Statutory Rape as a Strict Liability Crime and Why It Must Change
It seems simple enough, that we would want to protect teens from early sexual experimentation and exploitive relationships and that our criminal laws are one way to accomplish that. At one time these laws were rather simple. It was a crime, but not a serious crime, as it involved some level of not legally recognized consent. In the wake of the domestic and sexual violence movement, statutory rape laws have been upgraded to serious felony crimes, stripped of the right to a defense and tossed in under the ever-widening umbrella of sex crimes requiring registration. The notion that a teen could consent under a certain age was replaced by the notion that they were absolutely unable to make any mature decision regarding sex, and thus, any sex with an older person was automatically coercive and exploitive, no matter how close the age difference. Adding to the madness, was the constant push to allow access to contraceptives, abortion and STD counseling to this same age group while simultaneously making it criminal for them to engage in sexual most sexual acts even with those considered to be peers. In order to understand the seriousness of the strict liability nature of statutory rape, it is necessary to review the origins of strict liability concepts. –By Laurie Peterson
It became necessary during the industrial revolution to designate a certain narrowly defined class of offenses (pertaining to trades and industries that affected public health and safety, known as Public Welfare offenses) as criminal based entirely on the acts committed. In enacting public welfare doctrine that carried strict liability penalties, the legislature completely negated a prosecutor’s burden to prove that a company or individual acted purposely or recklessly and only had to prove that the act itself was committed. Strict liability doctrine was understood to be the exception to underlying principles of due process of law and was to be applied only to certain crimes that fit a particular model. The rationalization for this change was that it was exceedingly expensive for the government to take on and prosecute huge companies or even to isolate one individual within the company responsible for the criminal neglect. These offenses were punished by hefty fines. But in today’s legal world, we see an ever-increasing trend of criminal offenses falling under the strict liability standard, carry not just hefty fines, but hefty prison sentences. Statutory rape laws are undisputedly leading the pack.
Generally speaking the Public Welfare Doctrine model is made up of four concepts that help to narrowly define an acceptable strict liability interest in the criminal code of our laws. The first concept is the ‘risk’ or level of wrong doing that is assumed by the actor. The second concept is the need to protect community interests. The third concept is the relatively small penalty that is attached to a conviction (originally these penalties were violations). And the fourth concept is defined by the insignificance of the stigma associated with such a conviction. In regard to the first concept, the risk assumed by the actor today, when engaging in what is believed to be legally consensual sexual activity is far different from the risk it was 50 years ago. Sexual activity that occurred outside of marriage decades ago was considered ‘risky’ by the laws and courts of our country. In fact, consensual activity was so heavily regulated that it outlawed contraceptives and designated certain consensual sex acts (such as sodomy or premarital sex) as illegal. These laws and their penalties were regularly enforced. Based on the widely known social mores and laws of the time, where sexual activity (even if consensual and between adults) was heavily regulated by law, the application of strict liability to statutory rape and the relatively minor criminal penalty of the time, made it a reasonable assumption that the actor bore the risk of criminal responsibility without intent. By contrast today, almost all consensual sex activities by those of legal age are not regulated by law, and the only remaining regulation on mutual adult conduct of this nature is in adultery laws, which are rarely enforced today. Concept number two involves the governmental and societal interest in preventing and deterring sexual activity with the immature. The importance of the community interest is undisputed: it is absolutely necessary to have an interest in protecting the underage from early sexual activity and exploitative relationships. But this interest could still be served without denying a defendant basic due process of law and the right to a reasonable mistake of age defense. A strict liability application to this crime is NOT the only way to accomplish the goals of the current law. We need only look to recent legislation around the country that has criminalized the transmission of the AIDS virus to determine that our law can be constructed in a way that both protects individual due process for a serious crime while simultaneously serving the purpose of protecting the public. These statutes require that a person be aware they have AIDS and in knowing this, they recklessly transmit the virus to others. It would be equally effective to apply the same reckless intent standard to statutory rape. Third, it can no longer be argued that the crime of statutory rape carries a small penalty. One night of what is believed to be legally consensual sex can turn into multiple charges for each sex act that takes place, with each charge carrying many years in prison if one of the partners later turns out to be under the age of consent. Lastly, the social stigma of a felony record and the title of sex offender or offender against children are real and are weighed heavily in the community by neighbors and potential employers. Fifty some odd years ago, the penalties were minimal, there was no social stigma attached to the law, nor was a 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 was the entire justification for a strict liability application. This is not the case today.
