Mistake of Age

Mistake of Age

Statutory rape is defined by the age of the complainant, so the age line carries the whole offense, and a defendant who misjudges that line raises the question this section answers: does a belief that the partner was old enough matter when the partner was in fact below the statutory age? The answer depends first on where the strictness of the offense sits. The prosecution must still prove that the defendant engaged in intercourse and acted with whatever mental state the jurisdiction requires for that act, and liability is strict only as to the age element.¹ Age is a fact about the complainant and not something the defendant does, which is why a legislature can dispense with proof that the defendant was aware of it while still insisting that the act itself be intended. Strict liability on age therefore leaves the rest of the offense in place, and the discussion below concerns only whether a mistaken belief about that one fact can excuse.

Behind the doctrinal debate lies a choice about who bears the risk of an error about age. Strict liability places the risk on the older partner, who is better placed than the complainant to check and who is the person the offense is aimed at. A fault-based rule protects the defendant who took reasonable care and shows no tendency toward exploiting the young, at the price of turning the complainant's apparent age into a contested fact at trial. Each position reflects a different view of what the offense is for, and jurisdictions have divided accordingly. This section takes the traditional majority rule first, then the two theories once used to justify it and the objections to them, and then the growing number of jurisdictions that allow a defense when the mistake was reasonable. The traditional rule remains the default in many states, but it cannot be described as universal.

Strict Liability Default

The traditional approach, accepted at first in virtually every state, treats the offense as one of strict liability on the age element. A defendant who mistakenly believed the partner was above the age cutoff has no defense on that ground, no matter how reasonable the belief and whether it rested on the partner's own statements or on a mature appearance.² Courts applying the rule uphold convictions even where the defendant's judgment about age was supported by the complainant's appearance, sexual sophistication, and false statements, and by the defendant's own careful efforts to learn the true age.³ The rule is also still the majority position: by one recent count about two-thirds of the states deny a mistake defense under any circumstances, while roughly a third permit one in at least some situations.⁴ Liability is strict only as to age, and students lose points when they stretch the rule to cover the intercourse itself, which the prosecution must still prove was intended.

The traditional rule rests on two practical judgments. The first concerns incentives: the older partner decides whether to proceed and can verify age before acting, and because belief is a private state of mind that usually only the defendant can describe, a defense built on belief would invite claims of reliance that are hard to test. The same logic that makes the complainant's actual maturity irrelevant, as the protective rationale discussed earlier would predict, makes the defendant's belief about that maturity irrelevant as well. The second judgment concerns the trial itself. In Owens v. State (Md. 1999) the court upheld strict liability even though the statute had no age-gap requirement, reasoning that the state's interest in protecting children outweighs any interest an individual has in sex with children near the age of consent, and that denying the defense means the state “avoids the risk that the inevitably emotional statutory rape trial will focus unjustifiably on the child’s appearance and level of maturity.”⁵

The strictness is harsh because of what follows a conviction. In Maryland the offense carries up to 20 years' imprisonment, in Wisconsin up to 40 years if the minor is under 16 and up to 60 years if the minor is under 13, and in Georgia up to 20 years with a mandatory minimum of 10 years when the perpetrator is 21 or older.⁶ Sentences of that size are the reason critics press the point that a defendant may be punished severely without any finding of fault about the one fact that makes the intercourse criminal. Those critics have not persuaded most courts. The argument that omitting a mental state as to age makes the statute unconstitutional has failed in decisions such as United States v. Ransom, Pritchard v. State, and State v. Granier.⁷ Judge Bell, dissenting in Garnett v. State (Md. 1993), argued that a rule excluding fault altogether offends due process, and State v. Guest (Alaska 1978) accepted a version of that view, but Guest remains an isolated holding, and virtually all other courts uphold strict liability even when they express discomfort with it.⁸

Courts also tend to treat the choice as belonging to the legislature. State v. Holmes (N.H. 2007) held that, absent legislative action, a reasonable mistake of age is no defense, State v. Anthony (N.C. 2000) read the act's title and its single listed defense, marriage to the complainant, as signaling the traditional view, and State v. Jadowski (Wis. 2004) relied on the history and purpose of its statutes to decline to add a defense of fraud.⁹ The result is that a court asked to recognize a mistake defense usually answers that only the legislature can create it.

