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I was pointing out that the risk wasn't statutory rape (sex where everybody involved consented), it was assault and rape, being in a boys bathroom at his invitation to have sex.

First of all, I disagree that statutory rape is "only" used in cases where everybody agrees to have sex, but I'll get to that later.

The crime I focused on was statutory rape because, on a purely technical level, the girl said "yes". She did not legally consent to the sex, because she cannot legally consent to sex under the law. I am not discounting more serious charges. I think you could also argue that it was assault and rape because of the circumstances. But because there were some outward indicia of agreement to have sex, at the very least, statutory rape is applicable.

The other point I assert is that defendant isn't barred from the defense of assumption of the risk on account of plaintiff's age.

While that may be true generally, it cannot be true with respect to statutory rape, because statutory rape disregards consent.

If she was under duress, the affirmative defense fails, because in order to assume the risk, one has to act voluntarily, of free will. Same goes for mental incapability, maybe she didn't really understand the risk (i.e., she assumed, incorrectly, that a protector would be there, based on the school's implied promise to protect her).

Agreed. I think clearly she was at least under duress. There is a more detailed article at one of the links that describes the actions she took to "stall" the boy while in the bathroom, waiting for the teachers to come rescue her.

You had originally said that the affirmative defense fails because she is a minor. That is incorrect as a matter of law.

The affirmative defense does fail as a matter of law. Statutory rape is not a consensual act. In fact, the entire reason statutory rape exists as a crime is because society deems certain persons as legally incapable of consenting to having sex (i.e., minors, mental incompetants, people under duress).

You are asserting that the criminal charge of statutory rape is only used in cases where the parties "agreed" to have sex, and thereby stating that it is a "consensual" crime. That is wrong on two counts. First, the charge of statutory rape is used in cases where the parties did not "agree" to have sex. I've seen it used specifically in instances where the D.A. wanted to avoid allowing the defense create a he said/she said situation during trial when a minor was involved.

Secondly, and more importantly, a minor cannot legally consent to sex. The crime of statutory rape itself disregards what the minor said or did, and focuses only on the minor's age vitiating the ability to give consent.

While a minor may be able to assume the risk in certain situations, it is legally impossible for a minor to consent to statutory rape. No one can consent to statutory rape, that's the whole point.

I blockquoted a case where...

What point of law do you think that block quote establishes? You are quoting the arguments of the parties involved, not the findings of the trier of fact. Then the parties settled out of court. You did not quote a court ruling or holding. That was meaningless.

So, we'd have to look at the definition of statutory rape in the state in question, but typically there are age difference exceptions, e.g., two 16 year olds having sex isn't statutory rape, but a 20 year old and 17 year old is.

-- What point of law do you think that block quote establishes? --

I took it as a conclusion the case proceeded to trial. This case is at the pretrial stage, although reading one of the links, the only claims tossed were based on federal law, and there is no federal law of negligence.

Quick remark on statutory rape being used to prosecute actual rapists - it's a sorry (but inevitable) state of affairs, when the sex wasn't consensual, to have to settle for statutory rape.

Off to check state law on statutory rape for the jurisdiction in question ...

Statutory Rape: A Guide to State Laws and Reporting Requirements

An individual is deemed incapable of consent if he or she is less than 16 years of age, with the following exceptions:

Sexual intercourse with a victim who is greater than 12 years of age and less than 16 years of age is not considered rape if the defendant is less than 2 years older than the victim.
Sexual contact with a victim who is greater than 12 years of age and less than 16 years of age is legal as long as the defendant is less than 19 years of age.
Children under 12 years of age are unable to consent to a sexual act regardless of the age of the defendant (although the act is only considered rape in cases where the defendant is at least 16 years of age).

It appears this can't fit under Alabama's statutory rape umbrella, she being 14 and he being 16.

Me: I was pointing out that the risk wasn't statutory rape (sex where everybody involved consented)

-- First of all, I disagree that statutory rape is "only" used in cases where everybody agrees to have sex ... --

I suppose we could argue that we have some difference of opinion, but we probably don't have a difference of opinion. My point was that the victim, in this case, (assuming arguendo an "assumption of the risk" defense can be raised) wasn't exposing herself to a risk of "statutory rape," rather to a risk of real rape, rape rape.

In expressing my opinion about the risk the girl was exposed to, what she thought might happen but was trying to avoid, there isn't a question or issue about whether prosecutors ever charge statutory rape for practical reasons. That is, I wasn't taking a view or expressing an opinion of when the charge of statutory rape is used by a prosecutor; which represents a risk to the boy.

I do see that statutory rape necessarily involves absence of consent, but the absence is deemed to exist, regardless of facts on the ground. This might be used to undermine my remark about statutory rape being "sex where everybody involved consented." Hopefully the casual and even careful reader will understand I was talking about facts on the ground consent, not statutorily deemed consent.