Fleming, Mark Alexander
2014 Tex. Crim. App. LEXIS 1959
| Tex. Crim. App. | 2014Background
- Fleming charged with four counts of aggravated sexual assault of a child under Texas Penal Code §22.021(a)(1)(B)(iii),(2)(B).
- He moved to quash the indictment arguing no mens rea as to victim’s age and no mistake-of-age defense; trial court denied.
- At trial Fleming testified he believed KM was 22; KM was actually 13; they dated and had sex on multiple occasions.
- Fleming and the State reached a ten-year probated sentence to avoid mistrial; he appealed the denial of the motion to quash.
- On remand, the court of appeals upheld the statute against federal due process claims; this Court granted discretionary review to address state constitutional claims and due-process challenges.
- The Court affirms the court of appeals, holding Penal Code §22.021 constitutional for lack of required mens rea about victim’s age and for not recognizing a mistake-of-age defense; concurrence and dissent discuss Lawrence v. Texas and policy considerations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does §22.021 require knowledge of victim’s age (mens rea) | Fleming argues lack of mens rea makes statute unconstitutional | State argues no such mens rea required to protect children | Statute does not require mens rea about victim’s age; constitutional |
| Is there a constitutional right to a mistake-of-age defense | Fleming seeks affirmative defense based on reasonable belief victim older than 17 | Legislature intended to protect children; no mistake-of-age defense | No constitutional right to mistake-of-age defense; affirmed |
| Does Lawrence v. Texas require a mistake-of-age defense for child sex offenses | Lawrence extends private-sex liberty to adults; may require defense | Lawrence limited to adults and private consensual sex; not applicable to minors | Lawrence does not compel a mistake-of-age defense for underage victims; majority follows |
| Impact of emerging technology on due process and defense viability | Technology could alter age misrepresentation and require defenses | In-person contact with minor; tech does not negate culpability | Emerging tech not dispositive; in-person contact still places duty on adult to ascertain age |
| Remedy if due process requires a mistake-of-age defense | Defense should be submitted to finder of fact | Legislature should provide defense; but need for constitutional remedy | Remand should allow presentation of a constitutionally required mistake-of-age defense in appropriate cases |
Key Cases Cited
- Morissette v. United States, 342 U.S. 246 (U.S. 1952) (Mercury exception to mens rea in age-determinative offenses)
- United States v. X-Citement Video, Inc., 513 U.S. 64 (U.S. 1994) (Morissette exception for age in statutory rape; personal contact with minor matters)
- Lawrence v. Texas, 539 U.S. 558 (U.S. 2003) (Overruled Hardwick; privacy rights for consenting adults; limits on applying to minors)
- Lambert v. California, 355 U.S. 225 (U.S. 1938) (Due process notice requirement for criminal liability)
- Powell v. Texas, 392 U.S. 514 (U.S. 1968) (Discussion of mens rea doctrine and liability)
- Hernandez v. California, 61 Cal.2d 529 (Cal. 1964) (Mistake-of-age defense analysis in California statutory rape)
- Garnett v. State, 332 Md. 571 (Md. 1993) (MRD discussion on mental disability and culpability in sex offenses)