Moral-Wrong Theories

The traditional rule did not rest on strictness alone. Courts supported it with two related ideas, the lesser legal wrong theory and the moral wrong theory, which hold that a mistake should not excuse when the defendant still intended to do something legally or morally wrong. Under the first, a defendant who believed he was committing only a lesser crime, or a lesser degree of the same crime, may be punished for the greater offense that the facts actually constitute. Under the second, a defendant who believed the act was merely immoral, such as sex outside marriage, may be punished for the crime the facts turn out to establish.¹¹ Both theories proceed from the premise that a guilty mind in a very general sense is enough for punishment, even though the defendant did not intend, know, or even negligently risk the fact the statute makes decisive.¹²

The theories also explain why some mistakes were allowed to excuse while a mistake about age was not. In Prince, an English decision now repudiated in England but still influential in American law, the court noted that a defendant who mistakenly believed the girl's father had consented would have a valid defense, because he “would not know he was doing an act wrong in itself.”¹³ A defendant who thinks the partner is older still believes he is engaged in extramarital sex, which the community condemns, so the mistake leaves the wrongfulness in place. The defense of mistake on this view “rests ultimately on the defendant’s being able to say that he has observed the community ethic.”¹⁴

The central objection is that criminal fault has to match the harm the offense punishes. Crimes defined by a bad result generally require mental fault of the same kind and intensity as that result, because deterrence, correction, and condemnation all focus on the harm the actor intended and not on the harm that happened to occur.¹⁵ A person who meant to injure another and unexpectedly damaged property is not guilty of an intent-to-destroy-property offense, since the intent was aimed at something else. Applied to age, the same reasoning shows the mismatch: a defendant who reasonably believed the partner was an adult intended intercourse with an adult, and the harm statutory rape punishes, the sexual exposure of someone too young, was neither intended nor foreseen.

The theories carry two further weaknesses. First, moral duties should not be identified with criminal duties, so when sex between adults is itself not a crime, it should not become one merely because the defendant made a reasonable mistake about age, and the “community ethic” the moral wrong theory invokes is hard to identify in a heterogeneous society whose public statements about morality often differ from its private conduct.¹⁶ Second, the inference from mistake to wrongdoing weakens as the age line rises. Early statutes reached children under ten or twelve, but later statutes designate ages of eleven, twelve, thirteen, fourteen, or higher, and with older adolescents it is not always clear whether intercourse is dangerous or morally undesirable.¹⁷

Rejecting the two general theories does not mean a mistake must always excuse. Strict liability on a particular element can be justified as a policy judgment about a particular offense, and the Model Penal Code illustrates the point: it rejects both theories as general principles, yet it denies any mistake defense when criminality depends on the child being below ten, “for no credible error regarding the age of a child in fact less than 10 years old would render the actor’s conduct anything less than a dramatic departure from societal norms.”¹⁸ The judgment is made offense by offense and age by age, and the Code's approach is taken up in the final section of this chapter.

Reasonable Mistake Defense

The criticism of the traditional rule has produced a countertrend. Starting in 1964, some courts began to recognize that a statutory rape defendant was entitled to a defense of reasonable mistake of fact about the complainant's age, and later authorities have treated the question as a policy choice that belongs in the statutory definition of the crime.²⁰ Over a third of the states have adopted statutory provisions recognizing mistake as to age as a defense, at least for some ages, and another count puts the number of states allowing a reasonable mistake at no fewer than seventeen.²¹ Courts have contributed little to this growth. In Fleming v. State (Tex. Crim. App. 2014) the court treated the question as one for the legislature, and a concurring opinion counted only four states operating under a judicially created mistake-of-age defense, with only one of those resting on a state constitution.²² The defense therefore exists in most places because a legislature wrote it, so the first step on any problem is to read the controlling statute.

