Why Lawrence Taylor isn't Ben Roethlisberger

Two prominent cases involving NFL players have hit the headlines recently. First, current Pittsburgh Steelers quarterback Ben Roethlisberger was accused of sexual assault [Will Brinson, NFL FanHouse] for actions in the bathroom of a Georgia nightclub with a drunk 20-year-old college student. This, of course, was the second time in less than two years Roethlisberger faced similar accusations [USA Today]. . Second, former New York Giants star Lawrence Taylor was accused of third-degree rape this week regarding an incident in a small-town New York hotel room [CBS]. Both incidents present serious image problems for the NFL [Scott Stinson, National Post], especially when seen in the light of all the other off-field criminal incidents involving NFL players.

However, there are significant differences between what happened in each case, and those are worth looking into. Despite compelling evidence that Roethlisberger may have forced himself on his accuser, he is currently facing no charges under the law. Meanwhile, Taylor is looking at up to four years in jail despite not being accused (at least so far) of forcing himself on the victim; he is accused of third-degree rape, which "is defined as sexual intercourse in which the victim is incapable of consent because the victim is under the age of 17 and the perpetrator is over the age of 21" [Dan Graziano, NFL FanHouse]. This gets into the murky area of statutory rape, which often involves sex that would normally be considered consensual if not for the ages of those involved [Jackie Burrell, About.com]. To me, Roethlisberger's conduct appears much more objectionable, but he's facing much less severe penalties.

No charges were eventually brought against Roethlisberger [ESPN], perhaps partly thanks to poor investigative work by the police [Raina Kelley, Newsweek], many of whom seemed more interested in posing for pictures [Colin Dunlap, Pittsburgh Post-Gazette] with Roethlisberger and calling the victim a liar and a "drunken bitch" [Barry Petchesky, Deadspin] than finding out what actually happened.

There also was a lack of conclusive evidence, and Georgia law requires a very high threshold of proof in these cases, demanding proof of "forcible penetration...against the will of the accuser" [Lester Munson, ESPN]. Finally, there was the accuser's own wish for the case not to go any further given the media storm. Add it all up and you can understand why the case didn't go ahead. However, that still leaves a truly disturbing [Kate Brumback, AP via The Star] police report and Roethlisberger's prior history [Jack McCallum, Sports Illustrated] of behaving badly [Mike Ganter, Toronto Sun]. Then again, being a good, well-rounded person has never particularly mattered in the NFL [Andy Hutchins, The Sporting Blog].

It shows you the severity of this case that despite the charges being dropped, Roethlisberger has been handed a six-game suspension [MJD, Shutdown Corner] by NFL commissioner Roger Goodell. It's quite possible that Roethlisberger's history of head injuries played a role [David Epstein, SI] in the awful decisions he has made, but that doesn't excuse some truly awful behaviour. Roethlisberger may have gotten off in the eyes of the criminal justice system, but it's still going [Lya Wodraska, The Salt Lake Tribune] to be tough[Kevin Cowherd, The Baltimore Sun] for him to win back the Pittsburgh fans [Michael Bean, Behind The Steel Curtain]. Still, that's probably easier to deal with than the prospect of jail time.

Taylor may not get off so easily. He's already admitted to having some contact with the victim [Robert Littal, Black Sports Online], and that alone could be enough to put him behind bars. As Mike Florio writes, "Every state has selected an age below which no person — male or female — legally may consent to sexual relations with someone over a certain age. If sex happens, even if there is consent or (as in the case of Mary Kay LeTourneau) love or (as in this case) cash payment, a violation of the law has occurred. And it doesn't matter if the defendant didn't know the person's true age." Furthermore, under New York law, sex with someone under the statewide age of consent is considered third-degree rape [AP, via SI], regardless of if the victim was forced into sex, and it can be punished by up to four years in prison.. That's why we've seen plenty of headlines saying Taylor has been accused of rape despite no allegations so far that he forced the girl to have sex. Like Roethlisberger, Taylor also has a history of bad behaviour off the field [Peter King, Sports Illustrated]. Add all that up, and it doesn't bode well for Taylor.

