ReformSexOffenderLaws.org: Age Analysis of Recent US Sex Laws

Age Analysis of Recent US Sex Laws

Additional background for Is there a National Age of Consent in the US?

Details of the “age analysis” performed on the PROTECT Act and the Walsh Act.

Major US federal laws governing sexual activity were passed in the PROTECT Act of 2003 and the Adam Walsh Act of 2006. An “age analysis” has been performed on these two laws to see what they say about persons below any particular age. This looked for situations where these laws make some kind of sexual activity with a person below a certain age illegal, independent of or overriding any state laws under which it would be legal. Situations where this was found to be the case are discussed in Is there a National Age of Consent in the US?. The present article shows the details of the analysis.

The first step was to search for and highlight age-related words in the two laws. (See the results of the searches for the PROTECT Act and the Walsh Act.) Next, the text associated with the found words was analyzed for meaning. The results of this analysis are as follows.

PROTECT, §105 modified the law against "sex tourism" and establishes an age of consent for two circumstances:

A federal age of consent of 18 for travel (a) into the country, (b) between states, or (c) by an American outside the USA, for the purpose of a sexual encounter. This law would apply to a foreign married couple in which one or both spouses is under 18 entering the United States on their honeymoon. It does not apply to a foreign visitor leaving the United States in order to have a sexual encounter with a minor elsewhere.
A global age of consent of 18 for citizens and residents of the USA engaging in any sexual encounter outside the country.

PROTECT, §204 increases the age for required reporting of a missing “child” from 18 to 21. This does not relate to sexual activity, so it does not establish or affect any age of sexual consent.

PROTECT, § 502 to 511 and 513 and Walsh, §206(b) relate to child pornography. The PROTECT Act provisions make it a federal crime to make (or possess or post online, etc.) sexy photos or videos that include a person under 18, even if under the relevant state law any activity depicted is legal and even if the photos or videos are made (or possessed or posted, etc.) by the minor(s) depicted in them. This essentially establishes a federal age of consent with respect to being photographed in a sexual context. The PROTECT Act provisions also include language that creates federal jurisdiction for virtually any occurrence of child pornography by covering anything that was made using materials that crossed a state or national border. The offenses defined require the making of an image; they do not apply to sex acts that are not recorded. (The definition of "minor" here is in the code chapter of the statute that it amends.)

PROTECT, §521 prohibits tricking people into looking at a pornographic website, with more stringent and more severe provisions if the person being tricked is under 18. Jurisdiction is anywhere in the US because of the use of the Internet. (The definition of "minor" here is in the code chapter of the statute that it amends.) This does not establish an age of consent.

The acts include the following definitions:

PROTECT, §102: child = under 18 with other provisos; applies to cases of murder
PROTECT, §106: minor = under 17; establishes mandatory life sentence for a second sex offense with one (unless a death penalty is imposed)
PROTECT, §362(1): child = under 18; establishes procedures when one is missing
PROTECT, §601: minor = under 18; establishes penalties for using one in a violent crime
Walsh, §111(14): minor = under 18; affects treatment of sex offender information on registry (enters meaning of “specified offense against a minor” in §111(7))
Walsh, §623: juvenile sex offender = under 18 at the time of committing a sex offense

Of these definitions, the second and fifth relate to the age of the victim of a sex offense. They do not establish whether any particular action is illegal or not, but affect the treatment, on the basis of the age of the victim, of an action determined elsewhere to be illegal. Thus they do not establish any age of consent, although they affect the impact of ages of consent established elsewhere.

The following laws affect the penalties for crimes against minors, but do not establish what activity is illegal, which must be defined elsewhere. These laws do not establish any age of consent, but they may affect the impact of federal ages of consent established elsewhere. These laws apply to federal crimes which require federal jurisdiction, meaning they are committed in a maritime or territorial jurisdiction, in a federal prison, on an Indian reservation, across a state or US border, or involving pornography made using materials that crossed a state or national border.

PROTECT, §101 affects the period of time for which a person committing a federal sex offense against a minor can be subject to judicial supervision after release from prison.
PROTECT, §202 and Walsh, §211 eliminate the statute of limitations for felony sexual abuse, for physical abuse or kidnapping of someone under 18, for felony sexual exploitation of someone under 18, or for felony sexual transportation or trafficking. (See Note I-12.)
PROTECT, §401 makes detailed changes to the federal sentencing guidelines, some of which relate specifically to crimes involving a minor victim.
Walsh, §202 establishes minimum penalties for federal crimes of violence against someone under 18.
Walsh, §206(a) increases penalties for various kinds of sexual abuse of children.

Questions of Law

The author is not an attorney and poses the following questions in case a reader of this page has the expertise to provide answers or helpful comments.

Questions:

Are there other laws that should be looked at besides PROTECT and Walsh for this analysis?
Are there ways that the above laws modify the effect of existing state laws?
Do these laws or others put some kind of pressure on states to bring their ages of consent into conformity with federal standards?
Are there instances of states’ laws being modified to bring themselves into conformity with the age provisions of these laws?
What is the effect of the funding aspects of these laws on the ages of consent in individual states?