Legislatures that write the defense choose among several standards, and the choice decides how much the defendant must show. The drafting options are these:

• Reasonable belief. The great majority of provisions require that the defendant's belief that the complainant was above the statutory age be reasonable, which makes negligence the basis of liability for the age element, so an honest but unreasonable belief gives no defense.²³
• Reasonable belief grounded in the complainant's own statements. One provision requires that the belief be based upon declarations as to age by the alleged victim, which ties the defense to what the complainant said and not only to how the complainant looked.²⁴
• Recklessness. A few provisions use a recklessness standard, under which the defendant is liable only if aware of and consciously disregarding a substantial risk that the complainant was underage, so a careless but honest belief is a defense.²⁵
• Lack of knowledge. One state provides that it is enough that the defendant “did not know” the complainant was at the age that triggers the conclusive presumption of inability to consent.²⁶

The defense does not appear evenly across the age spectrum. Where it exists, it typically applies when the relevant age of consent is greater than 14 or when the two parties are close in age, and nearly all such provisions require that the mistake be reasonable.²⁷ The mechanism is the same one that undercut the moral wrong theory above. A defendant who reasonably believes a partner is just above a high age line, in the reasoning offered for the Model Penal Code's version of the defense, “evidences no abnormality, no willingness to take advantage of immaturity, no propensity to corruption of minors.”²⁸ With a young child no such belief is credible, which is why the defense fades at the low end of the age scale.

The opposing arguments remain strong. The concern stated in Owens is that a mistake defense shifts the trial toward the complainant's appearance and maturity, and although the defense asks about the defendant's belief, the evidence that supports or defeats that belief is mostly about the complainant.²⁹ The older common law defense of promiscuity, which let the defendant prevail by showing the minor's prior sexual behavior, drew the objection that it required an intrusive and value-laden inquiry into the victim's sexual history.³⁰ A reasonableness standard narrows that inquiry but cannot remove it, which is why jurisdictions that adopt the defense often confine it to the higher ages or to cases of close-in-age partners.

Strict Liability Default

Once the prosecution has shown that the complainant was below the statutory age, the remaining question is whether the defendant's belief about that age matters. The traditional answer, accepted at first in virtually every state, is that it does not: the prosecution need not prove that the defendant knew the complainant's age, and a mistaken belief that the complainant was older is no defense, however reasonable the belief was and whether it rested on the complainant's own statements or on a mature appearance.³² The result is the same when the complainant's appearance, apparent sophistication, and verbal misrepresentations all supported the defendant's judgment, and even when the defendant made careful efforts to learn the truth.³³ The law thus places the whole risk of misjudging age on the adult, which is why the offense is described as strict liability as to age.

That strictness is narrower than the label suggests. Every offense is built from elements, and the mental state required can differ from one element to the next. In statutory rape the act of intercourse is the conduct element, and the defendant must still have the mental state the statute requires for that act; only the age element, a circumstance of the offense, carries no mental-state requirement at all.³⁴ Students overextend the doctrine when they call statutory rape a crime without mens rea (a guilty mental state), because liability is strict only as to age. The line also sorts mistakes into two groups: a belief about age is irrelevant to guilt, while a lack of awareness that intercourse is occurring defeats the mental state the offense does demand.

The rule stands out against the background presumption of criminal law. Courts begin by presuming that a legislature meant to preserve a mental-state requirement, they impose strict liability only where the legislature has clearly chosen it, and they are especially reluctant to do so for crimes with a long common-law history or stiff penalties, reserving it for regulatory offenses with relatively light punishment; statutory rape is the leading exception to those tendencies.³⁵ The sale of liquor to minors offers a partial parallel on the no-defense result, since in most jurisdictions the licensed seller is liable even if the buyer looked of age, claimed to be of age, or produced false credentials.³⁶ The parallel is only partial because statutory rape pairs strictness with heavy punishment. Maryland authorizes up to 20 years, Wisconsin up to 40 years (and up to 60 if the minor is under 13), and Georgia imposes a mandatory minimum of 10 years when the perpetrator is 21 or older and the minor is under 16.³⁷ That combination of strict liability and severe penalty explains why the rule remains contested.

