Is sex with a 17-year-old statutory rape?

|The Volokh Conspiracy |

Ed Driscoll (InstaPundit) cites a 2009 article by John Podhoretz (Weekly Standard) about the film "Manhattan":

The false classic is Woody Allen's "Manhattan," a movie about a comedy writer named Ike who lives in a grand Fifth Avenue apartment. He spends his evenings with intellectual friends at Elaine's. He is 42 years old. And he is sleeping with a 17-year-old girl named Tracy.

Tracy is a senior in high school. We see him lurking across the street from the Dalton School as he waits for her to emerge at 3:00 P.M. She joins him at dinner with his intellectual friends, and they do not bat an eye. Rather, they praise her, and, by inference, Ike for choosing her.

It is clear from the context of "Manhattan" that we are never to question Ike's character. In fact, the movie suggests he is a person of vastly better character than his friend Yale, because later on in the movie, after Ike has dumped Tracy and broken her heart, Yale steals a girlfriend from him. "You think you're God," Yale says when Ike upbraids him. "Well," says Ike, "I've got to model myself after somebody."

In the end, Ike returns to Tracy. He is upset that she is going to Paris for a few weeks. She tells him not to worry, she will be true: "You have to have a little faith in people."

It is inconceivable that such a movie could be made today, in which a middle-aged man commits statutory rape—and is considered a moral exemplar to boot. And yet there was not a peep in 1979.

I'll save for another post the question whether there's something immoral about 42-year-olds having sex with 17-year-olds, and focus here on the law—and the law in New York, both then and now, is that this isn't statutory rape at all. The general age of consent in New York is 17; indeed, most states set the age of consent at 16, several more set it at 17, and only about a dozen set it at 18. (For more details, see here.) In nearly all other Western countries, the age of consent is 16 or younger, though a handful set it at 17.

And these age-16-or-17 ages of consent aren't just a post-Sexual-Revolution innovation. As I wrote in 2015:

The ages of consent throughout the United States were apparently 10 or 12 throughout much of the 1800s; they then rose to 16 or 18 by 1920, according to Mary Odem's "Delinquent Daughters: Protecting and Policing Adolescent Female Sexuality in the United States, 1885-1920," and there have been minor fluctuations since then. The last state to raise the age of consent from 14 to 16 was Hawaii, in 2001. Moreover, until recently the statutory rape laws applied only to girls, not to boys; heterosexual sex with an underage boy wasn't statutory rape at all—now it is.

(I focus here on the general age of consent—applicable to a situation such as in "Manhattan"—and set aside here the special lower ages of consent in many states when the parties are close in age to each other, and the special higher ages of consent in some states where there's, say, a teacher-student relationship among the parties.)

So say what you will about whether it's morally sound for 42-year-old men to have sex with 17-year-old girls, or with 18-year-olds, or with 21-year-olds; but don't assume that it's a crime, unless you're in one of the about a dozen states where this is so.