There are salient differences between men and women when it comes to sex offenses. For starters, men are far more likely to commit sexual assault than women are, accounting for 96 percent of the total. They are also rearrested much more frequently.
The women who perpetrate this misconduct not surprisingly have serious problems. Like the men, they have poor coping skills and trouble showing empathy. This report by the Center for Sex Offender Management breaks female sex offenders into three types, based on clinical observations. The first group were coerced by men into abusing children, even their own. The second were themselves victims of incest or other sexual abuse — this kind of history is far more likely for women sex offenders than for men, and the women in this category also tend to victimize young children in their own families. The third type, [is] labeled “teacher/lover,” . . . They were “often struggling with peer relationships, seemed to regress and perceive themselves as having romantic or sexually mentoring ‘relationships’ with under-aged adolescent victims of their sexual preference, and, therefore, did not consider their acts to be criminal in nature.”From Slate.
Many types of sex offenders (e.g. serial rapists of strangers) at whom the most serious sex offense penalties are targeted are virtually never carried out by women in real life, even though they are somewhat stock components of erotic literature.
It is also notably that female sex offenders in all three categories are overwhelmingly alleged to have victimized minors with whom there is some sort of pre-existing relationship (except in fairly rare cases where they enable a male sex offender). Female sex offenders rarely pose a risk to either adults, or to children who are strangers to them.
The biggest issue in the third category is the issue of subjective victimization, and a related issue related to statutory rape. Simply put, our culture sees an adolescent woman who has sex with an older man in a position of trust to be more of a victim than an adolescent man who has sex with an older woman in a position of trust. Regardless of the theoretical equivalency of the acts in a gender neutral world, using the criminal justice process in a way that makes someone who hadn't previously felt victimized feel victimized and to punish someone harshly for a crime where the victim may not have felt like they were victimized is problematic.
The Statutory Rape Problem And Problems With Treating All Minors Equally
The reality is that sexual conduct is not gender neutral and that gender neutral rules should on that subject should be suspect. Likewise, apparently sexual conduct by prepubescent children has different sources, meanings and consequence than sexual conduct involving post-puberty minors.
The related statutory rape issue is that when it is undisputed that a minor below the age of consent(but post-puberty) has had sex with an sufficiently old adult (or an adult in a position of trust), the law conclusively presumes that the adult has committed the crime. While this conclusive presumption criminalizes some acts that would meet any standard of consent apart from the statutory presumption, it is exceedingly rarely the case that a minor girl will have sex with a much older man without his consent. In contrast, a case where an adolescent boy has sex with a much older woman without her consent is a far more plausible possibility, and in those cases, where a rape victim is conclusively presumed to have raped the true offender with far less proof than is necessary to prove an absence of consent on the part of the women to the boy's advances, the potential for injustice is much more troubling.
Part of this problem arises from the fact that statutory rape laws routinely apply to post-pubescent young people. The claims that a prepubescent boy's aggressive acts towards an older woman are distinctively sexual and deserving of more severe treatment relative to an assault or restraint of another person generally is doubtful, and a ten year old boy is almost as implausible as a rapist of an adult woman as a fifteen year old post-pubescent girl is as a rapist of a middle aged man.
Some of this is simple biology. The law, rightly, treats sexually contact is a less severe matter than sexual intercourse. And, biologically, it is much more straightforward for a man to have sexual intercourse with a non-consenting female than it is for a woman to have sexual intercourse with a non-consenting man. In theory both possibilities are possible, but the former happens much more often in real life than the latter. This is the basic reason why 96% of sex offenders are men and why our intuition about a minor girl raping a middle aged man is so different from our intuition about a minor boy raping an older woman.
The stated purpose of statutory rape laws - to address instances where the victim is genuinely incapable of consent - makes perfect sense in the case of prepubescent boys and girls, and exceptions and limitations to rules prohibiting sex with prepubescent boys and girls aren't necessary to advance justice.
But, many minors under the age of eighteen who have experienced puberty are quite capable of engaging in consensual sexual relationships and someone who is aroused sexually by a sixteen year old is not a deviant pedophile. The harm that statutory rape laws, child pornography laws, and child prosecution laws are addressing in these cases are less culpable because they involve the exertion of undue influence to procure consent from someone who has weak judgment but who is in fact capable of having consensual sexual relationships at least in the absence of someone employing undue influence, and real justice, as a result, requires considerably more nuance.
Likewise, the argument that someone who patronizes a prepubescent boy or girl as a prostitute or utilized a prepubescent boy or girl in making true child pornography holds water because someone with those sexual interests may very well be a real pedophile threat, and the case that the minor is being abuses is absolutely clear. A John who has sex with a ten year old prostitute is probably a menace. A John who has sex with a seventeen year old prostitute probably isn't meaningfully more culpable than a John who has sex with a twenty year old prostitute, and quite possibly a John having sex with a seventeen year old prostitute could do so legally but for the money exchanged. Colorado, however, and Colorado is hardly unique in doing so, punishes anyone involved in prostitution or pornography involving a sexually mature late teenager (perhaps even one who is married to someone or once was married to somone) with the same severe punishments that make sense in the case of prostitution or pornography involving ten years old victims.
The problem isn't limited to criminal law either. Treating sexually mature teen aged girls as children in matters of reproductive health is also problematic, in a way that it isn't for ten year old girls, for example. It invites improper meddling and imposes barriers to obtaining reproductive health services that are especially beneficial to teen aged girls and harder for them to overcome embarassment to utilize even in the absence of legal impediments to access because sexual activity by teenagers is viewed as inherently immoral by many adults even though most teens are sexually active before they are eighteen years old.