Two reasons support the rule, and they operate differently. The protective reason is that the offense exists to shield young persons from exploitation, and a mistake defense would hand an exploiter the easiest excuse available: the complainant claimed to be older, or looked it. Strict liability removes that excuse and makes the adult bear the risk of guessing wrong, which is the idea behind the statement in People v. Ratz (Cal. 1896) that one who has intercourse under such circumstances does so “in peril of the fact.”³⁸ The evidentiary reason concerns what the trial would otherwise become. A belief is a private mental state, so a defendant would try to prove it through evidence about the complainant's looks, maturity, and statements, and an inevitably emotional trial would turn toward the child. The court in Owens v. State (Md. 1999) relied on that concern and added that the state's interest in protecting children outweighs any individual interest in sex with children near the age of consent.³⁹ Ratz drew on the English decision in The Queen v. Prince, which England has since repudiated but which continues to exert a powerful influence on American law.⁴⁰

The cost of the rule shows most clearly in its hardest case. In Garnett v. State (Md. 1993), a 20-year-old man with an IQ of 52, who interacted socially at the level of an 11- or 12-year-old, had intercourse with a 13-year-old who, along with her friends, had told him she was 16.⁴¹ The trial court excluded his evidence of that belief as immaterial, found him guilty, and imposed a suspended five-year sentence with probation. The Maryland court held that the statute makes no allowance for a mistake-of-age defense, that any such change should come from the legislature, and that defendants in extraordinary cases must rely on the trial court's discretion at sentencing.⁴² A belief grounded in the complainant's own statements therefore had no bearing on guilt.

Most courts treat the choice as belonging to the legislature. In State v. Holmes (N.H. 2007) the court held that, absent legislative action, a reasonable mistake of age is no defense, and in Fleming v. State (Tex. Crim. App. 2014) the court treated the existence of a mistake defense as a question for the legislature.⁴³ Courts in several jurisdictions, including the Tenth Circuit in United States v. Ransom, have also rejected the argument that omitting a mental-state requirement about age is unconstitutional.⁴⁴ Alaska's decision in State v. Guest (1978) accepted that argument, but it remains an isolated holding.⁴⁵ As a result, about two-thirds of the states still deny a mistake defense under any circumstances, and one 2003 survey counted twenty-nine states and the District of Columbia as strict, eighteen as hybrids that apply strict liability when the complainant is very young, and only two as rejecting strict liability outright.⁴⁶ California departed from the rule in 1964 in People v. Hernandez, which permitted a defense of reasonable mistake about age, and that countertrend is taken up in the next subsection.⁴⁷

Moral-Wrong Theories

The strict liability default needs a justification, because a serious felony that ignores the defendant's belief about age departs from the usual insistence on a guilty mind. Courts historically supplied two justifications. Under the lesser legal wrong theory, a defendant who meant to commit some lesser offense can be punished for the greater one even though he was unaware of the fact that made it greater. Under the moral wrong theory, a defendant who meant to do something he knew was immoral can be punished even if the act was not a crime on the facts as he saw them. Both theories rest on the idea that a guilty mind in a very general sense will do, so liability can follow even though the defendant was not intentional, knowing, reckless, or even negligent about the facts the statute actually describes.⁴⁹ The theories therefore sort mistakes into two groups: a mistake that leaves the defendant still doing a legal or moral wrong gives no defense, and a mistake that removes that quality does.

In R. v. Prince the question was whether an honest and reasonable mistake about age was a defense to the crime of taking a girl under 16 from her father. The court said no. It treated age as a circumstance of the offense, in the way that the value of property is a circumstance of grand larceny and the time of day is a circumstance of burglary, and it stressed that it was not abandoning the requirement of mens rea.⁵⁰ Indeed, a majority of the judges indicated that an honest and reasonable mistake about the father's consent would have been a good defense, because a defendant who believed the father had consented would not know he was doing an act wrong in itself.⁵¹ The two mistakes differ in what they leave standing. The age mistake went only to the degree of the wrong, a matter of legal versus moral, so the court found enough culpability to convict, while the consent mistake would have stripped the act of its wrongfulness altogether.⁵² Judge Bramwell gave the moral wrong version of the argument: even if the girl had been as old as claimed, he reasoned, the defendant acted immorally, and he maintained that this gave full scope to the doctrine of mens rea.⁵³

