In Indiana, what has come to be known as the “Romeo and Juliet” defense, has been codified by the Indiana Legislature. See A.W. v. State, No. 20A03-1606-JV-1333, 2017 WL 586475, at 2 (Ind. Ct. App. Feb. 14, 2017). In describing the defense, one Indiana appellate judge stated “that the General Assembly created the Romeo and Juliet defense for situations where genuine love between consenting partners may be found to excuse behavior that would otherwise be criminal.” Beedy v. State, 58 N.E.3d 987, 991 (Ind. Ct. App. 2016), transfer denied, 2017 WL 237764 (Ind. Jan. 12, 2017). To be sure though, the defense has conditions, which all must be satisfied before the defense can successfully be used.
Indiana Code § 35-42-4-9 states that the crime of sexual misconduct with a minor is defined as a person at least eighteen (18) years of age who, with a child at least fourteen (14) years of age but less than sixteen (16) years of age, performs or submits to sexual intercourse or other sexual conduct commits sexual misconduct with a minor, a Level 5 felony. However, it is a defense to a prosecution of the crime if:
- The person is not more than four (4) years older than the victim;
- The relationship between the person and the victim was a dating relationship or an ongoing personal relationship. The term “ongoing personal relationship” does not include a family relationship;
- The crime was not committed by a person who is at least twenty-one (21) years of age; was not committed by using or threatening the use of deadly force; was not committed while armed with a deadly weapon; did not result in serious bodily injury; was not facilitated by furnishing the victim, without the victim’s knowledge, with a drug or a controlled substance or knowing that the victim was furnished with the drug or controlled substance without the victim’s knowledge; and was not committed by a person having a position of authority or substantial influence over the victim.
In addition to Indiana, other states have permitted or created this defense as well. While the language of the various defenses vary, the intent of the provisions is the same. See, e.g., Danielle Flynn, All the Kids Are Doing It: The Unconstitutionality of Enforcing Statutory Rape Laws Against Children and Teenagers 47 New. Eng. L. Rev. 681, 687–90 (2013) (exploring the age gap provisions and the so-called Romeo and Juliet laws).
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