Virginia’s criminal laws provide for a variety of different offenses depending on numerous factors in the context of sexual assaults. There is one clear, easy to understand baseline in Virginia law: if there is no consent, meaning that the person with whom the accused had intercourse did not agree to have sex, then age is of no consequence. Simply put, the accused has committed a crime when no consent is given for a sexual act regardless of the other person’s age.
However, whether consent was obtained is a murky issue, and age has a lot to do with whether consent can even be given. In Virginia, when an accused – regardless of his or her own age – has sex with a minor who is 12 years old or younger, they are facing some of the most stringent punishments in Virginia. No child who is 12 years old or younger is able to consent to a sexual act. Therefore, any person, whether 13 years old, 18 years old, or 80 years old can have consensual intercourse of any kind with a person under 13 years of age.
Things get more complicated in terms of the age of consent between the ages of 13 and 17 when no force is used (i.e., in other words, when consent is given). If an adult (someone who is 18 years old or older) has consensual intercourse of any kind with a child who is 13 or 14 years old, they have committed a Class 4 felony. On the other hand, if the accused is also a minor (e.g., under 18 years old) and has consensual intercourse with a 13 or 14-year-old, then they may be guilty of either a Class 6 felony, which is the lowest felony class, or a class 4 misdemeanor, which is the lowest misdemeanor class.
To determine what class of offense will apply in the preceding situation, the court must look to the ages of the accused and the consenting minor. If the consenting minor and the accused are within three years of age, then the offense is a Class 4 misdemeanor. If they are more than three years apart, then it is a class 6 felony.
For example, assume the offense is committed on January 1, 2018; the accused is born January 1, 2001; and the consenting minor is born on January 2, 2004. In this situation, the accused is a minor because he is 17 on the date of the offense. The consenting minor is 13 years old on the date of the offense. The accused and the consenting minor are also more than three years apart. In that situation, the accused would be guilty of a Class 6 felony. However, if the consenting minor was born on December 31, 2003, they would be less than three years apart, and the same conduct would be a mere Class 4 misdemeanor.
When two minors are involved, but they are between the ages of 15 and 17 years old, then sexual intercourse would be legal as long as there is consent. Thus, a 15-year-old child and 17-year-old child may have consensual intercourse, as may a 16 -year-old child and 17-year-old child or two 15- year-old, 16- year-old, or 17-year-old children.