This reasoning has a familiar cousin in the law of mistakes about degree. A thief who honestly and reasonably believes the merchandise is worth $195 when it is worth $205 is guilty of grand larceny where $200 is the dividing line, and a burglar who believes it is daytime is still a burglar if it is night. In both cases the mistake changes only a circumstance, and the conduct the defendant intended is not significantly different in character from the conduct committed.⁵⁴ The thief and the burglar are doing a plainly unlawful thing under either set of facts. The two theories stretch that logic to the hardest kind of case, where the defendant honestly and reasonably believes he is committing an act that is arguably immoral but not criminal, as when a defendant believes the partner is over the age of consent.⁵⁵ The stretch is easiest to accept with very young children and grows harder as the age line rises. With a girl below ten or twelve, the danger and wrongfulness of intercourse are clear, but once legislatures raised the line to 14 or higher it became unclear whether sex with an adolescent is dangerous or morally undesirable, and the relative culpability of a defendant who misjudged age became a real question.⁵⁶

Critics of the theories begin with how criminal fault is measured. Crimes defined by causing a particular bad result generally require mental fault of the same kind and intensity as that result, and fault sufficient for some other crime will not do: an actor who intends to injure a person but unexpectedly damages property ordinarily cannot be convicted of an intent-to-destroy-property offense.⁵⁷ The reason is that deterrence, correction, and just condemnation all attach to the harm the actor intended rather than the harm that happened to result.⁵⁸ The actor in the property example deserves condemnation because he meant to hurt a person, which is a different wrong from the one the property offense punishes. The same analysis applies when a mistake of fact leaves the defendant's mental state mismatched with the harm his conduct produced. A defendant who reasonably believes the partner is an adult meant to have intercourse with an adult, and the harm statutory rape addresses is intercourse with a child, so fault toward the first does not measure fault toward the second.

The second objection is that moral duties should not be identified with criminal duties. Where the sex the defendant believed he was having is not itself a crime, it should not become one merely because he made a reasonable mistake about age.⁵⁹ The court in Garnett v. State pressed this point against the two theories: Maryland has no law against fornication, so there was no lesser crime for which the defendant could be punished, and criminalizing an act done without a guilty mind because some members of the community consider it immoral rests uneasily on subjective and shifting norms.⁶⁰ The third objection explains why shifting norms matter. The moral wrong theory asks whether the defendant observed the community ethic, and in a heterogeneous society, where public pronouncements about morality often differ from private conduct, a court has no reliable way to say what that ethic is.⁶¹ Other authority points the same way. The Model Penal Code rejects Prince and holds, with some exceptions, that a person who honestly and reasonably thought he was committing a less serious offense is punished only for that offense, and the constitutional protection that sex outside marriage may now enjoy could leave the reasoning of Prince without its footing.⁶² Lord Steyn likewise wrote that Bramwell's reasoning would not be upheld if tested in a modern court, because Prince is out of line with the modern trend of judging a defendant on the facts as he believes them to be.⁶³ Taken together, these objections leave the two theories with little solid footing as a basis for strict liability.⁶⁴

None of this means that every statutory rape statute must allow a mistake-of-age defense. The critique targets two general justifications, and it leaves open that strict liability as to a particular element can rest on sound policy reasons specific to a particular offense. The Model Penal Code illustrates the point. It rejects the lesser legal wrong and moral wrong theories as general principles, yet § 213.6(1) makes it no defense that the actor believed the child was older when criminality depends on the child being under ten, because no credible error about the age of a child that young would make the conduct anything less than a dramatic departure from societal norms.⁶⁵ That judgment is made for one offense, at one age, on grounds particular to it, which is the method the critics recommend: policy decided offense by offense instead of uncritical acceptance of broad theories.⁶⁶ Rejecting the theories removes a justification but does not itself create a defense, as Garnett shows, since the court that found the theories unconvincing still held that the Maryland statute made no allowance for a mistake-of-age defense and left any change to the legislature.⁶⁷ The next subsection turns to the jurisdictions that have made that change.

Reasonable Mistake Defense

Under the traditional default, a defendant who honestly judged the partner to be of age has no argument on that point, and a growing number of jurisdictions have rejected that result.⁶⁹ Under the reasonable mistake of age defense, a defendant who honestly and reasonably believed the partner was at or above the age line is not guilty, even though the partner was in fact below it. The defense began with a court decision. In People v. Hernandez (Cal. 1964) the statute reached intercourse with a female under 18, and the complainant was 17 years and 9 months old.⁷⁰ The defendant argued on appeal that the trial court should have let him prove his good-faith, reasonable belief that she was 18 or older, relying on code provisions that require a union of act and intent and that excuse an act done under a mistake of fact disproving criminal intent.⁷¹ The California Supreme Court accepted the argument and held that a reasonable and bona fide but mistaken belief that the woman was at least 18 is a defense to statutory rape.⁷²

