex among teenagers in a dating relationship if they are within four years age difference," said Larry Landis, executive director of the Indiana Public Defender Council.
Stephen J. Johnson, executive director of the Indiana Prosecuting Attorneys Council, which supported and helped write the new defense, said the change doesn't really lower the age of consent.
It modifies a 1994 law that made sexual misconduct with a minor a separate offense from child molesting as a way of dealing with teenage sexuality, Johnson said.
"We did not view the new defense as a radical change in the law; rather it created what we believed was a relatively narrow defense for certain sexual acts among young people over the age which would qualify for child molestation," Johnson said.
"It did not change the elements of the crime of sexual misconduct with a minor."
Deputy prosecutor Laura Zeman, who prosecutes most of the sexual misconduct cases in Tippecanoe County, said the law change means she'll be less focused on the defendant's knowledge of the victim's age in some cases.
In the past, charges were not filed if the state could not prove the accused was aware of the alleged victim's age. Now, Zeman suspects, more defendants will focus on the new defense.
"I would not have lobbied for it one way or the other. That's up to the legislators," Zeman said. "Whatever laws they pass, we are obligated to enforce."
When asserting the defense, Johnson said, the accused carries the burden of proving all elements of the defense.
The defense can be asserted if the party accused of having sexual contact with a 14- or 15-year-old is under 21, is no more than four years older than the alleged victim and was involved in a dating relationship with the alleged victim at the time.
Sex with a person under 14 is still child molesting, regardless of the age of the perpetrator.
The new law could protect an 18-year-old from adult felony charges if he has sex with a 15-year-old girlfriend, for instance.
The defense cannot be asserted if the accused:
- Is 21 or older.
- Uses force, a weapon or drugs, or causes serious bodily injury during the act.
- Has a position of authority or substantial influence over the victim.
- Has committed another sex offense against any other person.
"Initially, it was a narrow list of offenses" that prompted the sex offender registry requirement, Landis said. "It had to be rape, criminal deviate conduct -- some forcible sex act."
Year after year, more offenses were added to the list of convictions requiring registration.
As a result, some sexually active teenagers in consensual, dating relationships wound up with criminal convictions that required lifetime sex offender registration.
"It's debilitating," Landis said. "It affects their ability to get into school, student loans, jobs."