Statutory Rape as a Strict Liability Crime

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Statutory Rape as a Strict Liability Crime

• and why it MUST change

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Even a dog distinguishes between being
stumbled over and being kicked U.S. Supreme
Court Justice Oliver Wendell Holmes Jr. in The
Common Law (served 1902-1932)
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Strict Liability

• Absolute legal responsibility for an act that can
  be imposed on the wrongdoer without proof of
  carelessness or fault.
• Source Legal-dictionary.thefreedictionar
  y.com
• Put another way, youre guilty regardless of
  your intentions and you have no defense before
  the court.

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The Model Penal Code on Crimes

• At common law, a crime occurred only upon the
  concurrence of an individual's act and his guilty
  state of mind. In this regard, it is well
  understood that generally there are two
  components of every crime, the actus reus or
  guilty act and the mens rea or the guilty mind or
  mental state accompanying a forbidden act. The
  requirement that an accused have acted with a
  culpable mental state is an axiom of criminal
  jurisprudence.

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Statutory rape requires no mental state ( in 33
out of 50 U.S. States)

• Mistake of age is irrelevant before the court.
• The accused is automatically guilty even if he
  believed the age of his partner to be the
  required legal age.
• The penalties are a felony record and Sex
  Offender Registration. (most states)

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Why Strict Liability?

• The origination of Strict Liability finds its
  roots in Public Welfare Offenses.
• Public Welfare Offenses arose out of the
  Industrial Revolution (late 1700s to mid
  1800s), when large corporations were responsible
  for major environmental damage that endanger the
  public health and safety.
• Prosecution was difficult to pin on a single
  perpetrator.
• Proving mental states for individuals within a
  company was difficult and costly and was a huge
  drain on the public resources.

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4 Concepts of the Public Welfare Doctrine (These
concepts needed to be met in order to justify the
offense as having no required mental element)
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(1) Risk Assumed by the Actor

• Historically, the U.S. Government has regulated
  sex acts between consenting adults, even in the
  privacy of their own home. The last of these
  regulating laws was abolished as unconstitutional
  in Lawrence v. TX (2003) which struck down sodomy
  laws nationwide. As little as 50 years ago, it
  was illegal for a married couple to use birth
  control (Griswold v. CT, 1965). Fornication,
  known as sex outside of marriage, was illegal and
  regulated by law.
• 50 years ago, the average American citizen would
  have been on notice that their consensual sex
  acts may be illegal under the law.

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Would the average American still be on notice
that their consensual acts with another of legal
age may be criminal?

• Is fornication (sex before marriage) still
  illegal? NO
• Are contraceptives illegal? NO
• Is consensual sodomy illegal? NO
• Conclusion The average adult American in
  todays society would NOT know that their
  consensual sex acts with another of legal age
  might be illegal.

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(2) Government and Societal Interests

• There is a societal interest in preventing and
  deterring sexual activity with the immature.
• Exploitative relationships
• Possible coercion (based on the age difference
  alone)
• STDs
• Pregnancy
• Emotional harm

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Is this Interest Best Served through Strict
Liability?

• Strict Liability denies a defendant due process
  of law (he is guilty till proven guilty, instead
  of innocent till proven guilty).
• Should statutory rape require a mens rea of
  recklessly or negligently? You must know the age
  or fail to ask the age of your partner in order
  to be reckless or negligent. - this requires a
  higher degree of proof and could make prosecution
  more difficult.
• An Affirmative Defense allowing a reasonable
  mistake of age defense to a statutory rape
  prosecution. - this is the best compromise
  between more difficult prosecutions with a mens
  rea and denying a defendant the right to be
  treated innocent till proven guilty under strict
  liability.

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(3) Carries a Small Penalty

• 3 levels of penalties violations, misdemeanors
  and felonies.
• Statutory Rape is a felony in most states (some
  states have age gap exceptions, or minimum or
  maximum ages to prosecute, but the penalties are
  still felonies under most circumstances)
• Statutory Rape requires registration as a sex
  offender (for a number of years or life, varies
  by state).

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A Statutory Rape Conviction consisting of
a felony record and sex offender registration is
NOT a small penalty.
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(4) Social Stigma Today

• A felony record prevents a person from obtaining
  many jobs (CORI reports), may require seizure of
  DNA and a person may lose the right to vote in
  some states.
• Sex Offender Registration brands someone as a
  child molester and subjects them to a host of
  other registration and proximity laws.

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CONCLUSION

• Fifty some odd years ago the penalties were
  minimal, there was no social stigma, nor was
  conviction coupled with other laws (registration
  and CORI reports) and the determination that
  premarital sex by itself served as notification
  that one was engaging in risky behavior and this
  was the entire justification for a strict
  liability application.
• This is not the world we live in today!

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Moral Wrong Doctrine

• The belief that the defendant acted immorally and
  it is reasonable for him to assume the unknown
  risk that he may be guilty of some crime, even if
  he did not intend to cause harm or commit a known
  crime.

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Garnett v. State of Maryland (1993)

• Immorality is not synonymous with illegality
  intent to do an immoral act does not equate to
  intent to do a criminal act. Inferring criminal
  intent from immorality, especially when the
  accused is not even aware that the act is
  criminal, seems unjustifiable and unfair.
  Justice Robert M. Bell, dissent

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NH Bill of Rights

• Art. 15. Right of Accused. No subject shall
  be held to answer for any crime, or offense,
  until the same is fully and plainly,
  substantially and formally, described to him or
  be compelled to accuse or furnish evidence
  against himself. Every subject shall have a right
  to produce all proofs that may be favorable to
  himself to meet the witnesses against him face
  to face, and to be fully heard in his defense, by
  himself, and counsel. No subject shall be
  arrested, imprisoned, despoiled, or deprived of
  his property, immunities, or privileges, put out
  of the protection of the law, exiled or deprived
  of his life, liberty, or estate, but by the
  judgment of his peers, or the law of the land
  provided that, in any proceeding to commit a
  person acquitted of a criminal charge by reason
  of insanity, due process shall require that clear
  and convincing evidence that the person is
  potentially dangerous to himself or to others and
  that the person suffers from a mental disorder
  must be established. Every person held to answer
  in any crime or offense punishable by deprivation
  of liberty shall have the right to counsel at the
  expense of the state if need is shown this right
  he is at liberty to waive, but only after the
  matter has been thoroughly explained by the court.

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Our Fundamental Rights

• We hold them so dearly, yet we allow the mentally
  innocent to be guilty until proven guilty with
  respect to Statutory Rape.
• Age is the required fact that makes this act
  illegal. If one is reasonably mistaken, it
  should be allowed as a defense.

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A man who engages in consensual
intercourse in the reasonable belief that his
partner has reached the age of consent
evidences no abnormality, no willingness to take
advantage of immaturity, no propensity to
corruption of minors. In short, he has
demonstrated neither intent nor inclination to
violate any of the interests that the law of
statutory rape seeks to protect Justice
Robert M Bell (Garnett v. Maryland)