5. That conviction should be

Conspiracy at common law requires an agreement, the intent to agree, and the intent to commit the underlying crime (and in some jurisdictions, an overt act). Implied in this rule is that the agreeing parties are capable of committing the offense to which they are agreeing.

Statutory rape laws exist to protect underage victims from harm. Moreover, victims cannot be convicted of participating in the crimes that victimize them.

It is possible to conspire with a minor to commit a crime. For example, the boyfriend and girlfriend could have conspired to burglarize a neighboring home, and if so, both could be convicted of conspiracy to commit burglary.

Wharton's Rule only applies in cases where the underlying crime is one that, by definition, requires the voluntary, collaborative criminal participation of two persons. For example, dueling requires two individuals to agree to walk a certain distance from each other, turn, and shoot at one another until one person is killed. One person alone cannot participate in a duel. Compare this to murder, which also requires two parties, a killer and a victim, but the parties do not act together to achieve the killing. A more modern example of a crime to which Wharton's Rule may apply is bribery, where one person intentionally provides something of benefit to another, and the other willingly accepts it in exchange for doing something favorable for the person offering the bribe (e.g., a politician voting a certain way in exchange for money). A single person cannot commit bribery without the participation of another.

B is correct. The girlfriend is a member of the protected class that the law was designed to protect. She was the victim here, and that is true even if she voluntarily engaged in sexual intercourse with her 18-year-old boyfriend. This is the very type of scenario that gave rise to statutory rape laws in the first place. Further, because victims cannot be convicted of participating in the crimes that victimize them, the girlfriend cannot be a conspirator to statutory rape. Because common law conspiracy requires an agreement between two or more people and the girlfriend could not be a conspirator to this crime, the boyfriend's conspiracy conviction should be reversed.

A is incorrect. Regardless of whether underage victims participate in the crime voluntarily, they are considered the victims of statutory rape. Victims (here, the girlfriend) cannot be convicted of the crime that victimizes them (here, statutory rape). In this hypothetical, it may be true that the girlfriend agreed with her boyfriend to engage in sexual intercourse, but she is a member of the class that the statutory rape law was enacted to protect, and therefore, she cannot be convicted of that crime or of conspiring to commit that crime. Thus, even though the boyfriend agreed with the girlfriend to commit the crime, the minor girlfriend was the victim and was not actually capable of committing — or agreeing to commit, for conspiracy purposes — statutory rape.

C is incorrect. It is possible for a person to commit statutory rape without the voluntary criminal participation of the minor victim. Because statutory rape can be committed by only one of the participants, Wharton's Rule does not apply, and the boyfriend's conviction should not be reversed on this basis.

D is incorrect. As explained above, the reason the girlfriend cannot be a conspirator in this hypothetical is because she is the underage victim that statutory rape laws exist to protect. It is not because she is presumed incapable of consenting, but because she is the victim, and a victim cannot be convicted of committing (or conspiring to commit) the crime that victimizes her. Because the boyfriend was convicted of conspiring with someone who is incapable of committing the underlying crime of statutory rape, his conviction should be reversed.