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Kentucky's Age of Consent • New Law July 14, 2018 • Suhre & Associates


Written by Nathan Miller, Attorney at Law on July 13, 2018 in Criminal Law

KY’S Age of Sexual Consent New Law Effective July 14, 2018

The legal age of consent in Kentucky is 16. Generally speaking, sixteen (16) years old is the age of consent in Kentucky, meaning that anyone under the age of sixteen (16) is deemed, by law, to be incapable of consenting to a sexual act. This does not mean, however, that anyone over the age of sixteen (16) can consent to sex with just anyone else. As of July 14, 2018, it is illegal for sixteen (16) and seventeen (17) year olds – even though they are of the legal age of consent in Kentucky – to engage in sexual acts with those who are more than ten (10) years older than them. This new law can be found in KRS 510.020(3).

There is an exception to consent laws for persons lawfully married to each other. KRS 510.020(4). However, as of July 14, 2018, KRS 402.020 is amended so that no one under the age of eighteen (18) years old can legally marry in Kentucky, except that a seventeen (17) year old may petition a district or family court for permission to do so. KRS 402.210. Even then, this exception is only available to a seventeen (17) year old and another person with an age difference of no more than four (4) years. 402.205(5)(a).

Scenario 1: Kentucky law permits a seventeen (17) year old to have sex with a twenty-one (21) year old, but prohibits them from marrying unless they have permission from a court.
Scenario 2: Kentucky law permits a seventeen (17) year old to have sex with a twenty-two (22) year old, but prohibits them from marrying.
Scenario 3: It is illegal for a seventeen (17) year old to have sex with a twenty-eight (28) year old.
Scenario 4: A sixteen (16) year old can have sex with an eighteen (18) year old, twenty-one (21) year old, or a twenty-five (25) year old, but cannot marry any of them.
Scenario 5: It is illegal for a sixteen (16) year old to have sex with a twenty-seven (27) year old.

So, what does “consent” really mean? Simply put, it means that if you (or the other person) are of an age that is outside the legal parameters set by our elected officials when deciding who can/cannot have sex, you could be charged with a crime, and, if convicted, go to jail for a very long time, not to mention having to register as a sex offender. Consent laws are statutory creations with no regard for anything other than delineated boundaries. If you are outside those lines, you are considered to have committed what is commonly known as “statutory rape”. There need be no force, no violence, no trickery, drugging or coercion – the only thing that matters for purposes of being charged criminally is your, and your partner’s, respective ages.

Below is a summary of punishments in Kentucky for those found guilty of being outside these lines. Please note the following definitions: sexual intercourse = penetration, sexual contact = touching, sodomy = oral or anal sex:

  • Rape 3rd degree (D felony, 1-5 years): 21 or older has sexual intercourse with someone under 16, or someone 10 years older than a 16 or 17-year-old has sex with them. KRS 510.060.
  • Rape 2nd degree (C felony, 5-10 years): 18 or older has sexual intercourse with someone under 14. KRS 510.050.
  • Rape 1st degree (A felony, 20-50 years): Anyone* having sexual intercourse with anyone under 12. KRS 510.040.
  • Sexual abuse 1st degree: Sexual contact with a child under 12* (C felony, 5-10 years), or 21 or older having sexual contact with someone under 16 (D felony, 1-5 years, which includes masturbation in the presence of someone under 16, defined to include “phone sex”). KRS 510.110
  • Sexual abuse 2nd degree (A misdemeanor, 365 days): A person 18-21 years old has sexual contact with someone under 16. A defense may be raised if the actor was less than five years older than the other person and the other person was at least 14. KRS 510.120.
  • A defense to sexual abuse 3rd degree (B misdemeanor, 90 days) is available to persons under 18 who have had sexual contact with someone between the ages of 14 and 16. KRS 510.130
  • Sodomy 1st degree: Anyone and someone under 12* (A felony 20-50 years).
  • Sodomy 2nd degree: (C felony, 5-10 years): 18 or older and someone under 14.
  • Sodomy 3rd degree (D felony, 1-5 years): 21 or older and someone under 16.
  • Sodomy 4th degree (A misdemeanor, 365 days): persons of the same sex having sex (yes, believe it or not, this is still illegal in the Commonwealth of Kentucky)

* Note that there is no minimum age a person must be in order to be prosecuted in Kentucky. Laws that put a minimum age that someone must be in order to prosecute are sometimes referred to as “Romeo and Juliet laws”, which are intended to keep minors deemed by law to be incapable of consent from being subjected to penalties intended to punish predatory behavior.