The reasoning rests on what a mistake of fact does. A mistake of fact is a defense when the belief is honest and reasonable, concerns a fact, and negates the mental state the offense requires.⁷³ The strict rule avoids that analysis by assuming the defendant knowingly gambled on the partner’s age, so that criminal intent is present whatever the facts turn out to be. Hernandez questioned that assumption by asking where the criminal intent is in a defendant who satisfied himself, on reasonable evidence, that the partner was of age. Such a defendant took no conscious risk and instead eliminated the risk as far as he could, and the court could not conclude that his intent became more heinous merely because he was misled.⁷⁴

The reasonableness requirement follows from the reason the defense exists at all. A defendant who reasonably misjudged age has shown no abnormal willingness to exploit immaturity and no tendency toward corrupting minors, so convicting him as severely as a knowing exploiter would cut the link between blame and fault.⁷⁵ Requiring a belief that is reasonable, and not merely honest, preserves most of the protective purpose, because a defendant who ignored obvious signs of youth or never bothered to check still loses. The defense does carry the cost that strict-liability courts identified: it reopens the inquiry into the complainant’s appearance, maturity, and statements, which a flat rule keeps out of the trial.⁷⁶

Because allowing the defense amounts to requiring some fault about age, the statutes that recognize it differ chiefly in how much fault they require. Over a third of the states have adopted statutory provisions making mistake of age a defense, at least as to some ages.⁷⁷ The great majority require that the belief be reasonable, which makes negligence the basis of liability on the age element: the defendant loses if a reasonable person in his position would not have believed the partner to be of age, however sincerely he held the belief.⁷⁸ One of these provisions goes further and requires the belief to be “based upon declarations as to age by the alleged victim,” so that appearance alone never suffices.⁷⁹ A few statutes use a recklessness standard, under which the defendant loses only if he was aware of a substantial risk that the partner was under the line and consciously disregarded it, so an unreasonable judgment he never doubted does not support conviction.⁸⁰ At the generous end, one state says it is enough that the defendant “did not know” the partner was below the line, which excuses even a careless guess.⁸¹

The declarations requirement answers the cost noted above. A trial confined to what the complainant said about age is shorter and less intrusive than one that weighs looks, maturity, and manner, and it ties the defendant’s protection to information the complainant supplied.

The jurisdictional split decides whether a defendant’s precautions matter at all.

The defense reaches the age element and nothing else. The defendant must still have the required mental state as to the act of intercourse itself, since liability is strict, in a traditional state, only as to age.⁸³ The complainant’s consent stays irrelevant as well, because the law conclusively presumes that a person below the line is too naive to understand the act, so the belief that matters concerns age and not willingness.⁸⁴ The defense also presupposes that the partner was in fact below the line. A partner who was actually of age means that no offense occurred at all, which is a different argument from a mistaken belief.⁸⁵

Many states still reject the defense or confine it. Since Hernandez, the question has increasingly been treated as a policy choice that belongs in the statutory definition of the offense, and where the statute is silent, most courts keep to the strict default.⁸⁶ Roughly a third of the states now allow a mistake defense at least in some circumstances, typically when the age of consent is above 14 or the parties are close in age, and about two-thirds deny it in every circumstance.⁸⁷ The confinement to older partners follows the reasoning behind the defense. Where the age line sits in the high teens, a defendant who reasonably misjudges age shows no abnormal willingness to exploit immaturity, but with a very young child no credible error about age would make intercourse anything other than a dramatic departure from social norms.⁸⁸ The Model Penal Code writes that split into one provision, permitting reasonable mistake as to the upper age and forbidding it as to the lower age that marks the more serious offense, a design taken up in the next section.⁸⁹ The Maryland court in Garnett v. State observed that even among states with a mistake defense, it is often unavailable when the partner is 14 or younger, and the complainant there was 13.⁹⁰ The English statute described in Hernandez shows another form of confinement: it excused intercourse with a partner between 13 and 16 only if the defendant was under 24, had not previously been charged with a like offense, and had reasonable cause to believe the partner was 16 or older.⁹¹