October 28, 1999
MISTAKE-AS-TO-AGE DEFENSE IN STATUTORY RAPE CASES: RULE IN OTHER STATES
By: Lawrence K. Furbish, Assistant Director
You asked what the rule is in other states regarding the mistake-as-to-age defense in statutory rape cases.
The majority of states do not recognize the mistake-as-to-age rule, and instead provide that proof of sexual intercourse and that the victim was below the prohibited age are sufficient for conviction. The defendant's knowledge of the victim's age is not an essential element of statutory rape.
But, beginning with a 1964 California Supreme Court decision, some states by statute or case law apparently have deviated from this traditional rule and allow the defense. It is difficult to be sure exactly how many states allow the defense. We could find no central source listing the states that allow the defense by statute, and secondary sources discussing the issue are confused and appear to contain errors.
HISTORY OF MISTAKE-AS-TO-AGE DEFENSE
Statutory rape laws were enacted in the Middle Ages to protect the chastity of young women (Oberman, Statutory Rape Laws, ABA Journal, August 1996). Some commentators believe they reflected the historical perception of women as property in need of special protection (Connerton, The Resurgence of the Marital Rape Exception, 61 Albany Law Review 237 (1997)). Statutory rape laws developed in America through English common law. The age of consent was first set at age 10 and subsequently raised to 18 or 21 (Connerton, p. 252). Statutory rape was a strict liability offense, and it did not matter whether the man thought the girl was of age or not. The courts have generally held that, in the absence of a statute to the contrary, it is no defense that the defendant believed in good faith that the female was above the age of consent or that he was misled by her appearance or her misrepresentations (65 Am Jur 2d 781).
The first successful use of the mistake-of-fact defense in a statutory rape case appears to have occurred in California in 1964 in People v. Hernandez, 393 P2d 673. The California Supreme Court ruled that the defendant's reasonable belief that the girl was 18, which was the age of consent in California at that time, was a defense, since this belief negated any criminal intent. (In fact, the girl in that case was three months less than 18.)
In the aftermath of Hernandez several states adopted its ruling as law. Illinois and New Mexico both adopted statutes allowing mistake of age as a defense in statutory rape case, but they subsequently repealed them and today do not appear to allow the defense.
The Model Penal Code contains a specific provision allowing mistake as to age, if the child is older than age 10 (Model Penal Code § 213.6(1)). When the criminal conduct depends on the child being younger than 10, it is not a defense that the actor believed the child to be older than 10. No state has adopted the whole Model Penal Code as is, and we could locate no source that lists the states that have adopted this provision. Our attempts to search by computer were unsuccessful.
An ALR annotation on mistake as to age in statutory rape cases (46 ALR 5th 499 (1997)) says courts in 33 states have ruled that mistake as to the victim's age is not a defense to statutory rape (Alabama, Arizona, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Louisiana, Maryland, Massachusetts, Michigan, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, South Dakota, Texas, Utah, Virginia, Washington, and Wisconsin). But this list appears inaccurate. In both California and Washington courts have ruled allowing the mistake-as-to-age defense.
In Indiana the courts ruled that the defendant's good faith belief that a girl was above the age of consent (age 14 in Indiana) based on her appearance and misrepresentation that she was 15 had no weight in the question of his guilt (Heath v. State, 173 Ind. 296 (1910)). But an Indiana statute makes it "a defense that the accused person reasonably believed that the child was sixteen (16) years of age or older at the time of the conduct" (Ind. Code, § 35-42-4-3).
According to the ALR article, courts in Alaska, California, New Mexico, Oregon, and Washington have ruled that at least in some circumstances a mistake as to age can be a defense in a statutory rape charge.
A few states have statutes allowing the defense, at least in certain circumstances, including Alaska, Arkansas, Delaware, Indiana, Kentucky, Minnesota, and Montana.
● In Delaware it is an affirmative defense only if the victim is under age 16 and the accused is no more than four years older than the victim (Del. Code Ch. 11 § 762).
● In Kentucky when a sex offense is based solely on the victim's incapacity to consent because of age, mental capacity, or physical helplessness, "the defendant may prove in exculpation that at the time he engaged in the conduct constituting the offense he did not know of the facts or conditions responsible for such incapacity to consent" (Kent. Penal Code, Ch. 510, §510.030).
● In Minnesota it is an affirmative defense for fourth degree criminal sexual conduct if the accused proves by a preponderance of the evidence that he believed the victim to be age 16 or older (Minn. Code, § 609.345). In third degree criminal sexual conduct it is an affirmative defense only if the victim is at least age 13 and the defendant is at least 24 months older (Minn. Code, § 609.344).
● In Pennsylvania it is a defense to any sexual offense charge that depends on a child being below the age of 14, if the defendant can prove by a preponderance of the evidence that he reasonably believed the child to be above the critical age (Penn. Stat. Tit. 18 § 3102). It is also a defense to charges of corrupting a minor, if the minor is age 16 or older and the defendant believed the minor to be age 18 or older.
These include Alabama, Connecticut, Illinois, and New Mexico.