It is important to note that none of the above takes into consideration circumstances involving those who are physically helpless, mentally incapacitated, mentally disabled, or those in a position of authority/special trust, as defined by KRS 532.045. When factors such as these are introduced into the equation, the laws become even more complex, and vary from state to state.

The following is a summary of the Age of Consent laws in the seven states bordering Kentucky:

INDIANA: Age of consent is 16. A person 18 or older having sex with someone between 14 and 16 is guilty of sexual misconduct. A person 18 or older having sex with someone under 14 is guilty of child molestation. If a person is over 21 and commits either offense, penalties are increased. A person younger than 18 is not prosecuted for having sex with someone who is at least 14. IC §§ 35-42-4-9.

OHIO: Age of consent is 16. A person 18 or older having sex with someone between 13 and 16 is guilty of sexual assault. Penalties increase when defendant is four (4) years older and again at ten (10) years older. A person younger than 18 is not prosecuted for having sex with someone who is at least 13. Ohio Rev. Code Ann. § 2907.04.

WEST VIRGINIA: Age of consent is 16. If person is younger than 16, but older than 11, there can be no more than a four (4) year age difference for it to be considered consensual. If a person is under 11, a defendant must be at least 14 to prosecute. If the person is under 16, a defendant must be over 16 to prosecute. W. Va. Code Ann. § 61-8B-5.

TENNESSEE: Age of consent is 18. If a person is between the ages of 13 and 18, but the other person is within four (4) years, it is not a crime. Anyone under 18 who is charged must be tried as a juvenile. Tenn. Code Ann. §39-13-528.

ILLINOIS: Age of consent is 17. Illinois is similar to Kentucky in that there is no minimum age a person must be before they can be prosecuted. A person older than 17 faces up to thirty years for having sex with someone under 13. A person younger than 17 who has sex with someone between the ages of 9 and 17 faces up to a year in prison. Having sex with someone between the ages of 13 and 17 if you are within five (5) years age of the other person is punishable by up to a year in prison. This increases to seven years in prison if you are more than five years older than the person you have sex with. 720 ILCS 5/11-1.70.

VIRGINIA: Age of consent is 18. An adult who has sex with someone younger than 13 can face life in prison. A person who has sex with someone between the ages of 13 and 15 faces progressive penalties that depend on whether they themselves are a minor, and/or whether they are within three (3) years of the other person’s age. A person younger than 18 cannot be prosecuted for having sex with someone who is at least 15. VA Code Ann. §18.2-371.

MISSOURI: Age of consent is 17. An adult having sex with a person younger than 14 faces up to life in prison. A person who is 21 or older who has sex with someone under 17 faces up to seven years in prison. A person younger than 21 cannot be prosecuted for having sex with someone who is at least 14. Mo. Rev. Stat. § 566.032-034.

Nathan Miller, Attorney at LawAUTHOR NATHAN MILLER
Nathan Miller is a Louisville Criminal Defense Attorney and has been practicing law in Kentucky for over 15 years. Mr. Miller spent three years on Capitol Hill in Washington D.C. crafting controlled substance and DUI legislation at the local, state and federal levels. He is also a certified practitioner of Standardized Field Sobriety Testing and has attended the National Forensic College.

