Zach Anderson, Statutory Rape Laws, and the History of Age

—Nicholas L. Syrett

In October of this year, thanks in part to a petition that circulated on change.org, stories that went viral on Twitter, Facebook, and Reddit, and a good deal of media attention, an Indiana man named Zach Anderson was removed from the sex offender registry in two states. He had originally been added after having been convicted of statutory rape.

The story, briefly, is this: last year Anderson met a girl on the app “Hot or Not.” He drove from his home in Elkhart, Indiana to her home in Niles, Michigan, about twenty-two miles away, where they had sex. Anderson was nineteen at the time and the girl said that she was seventeen and had registered in the “adults” section of the app. It turns out she was only fourteen and the age of consent in Michigan is sixteen, meaning that Anderson had unknowingly committed statutory rape.

After being arrested, Anderson pled guilty to a charge of fourth-degree criminal sexual assault and spent seventy-five days in jail. Under the terms of his five-year probation, he was forbidden from using the Internet, owning a smartphone, or having any contact with anyone under the age of seventeen (save immediate family). He was also placed on the sex offender registry in Indiana and Michigan until 2040.

The case attracted as much attention and outrage as it did – aside from the fact that his parents were savvy users of the very Internet from which their son was banned – because the girl admitted to lying about her age, she and her parents opposed the prosecution, and because the judge in the original sentencing was intransigent in handing down the mandated punishment stipulated by the statute. The case provoked broader discussions about teenage sexuality in the age of the Internet and the long-term repercussions of statutory rape laws that brand teenagers as sex offenders.

What received less attention, however much it was lurking just beneath the surface of these conversations, was the function of age itself in what happened to Zach Anderson and his youthful sexual partner. While the minor girl was only fourteen, either she looked like she could be seventeen or Anderson simply willed himself to believe that this was so. Michigan’s penal code stipulates that someone is guilty of “criminal conduct in the fourth degree” if the victim “is at least 13 years of age but less than 16 years of age, and the actor is 5 or more years older than that other person.”

This age-gap exception to statutory rape law is meant to protect the older of two sexually active teenagers from prosecution; it is a result of late twentieth-century revisions to rape laws that came in the wake of the sexual revolution, after which high school students were more likely to have sex than when the original laws were passed in the late nineteenth and early twentieth centuries. But Anderson was not helped by this part of the law, despite still being a teenager, because he was nineteen. Had Anderson only been eighteen years old, one year younger than he was, he could not have been charged under the law, because the two would only have been separated by four years, not five. Had his birthday been perhaps a little later in the year or hers a little sooner, there would not have been a crime.

Age is a blunt and sometimes arbitrary legal instrument. Legal age cannot accommodate those who lie or who do not “look” their age. In a time when all of our ages are precise, fixed, and documented, Anderson had no wiggle room. He was a nineteen-year-old adult and she was a fourteen-year-old child; despite all the ambiguity of their meeting, in his first trial there had simply been no way around this. Age-based laws have also offered little meaningful protection to actual victims of sexual violence like, for instance, the countless children abused by Catholic priests.

This reliance on age has a history. Only about a hundred years ago Americans were completing the process of incorporating age into their criminal and civil law, as well as their collective consciousness. Since that time, they have increasingly used it as if it were a simple, incontrovertible, biological fact. In one way that is undeniable, but as the case of Zach Anderson also demonstrates, age itself does not fully accommodate or contain all aspects of human beings’ development, capabilities, and responsibilities. It is a legal shorthand that all too often—and statutory rape law is only one example—perpetuates limitations and enacts violence when it is meant to protect or enable. Further, at a moment when the age one purports to be online can have little relation to one’s actual age, and when numerous websites (not just Hot or Not) do little to verify age, we have entered a new era in the malleability of age itself.

While Zach Anderson’s story has a (relatively) happy ending—in the form of his revised sentence—many other young men remain in jail and on sex offender registries because their age at the time of their sexual encounters placed them there.

Nicholas L. Syrett is an associate professor of history at the University of Northern Colorado, the coeditor (with Corinne T. Field) of Age in America: The Colonial Era to the Present (NYU Press, 2015), and author of The Company He Keeps: A History of White College Fraternities (2009) and the forthcoming American Child Bride: A History of Minors and Marriage in the United States.