October 1, 2020

Recently, we’ve gotten several questions about what’s the legal age by which someone can have sex. Most recently, the person wrote, “I’m 18. My girlfriend is 17. I’m in Massachusetts where the age of consent is 16. Is it legal for us to have sex?” He went on to write, “I’m just unsure if this would be statutory rape, because she’s technically a minor, but the age of consent is 16. I’m so confused.” Just like this person many people, including both parents and teenagers, are confused about the legal age to have sex.

3 Different Ages You Want to Keep in Mind

There are three different ages to which you should pay attention. They are ages 14, ages 16 and ages 18. They all have their own legal significance.

Age 14 – Legal Age of Consent for Certain Types of Sexual Touching

Age 14 is really the first age in which anybody can actually consent to any type of sexual activity, including things like groping in the breast area or the butt area or the groin area. If you’re under the age of 14, you don’t have the legal ability to say yes to that type of activity. Now, an example would be, a 14-year old boy and a 13-year old girl, and the girl is saying to the boy, “I want you to touch me here. It’s okay. Don’t worry about it. I really do want that.”  However, the problem is that, in the eyes of the law a 13-year old cannot legally consent to that type of sexual activity.  Even though they may be saying “yes” and they are of sound mind and not under the influence of drugs or alcohol, the law just doesn’t give them the right to allow that type of sexual activity on their own bodies.  That 13-year-old does not have the legal ability to say yes in that circumstance.  The other person who’s doing the touching could be charged with indecent assault and battery on a person under the age of 14.  It does not matter whether it’s a boy or a girl.  This type of sexual activity would be illegal until the age of 14.

Age 16 – Legal Age of Consent for Sexual Intercourse

The next age you want to think about is 16.  In Massachusetts, the legal age of consent for actual sexual intercourse is 16.  Sexual intercourse doesn’t just mean sex as everyone understands it to be, a man putting his penis in the vagina of a woman. It also includes any type of penetration into the vaginal area, anal area and different types oral sex. Those are all considered sexual intercourse under the Statutory Rape law in Massachusetts.

If you’re under the age of 16, you do not have the ability to say yes to sex. It doesn’t matter if you’re a boy or a girl.  For example, the girl is 15 years old and has a 16-year-old boyfriend. The girl does not have the legal ability to say yes to her boyfriend, “Yes, I want to have sex with you.” Quite frankly, the girl could be older, and the boy could be under the age of 16 and the same rules would apply. They could both be under the age of 16 and theoretically they would have just committed statutory rape upon each other.

It may not make a lot of sense, but that’s unfortunately how the law currently. A person under the age of 16, legally does not have the right to say yes, even if in every other way, it seems consensual.

Age 18 – When Nude Photos and Videos Are Not Child Pornography

Another thing I want to discuss that doesn’t directly relate to actual touching and sexual and sexual intercourse, is taking photos. These days, everybody’s got a cell phone and they all have cameras and there’s a lot of pictures going back and forth. Everyone’s heard of sexting, sending nude pictures of genitalia  and other private parts to each other. It happens a lot with kids these days on platforms like Snapchat and just regular text messaging.  People should be really careful about this type of activity.

The reason is that nude pictures of someone under the age of 18 is considered child pornography. In the question asked above, the guy is 18, his girlfriend is 17. There’s no problem if they have sex. That’s not an issue. That’s legal.  However, if she sends him any nude photos of herself or he takes any nude photos of her, that is a violation of the child pornography statutes. Also, if he were to send those photos out to anybody else, it’s a different violation of those laws. The way the law is written, any nude photos or videos of a person under the age of 18 is considered child pornography. It doesn’t make a lot of sense in this scenario, where they can have sex, but he can’t have photos of her.  It’s because she is under the age of 18.

There are of course exceptions, for a parent or family member having a photo of their child, say in the bathtub for example.  There is nothing sexual about these types of photos, so they would not be considered child pornography.

Remember the 3 Ages:

Age 14  The first age, which any sexual contact / touching short of intercourse is allowed

Age 16 The legal age of consent to have any type of sexual intercourse

Age 18 The age at which a nude photo or video could be taken of the person and possessed by another, without it being child pornography.

If you have any questions, please feel free to give me a call or shoot me an email. I’d be happy to speak with you about it.