It’s hard to imagine a more devastatingly unjust view of child sex crimes than one that considers the victim as an accomplice in the crime committed against them. But in Tennessee that’s the very issue before the state supreme court in a case that has drawn attention to a centuries old rule that strikes some troubling contemporary notes on rape, consent and force.
In State v. Collier, a 42 year-old man was convicted of aggravated statutory rape after having sex with a 14-year-old victim. Collier, who authorities say was an old friend of the teenager’s father, allegedly picked the victim up from a friend’s house, took her back to his home where he had sex with her. When the girl returned home the next day she told police she had called Collier from her friend’s house and that he picked her up and that she had consented to sex with him. Based on her statement Collier was arrested and charged with aggravated statutory rape.
During his trial, Collier denied he had sex with the girl, but was nonetheless convicted. On appeal Collier argued there wasn’t enough other evidence to support his conviction because the victim, by telling authorities she consented to sex with Collier, was in fact an accomplice to the crime. Under Tennessee law, Collier argued, prosecutors need more than her testimony to support a conviction and absent that additional evidence his conviction should be overturned.
Believe it or not, under Tennessee common law, it is possible for a minor sex crime victim to also be an accomplice in the crime. The issue turns on whether that victim voluntarily consented to the sexual activity. If your head is swimming after that last sentence, you are not alone. The very idea of statutory rape is that some kinds of sexual encounters are legally impossible to consent to per se—such as the one between a forty-two-year-old man and a fourteen-year-old girl. Yet in Tennessee a string of cases suggest the pernicious idea that minors are culpable in their victimization is not at all a thing of the past.
The rule that a child sex crime victim can also be an accomplice in the crime committed against them first emerged from an 1895 case in which a Tennessee court found no “evidence of force” in a case involving an uncle having sex with his niece. Because there was no evidence of force, the court upheld a decision to convict them both of the crime of incest, embracing the idea that “evidence of force” is the same thing as “evidence of consent” and suggesting that even in the case of minors an absence of such evidence suggests culpability in the crime by the victim.
Then, in 1960, the Supreme Court in Tennessee reversed the conviction of a father who was accused of having sex with his daughter multiple times over two years. In that case the court ruled that despite the fact his daughter gave birth to a child she claimed was the product of that sexual abuse, without the benefit of DNA testing and absent evidence of force or other corroborating evidence, the law considered the victim an accomplice to the statutory rape crime and therefore the state needed more evidence to support the conviction.
These are the same issues, and the same sentiments, under review in the Collier case.
And that is really the point. By classifying sex abuse victims as accomplices in the crimes committed against them, those protecting abusers have succeeded in exploiting a rule that requires prosecutors use more than evidence from co-conspirators in prosecuting those charged with a crime. In almost any context other than statutory rape prosecutions, such an evidentiary prohibition on prosecutors makes sense: after all, the state should be forced to find evidence to support a charge and conviction beyond just the testimony of someone who helped commit the crime. But in the context of laws that criminalize sex between adults and children, the idea that a child’s “admission” to “consent” to an act to which they cannot legally consent is used as the basis for finding them culpable in their own victimization defies all logic, reason, and moral defense.
Some legal observers believe the Tennessee Supreme Court agreed to hear the case in order to do away with this idea once and for all. But when the state Supreme Court in Alabama unilaterally declares a fetus a person by judicial fiat, it is hard to feel optimistic about this kind of case. And that is even more true in a political climate where conservatives freely invoke the rhetoric of “legitimate rape” and “honest rape” and when judges in states like California opine on whether a rape victim’s case is “real” or merely a “criminal law problem” during the sentencing of her perpetrator. We can talk about the Tennessee law as “arcane” but if it is used to support decisions in the modern day, there is nothing arcane about it. Here the State Supreme Court has an opportunity to make an important clarification in the law and end the legal practice of diminishing the victimization of statutory rape survivors. Let’s hope the court takes such an opportunity seriously.