Further complicating the issue, the US Supreme Court has declined to hear specific challenges regarding the inability to mount a defense based on a reasonable mistake of age and the State courts have been left to interpret the occasional court reference or err on the premise that the US Supreme court has not directly ruled such a statute unconstitutional. This past January 2007, the NH Supreme Court ruled on this exact issue. (2005-883, STATE OF NH v. MARTIN HOLMES ) Justice Dalianis and the court declined to rule the statute unconstitutional, citing, in part, that the US Supreme Court has never ruled that strict liability application is unconstitutional for this crime, nor has it ever ruled that mistake of age is a valid defense. The NH Court goes on to say “By amending the statutory rape provision (in recent years), but failing to insert a mens rea or provide a reasonable mistake of age defense, the legislature has impliedly accepted our construction of that provision”. The opinion closes with the comment “While these legitimate policy concerns might support a reasonable mistake of age defense, we believe it is up to the legislature, not us, to create one.” Conversely, other State Supreme court challenges have resulted in the determination that a strict liability application to statutory rape is unconstitutional and thus have allowed the mistake of age defense. (Ballinger vs. TN) The State Supreme Court in TN recently ruled in 2001 that the crime of statutory rape, which was previously silent as to a mens rea requirement, required a degree of recklessness on the part of the actor. Other states have had similar court actions declare the unconstitutionality of the law, while others have enacted legislation preemptively to allow a reasonable mistake of age defense. There are still 33 states today that deny a defendant the right present a reasonable mistake of fact defense. It is also noteworthy that, while the US Supreme Court has failed to rule on the constitutionality of this issue, the US legislature has decided that a reasonable mistake of age is a valid defense for the specified statutory age group encompassing young teens. (Title 18, chp109A Sec 2243).
In addition, I would like to draw your attention to the NH state Bill of Rights, which is similar to the state bill of rights in every state. NH defines natural rights in Article 2, which states in part: All men have certain natural, essential and inherent rights, among which are, the enjoying and defending of life and liberty, acquiring, possessing and protecting property, and in a word, seeking happiness. Also Article 15 goes on to define the right of the accused. This reads, in relevant part, that “every subject shall have a right to produce ALL proofs that may be favorable to himself”. Ladies and gentlemen, we hold our fundamental rights to life, marriage, freedom of thought and religion to name a few, in such high regard that we will not compromise them. Do we not have this same fundamental right to defend ourselves against serious criminal prosecution? Is it possible that in America an innocent mind, which did not intend to commit harm; would be an irrelevant factor in a court of law? In a civilized legal system the concept of justice must adhere to due process and fair procedure. A defendant should only be severely punished for acts that are carried out with a guilty mind. The victim’s age is the only basis for a statutory rape case, as consent in a requisite number of days would render such a charge void. The knowledge of a victim’s age serves two legitimate purposes today: it establishes the victim’s legal inability to consent and it serves as sufficient notice to the defendant that the conduct is illegal. A defense must be allowed. Loss of liberty and character are at stake. A reasonable mistake as to age must be relevant to prevent punishing mentally innocent people.
I hope that I have compelled the reader to place himself before a court of law as a mentally innocent person, charged with a serious felony crime that carries a severe social stigma, with no available defense. To think that this situation could exist today in America is astounding and defies every fundamental principle we hold dear. The logic that a defendant’s assumption of risk replaces a requirement of conscious wrongdoing is inherently flawed (as is the case in the statutory rape law of most states). One can be reasonably mistaken for a number of reasons, such as: use of a fake I.D., driving without a license, being in an establishment that requires a minimum age for admittance., verbal misrepresentation of age and so on. The degree of ‘reasonableness’ depends on the age and maturity of the actor. What could be constituted as a reasonable mistake of age to an 18 year old would bear a different burden for a man in his thirties. Because our criminal laws are usually enacted on the basis of retribution and deterrence, knowledge of wrongdoing serves as the justification to punish those members of society who engage in illegal behavior. The strict liability protection of underage minors comes at the high cost of convicting potentially innocent and inadvertent offenders, who are then deprived of their freedom, their reputation and their right to a reasonable defense.
Laurie Peterson
100 Dunbar St.
Manchester, NH 03103
(603)641-0423
