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Vanderbilt University Law School




Suppose a state legislature enacted a law making any theft a crime punishable by twenty years' imprisonment. Within this law was a provision precluding an accused from introducing evidence that he unwittingly took property to which he was not entitled. Suppose further that after this law was enacted, an elderly woman hung her black coat in a restaurant's lobby and, upon leaving, mistakenly retrieved another's black coat.1 Under the hypothetical statute, her mistake could neither hinder the prosecution's case against her nor be asserted by her as a defense. By inadvertently taking another's coat from a crowded restaurant, the woman could and would be convicted and sentenced to a mandatory twenty years in prison.

Most would argue that such a statute would be egregious-it seems inconceivable that a legislature could turn an otherwise simple mistake into a top-level felony. However, most states have statutes or judicial rules with a similar effect in the area of sex crimes against children. 2 Nearly every jurisdiction prevents a person accused of engaging in sexual intercourse with a child from introducing evidence that he did so under the mistaken belief that his paramour was above the age of consent, yet there is hardly the public outcry of injustice that one would expect if the hypothetical theft statute were enacted. On one hand, this is completely understandable. Protecting our children is of fundamental importance to our society, and rape, as the Supreme Court has said, is "the ultimate violation of self."3 Sexual predators who prey on children are considered among the most deviant members of society. Most, if not all, people rest easier knowing that anyone who engages in such activities is locked away for extensive periods of time. Moreover, pedophiles are viewed as heinous and vicious precisely because they actively prey on and derive sexual pleasure from children. It is for these reasons that statutory rape and child rape statutes carry such severe penalties, and rightly so.

What happens, though, to the person who engages in sexual relations with a child only because he mistakenly believes his partner to be of age? Suppose, for instance, that a graduate student meets a girl at a college party. The girl enters the party with a group of friends, and seems comfortable in her surroundings; she even rebuffs some prospective suitors who attempt to dance with her and pour her a drink. The graduate student strikes up a conversation with this girl, and she tells him that she is a nineteen-year-old sophomore. Her physical appearance, dress, demeanor, and presence at such an event seem to confirm her representations. Shortly thereafter, the two engage in sexual intercourse. It is only then that the girl reveals that she is just shy of her thirteenth birthday. Under the law applicable in all but a very few jurisdictions, this graduate student would face a jail sentence of twenty years and would be unable to proffer any evidence of his mistake of the girl's age.

While there is little dispute that the situation just described is implausible, it is not impossible. In fact, recent studies have shown that the onset of puberty occurs at an increasingly early age in girls and, according to an article published by the American Academy of Pediatrics, it is not abnormal for girls to enter puberty as early as age six or seven.4 The fact that a remote possibility is just that-a possibility-begs the question: is it unconstitutional for states to preclude a mistake of age defense in child rape cases?

This Note answers this question in the affirmative. Indeed, its goal is to show that statutory preclusion of the mistake of age defense for a man accused of child rape is just as unconstitutional as the hypothetical preclusion of the mistake of fact defense for the errant coat thief. Although sexual intercourse with a child creates much more harm to both the victim and society than does a stolen coat, this Note attempts to demonstrate that disregard of an accused's criminal intent in committing a crime which carries severe penalties is antithetical to Anglo-American criminal jurisprudence, to a person's constitutional rights of due process, and to a person's constitutional right to present a defense.

The scope of this Note's proposal is extremely limited. It offers an accused the ability to present evidence of an honest and reasonable mistake of age, but also maintains a presumption of criminal intent. This presumption could only be overcome by persuasive evidence of the mistake. The policy reasons for precluding the defense, rooted largely in moral grounds and notions of child welfare, are in no way undermined by allowing an accused to present his defense and then leaving the credibility and reasonableness of such a mistake to the jury. This Note's goal is not to discount the irreparable harm inflicted upon victim and society when a child is sexually violated, but rather to advance the notion that the denial of a person's liberty for committing an act for which he is mentally blameless is just as repugnant as the act for which he is condemned.

After providing an overview of the terminology involved, Part II of this Note will trace the history of the common law rule of imposing criminal liability only upon a showing that the defendant acted with a culpable "guilty mind." It will then discuss the rationales for the three narrow exceptions to this requirement and analyze the implications and influence of the American Law Institute's Model Penal Code and the California Supreme Court's landmark decision of People v. Hernandez.

After arguing that the Constitution requires that an accused can be convicted only upon a showing of the concurrence of the actus reus with a requisite mens rea for every element of an offense, Part III will discuss the current availability of the mistake of age defense in child rape prosecutions across American jurisdictions. While a majority of jurisdictions allow the defense in some situations, only a handful of jurisdictions allow it in all child rape cases. Part III will then critique the rationales for strict liability crimes as applied to child rape offenses. It will then discuss and assess the validity of several proposed age-dependent defenses, 7 ultimately concluding that such bifurcated defenses are inconsistent with arguments against strict criminal liability. Lastly, as a transition into this Note's proposal, Part III will analyze the Alaska Supreme Court's decisions of State v. Guest8 and State v. Fremgen,9 which held that denial of the mistake of age defense is an unconstitutional violation of a defendant's due process rights.

Part IV provides a set of proposed amendments to current rape of a child and mistake of fact statutes. These amendments call for (1) attaching negligence to the age element of the rape of a child statute; (2) allowing an honest and reasonable mistake of age defense, but requiring it be proven by clear and convincing evidence; and (3) allowing, as a mitigating factor, a mistake of age defense where the accused believed he was committing statutory rape. Part IV will attempt to show that this proposal eliminates the inconsistency of bifurcated age-dependent models and ensures a criminal defendant's due process rights without forsaking the policy of protecting children from sexual predators.

Since Tennessee has adopted a derivation of the Model Penal Code's age-dependent approach, which is the most common statutory scheme today, the Tennessee mistake of age provision will be used as an example throughout this Note. 10 Although portions of this Note will deal with Tennessee-specific statutes and case law, the underlying policies are by no means limited to that state. Indeed, the goal of this Note is to demonstrate that the mistake of age defense is needed not only to protect an accused's constitutional rights, but also to preserve our Anglo-American criminal jurisprudential ethos that crime is a "compound concept" of a bad act and a "vicious will."'11

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