In a post a couple of weeks ago on the fourth installment of the "Transformers" film franchise, I complained -- as have many others -- about the relationship between the protagonist's 17-year-old daughter, Tessa, and her 20-year-old boyfriend, Shane. I was among those disturbed that Shane carried a laminated copy of the Texas "Romeo and Juliet" laws, lest he be charged with statutory rape.
After a bit more research -- and some helpful e-mail exchanges with my colleague Eugene Volokh at University of California at Los Angeles School of Law -- I can report that under Texas law as currently interpreted, the filmmakers were dead wrong. Shane has no defense. He is clearly guilty of statutory rape.
Statutory rape in Texas is prosecuted under two different provisions of the penal code. The Romeo and Juliet laws (which protect relationships when the parties are within three years in age) are a defense only if the charge is brought under chapter 22 of title 5 of the penal code. But under that section, the age of consent is 17 anyway, and so Shane was not in violation.
Increasingly, however, Texas prosecutors have proceeded under an entirely different provision, section 43.25 of title 9, which prohibits causing a minor to engage in a sexual performances. Under that section, the age of consent is 18, and the relevant Romeo and Juliet law is a defense only when the age difference between victim and accused is two years or less. Although section 43.25 is no masterpiece of drafting, and some Texas criminal defense lawyers don't believe that it has anything to do with statutory rape, the state's courts have upheld multiple convictions under the provision.
Under Texas law, then, Shane is indeed guilty of statutory rape. And the filmmakers' offensive little joke is even worse than we thought.
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