Mind the Gap: Theorizing Asymmetry between Parental Involvement and Statutory Rape Laws

Abstract

Within a single state, the age at which a minor can independently obtain an abortion rarely aligns with the age at which she can legally have sex. In the majority of states, parental involvement abortion laws constrain a minor for a year or longer beyond the age of consent. During this time, the law authorizes a minor to have sex while simultaneously declaring that, should she become pregnant, she must seek permission-from a parent or a judge-to obtain an abortion. Reasons supporting this status quo are outweighed by the particular harms and obstacles-expressive and practical-created by this dissonance. Minors who are "in the gap" are deprived of agency and choice on the basis that they apparently only meet one standard of maturity but not another. Minors who engage in legal sexual activity are being punished via the judicial bypass process.