I don't think the targeting of Taylor is right, though. To be absolutely clear, rape is abhorrent. Forcing someone into sex is abhorrent, whether it's done by means of physical force, drugs, alcohol or abuse of power. Taking advantage of anyone is abhorrent. Consensual sex, however, is far from abhorrent. The key here is to figure out which category Taylor's charges fall into.

First, let's take a look at the definition of rape. The word comes from the Latin verb rapere [Webster's], which means grab, snatch or carry off [Wiktionary]. It made the transition to "rape" in 14th-century English, at which time it was understood to mean "to seize and take away by force" (interestingly, "rapture" also comes from "rapere"). Neither the Latin nor the original English specified sexual activity; in fact, many early uses of the word were more about plundering raids in general [Random House] than anything particularly sexual. Over time, the sexual connotations of the word became more explicit, but the idea of force was still generally involved.

Force was removed from the equation with the advent of "statutory rape" [Webster's] in the late 19th century. This basically held that sex with someone under a legal "age of consent" was tantamount to rape, as they could not legally consent to it. The age of consent has long been a tricky subject, as just about every jurisdiction has its own ideas on how old is old enough to consent. Because the debate is more about what forms of sexual activity society finds acceptable than real research about the development of the human brain, this leads to some odd anomalies, such as higher ages of consent for gay relationships than straight ones [Wikipedia].

This can lead to numerous problems. For one thing, it can mean that sexual activity many people would consider consensual (i.e. two 16-year-olds) can wind up being labeled as rape. Many jurisdictions have so-called "Romeo and Juliet laws" [Wikipedia] to deal with this, which provide certain exemptions for people within similar ages, but it again becomes about drawing firm lines between what is and isn't acceptable and the application of the laws again differs from area to area.

For example, consider the case of Genarlow Wilson, a 17-year-old from Georgia. He was sent to prison for 10 years (although he only served two) for receiving consensual oral sex from a 15-year-old; he would have been protected by the state's Romeo and Juliet law, but it was found not to apply to oral sex. Current Dallas Cowboys DE Marcus Dixon wound up in similar trouble, and was sentenced to 10 years in jail for having consensual sex with a 15-year-old when he was 18; his case was later overturned by the Georgia Supreme Court. As Rutgers law professor Sherry Colb pointed out in a CNN.com column at the time of the Dixon case, statutory rape laws have some utility, but they also carry significant potential for abuse.

Furthermore, these laws reflect "standards", and standards change over time; keep in mind that the likes of Saint Joseph, Henry VIII, Percy Shelley and Thomas Jefferson all could be accused of statutory rape in New York State. What's really odd is that according to Wikipedia's list of marriageable ages, you can get married at 16 in New York State if you have parental consent, or 14 if you have parental and judicial consent. It seems, at least from that, that the NY statutory rape law is more about legislating what sexual relationships are acceptable than concerns about 16-year-olds being too young to give proper consent.

I'm not trying to whitewash Taylor's actions here. A middle-aged man having sex with a teenage girl certainly raises questions under any circumstances, and it definitely has significant potential for mental, emotional or physical abuse. A married man hiring a prostitute definitely isn't a good situation, either. Whether prostitution itself should be a crime is up for debate, but legal or illegal, it can lead to or exacerbate significant problems including homelessness, drug addiction and abuse. Patronizing a prostitute" itself is a charge in New York, which adds to Taylor's problems. He won't be winning "Man of the Year" any time soon.

I'm not sure Taylor deserves the label of rapist, though. According to what's come out so far, it sounds like he thought he was paying an of-age prostitute [Littal] $300 for consensual sex. That's certainly a poor decision, but whether it deserves the label of rape is another question entirely. We'll see what happens in court, but to me, Taylor seems far closer to a playboy athlete like Tiger Woods, who had questionable consensual affairs, than one like Roethlisberger, who's been accused of forcing himself on women. At the moment, Taylor's in far more legal trouble than Roethlisberger, and that doesn't seem fair or just to me.