402.020 Other prohibited marriages. (Effective until July 14, 2018)

  1. Marriage is prohibited and void:
    1. With a person who has been adjudged mentally disabled by a court of competent jurisdiction;
    2. Where there is a husband or wife living, from whom the person marrying has not been divorced;
    3. When not solemnized or contracted in the presence of an authorized person or society;
    4. Between members of the same sex;
    5. Between more than two (2) persons; and
      1. Except as provided in subparagraph 3. of this paragraph, when at the time of the marriage, the person is under sixteen (16) years of age;
      2. Except as provided in subparagraph 3. of this paragraph, when at the time of marriage, the person is under eighteen (18) but over sixteen (16) years of age, if the marriage is without the consent of:
        1. The father or the mother of the person under eighteen (18) but over sixteen (16), if the parents are married, the parents are not legally separated, no legal guardian has been appointed for the person under eighteen (18) but over sixteen (16), and no court order has been issued granting custody of the person under eighteen (18) but over sixteen (16) to a party other than the father or mother;
        2. Both the father and the mother, if both be living and the parents are divorced or legally separated, and a court order of joint custody to the parents of the person under eighteen (18) but over sixteen (16) has been issued and is in effect;
        3. The surviving parent, if the parents were divorced or legally separated, and a court order of joint custody to the parents of the person under eighteen (18) but over sixteen (16) was issued prior to the death of either the father or mother, which order remains in effect;
        4. The custodial parent, as established by a court order which has not been superseded, where the parents are divorced or legally separated and joint custody of the person under eighteen (18) but over sixteen (16) has not been ordered; or
        5. Another person having lawful custodial charge of the person under eighteen (18) but over sixteen (16), but
      3. In case of pregnancy the male and female, or either of them, specified in subparagraph 1. or 2. of this paragraph, may apply to a District Judge for permission to marry, which application may be granted, in the form of a written court order, in the discretion of the judge. There shall be a fee of five dollars ($5) for hearing each such application.
  2. For purposes of this section “parent,” “father,” or “mother” means the natural parent, father, or mother of a child under eighteen (18) unless an adoption takes place pursuant to legal process, in which case the adoptive parent, father, or mother shall be considered the parent, father, or mother to the exclusion of the natural parent, father, or mother, as applicable.

402.205 Petition to court by seventeen year old for permission to marry — Evidentiary hearing — Reasons for denying petition — Effect of pregnancy — Emancipation of minor — Other court-imposed condition — Fee. (Effective July 14, 2018)

  1. A minor who is seventeen (17) years of age may petition the family court in the county in which the minor resides, or the District Court in that county if a family court division has not been established in that county, for an order granting permission to marry. The petition shall contain the following:
    1. The petitioner’s name, gender, age, date of birth, address, and how long the petitioner has resided at that address, as well as prior addresses and dates of residence for the six (6) months preceding the petition;
    2. The intended spouse’s name, gender, age, date of birth, address, and how long the intended spouse has resided at that address, as well as prior addresses and dates of residence for the six (6) months preceding the petition;
    3. An affidavit attesting to the consent to marry signed by:
      1. The father or the mother of the petitioner, if the parents are married, the parents are not legally separated, no legal guardian has been appointed for petitioner, and no court order has been issued granting custody of petitioner to a party other than the father or mother;
      2. Both the father and the mother, if both are living and the parents are divorced or legally separated, and a court order of joint custody to the parents of the petitioner has been issued and is in effect;
      3. The surviving parent, if the parents were divorced or legally separated, and a court order of joint custody to the parents of the petitioner was issued prior to the death of either the father or mother, which order remains in effect;
      4. The custodial parent, as established by a court order which has not been superseded, where the parents are divorced or legally separated and joint custody of the petitioner has not been ordered; or
      5. Another person having lawful custodial charge of the petitioner;
    4. A statement of the reasons why the petitioner desires to marry, how the parties came to know each other, and how long they have known each other;
    5. Evidence of the petitioner’s maturity and capacity for self-sufficiency independent of the petitioner’s parents and the intended spouse, including but not limited to:
      1. Proof that the petitioner has maintained stable housing or employment for at least three (3) consecutive months prior to the petition; and
      2. Proof that the petitioner has completed high school, obtained a High School Equivalency Diploma, or completed a vocational training or certificate program;
    6. Copies of any criminal records of either party to be married; and
    7. Copies of any domestic violence order or interpersonal protective order involving either party to be married.
  2. Upon the filing of the petition for permission to marry, the court shall set a date for an evidentiary hearing on the petition that is no sooner than thirty (30) days but not later than sixty (60) days from the date of the filing.
  3. The petitioner may be represented by counsel in court proceeding pertaining to the petition to marry.
  4. The court shall take reasonable measures to ensure that any representations made by a minor party are free of coercion, undue influence, or duress. Reasonable measures shall include but are not limited to in camera interviews.
  5. Following an evidentiary hearing, the court shall grant the minor’s petition for permission to marry unless:
    1. The age difference between the parties is more than four (4) years;
    2. The intended spouse was or is a person in a position of authority or a position of special trust as defined in KRS 532.045 in relation to the minor;
    3. The intended spouse has previously been enjoined by a domestic violence order or interpersonal protective order, regardless of whether or not the person to be protected by the order was the minor petitioner;
    4. The intended spouse has been convicted of or entered into a diversion program for a criminal offense against a victim who is a minor as defined in KRS 17.500 or for a violent or sexual criminal offense under KRS Chapter 506, 507, 507A, 508, 509, 510, 529, 530, or 531;
    5. The court finds by a preponderance of the evidence that the minor was a victim and that the intended spouse was the perpetrator of a sexual offense against the minor under KRS 510.040, 510.050, 510.060, 510.110, 510.120, or 510.130;
    6. The court finds by a preponderance of the evidence that abuse, coercion, undue influence, or duress is present; or
    7. The court finds that it would otherwise not be in the minor party’s best interest to grant the petition to marry.
  6. A past or current pregnancy of the minor or the intended spouse shall not be sufficient evidence to establish that the best interests of the minor would be served by granting the petition for marriage.
  7. The granting of a petition for permission to marry filed under subsection (1) of this section shall remove the disabilities of minority. A minor emancipated by the petition shall be considered to have all the rights and responsibilities of an adult, except for specific constitutional or statutory age requirements, including but not limited to voting, the use of alcoholic beverages, and other health and safety regulations relevant to him or her because of his or her age.
  8. The minor shall be advised by the court of the rights and responsibilities of parties to a marriage and of emancipated minors. The minor shall be provided with a fact sheet on these rights and responsibilities to be developed by the Office of the Attorney General and the Cabinet for Health and Family Services. The fact sheet shall include referral information for legal aid agencies in the Commonwealth and
    national hotlines for domestic violence and sexual assault.
  9. The court may make any other orders that the court deems appropriate for the minor’s protection and may impose any other condition on the grant of the petition that the court determines is reasonable under the circumstances for the minor’s protection.
  10. The court may set a fee not to exceed twenty dollars ($20) to file a petition for permission to marry under this section.

402.210 Issuance of license when either party under eighteen. (Effective until July 14, 2018)

  1. If either of the parties is under eighteen (18) but over sixteen (16) years of age and not before married, no license shall issue without the consent required by KRS 402.020(1)(f), personally given or certified in writing to the clerk over the signature of the person consenting in accordance with KRS 402.020(1)(f), attested by two (2) subscribing witnesses and proved by the oath of one (1) of the witnesses,
    administered by the clerk. If the parties are personally unknown to the clerk, a license shall not issue until bond, with good surety, in the penalty of one hundred dollars ($100) is given to the Commonwealth, with condition that there is no lawful cause to obstruct the marriage.
  2. If either of the parties is under sixteen (16) years of age, no license shall issue without the permission of a District Judge, as required by KRS 402.020(1)(f)3., in the form of a certified copy of a written court order.

510.020 Lack of consent. (Effective July 14, 2018)

  1. Whether or not specifically stated, it is an element of every offense defined in this chapter that the sexual act was committed without consent of the victim.
  2. Lack of consent results from:
    1. Forcible compulsion;
    2. Incapacity to consent; or
    3. If the offense charged is sexual abuse, any circumstances in addition to forcible compulsion or incapacity to consent in which the victim does not expressly or impliedly acquiesce in the actor’s conduct.
  3. A person is deemed incapable of consent when he or she is:
    1. Less than sixteen (16) years old;
    2. Sixteen (16) or seventeen (17) years old and the actor is at least ten (10) years older than the victim at the time of the sexual act;
    3. An individual unable to communicate consent or lack of consent, or unable to understand the nature of the act or its consequences, due to an intellectual disability or a mental illness;
    4. Mentally incapacitated;
    5. Physically helpless; or
    6. Under the care or custody of a state or local agency pursuant to court order and the actor is employed by or working on behalf of the state or local agency.
  4. The provisions of subsection (3)(f) of this section shall not apply to persons who are lawfully married to each other and no court order is in effect prohibiting contact between the parties.

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