*1 сar. It was also Tyson’s on Jane were identified gerprints arresting blood was discovered Tyson’s determined sock, at the time of his and shoe leg, on Baker’s officers immediate- clothing of Lawrence’s inspection an Upon arrest. with the Together was found. shooting, no blood after the ly testi- stipulated, eyewitness Faust and the testimony of Scott Adam, evidence was sufficient mony Tyson’s grandson, fact” that Baker a “rational trier of support finding by degree. in the first principal was a Appropriateness of the Death Sentence VI. trial court’s supports the
Finally, the evidence outweighed any circumstances finding aggravating Baker’s circumstances. also conclude that mitigating We of pas under the influence imposed death sentence was not (1957, sion, arbitrary other factor. Md.Code prejudice, 414(e). 27, § Art. Repl.Vol., Cum.Supp.), reasons, death imposition trial court’s For these appropriate sentence was under the law. HAR- OF THE CIRCUIT COURT FOR
JUDGMENT FORD COUNTY AFFIRMED.
STATE Term, Sept. No. 3 1993. Maryland. Appeals
Court Nov. *2 Braudes, R. E. (Stephen
Michael Asst. Public Defender Defender) Harris, brief, Baltimore, for appel- Public both on *3 lant. (J. Bosse, Curran, Jr., Atty.
Ann N. Asst. Gen. Joseph Atty. Gen.), brief, Baltimore, on for appellee. both MURPHY, C.J., ELDRIDGE, before
Argued RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and BELL, ROBERT M. JJ.
MURPHY, Judge. Chief Maryland’s “statutory rape” prohibiting law sexual inter course with an in underage person Maryland is codified Code (1957, Repl.Vol.) Art. in full: which reads degree
“Second rape. (a) What constitutes. —A is person guilty rape the if degree person second the engages vaginal intercourse person: another (1) force or By against threat of force the will and person; without the consent of the other or (2) defective, is mentally mentally incapacitated, Who or physically helpless, performing and the the act person reasonably knows or should the person know other is men- defective, tally mentally incapacitated, physically or help- less; or years perform- and the person Who under years act is least four older than victim.
ing the (b) violating the of this Penalty. Any person provisions — felony subject guilty upon conviction section years.” than 20 period for a of not more imprisonment (a)(3) statutory current of a represents Subsection version codification of provision dating comprehensive to the first back we Legislature law the 1809.1 Now consid- statute, must prove er present whether under State was complaining younger a defendant knew witness and, question, in a whether it was error at trial than related told, believed, evidence that he had been exclude years she old. was
I At young Lennard is a retarded man. Raymond Garnett in question years of the incident he was 20 old. He time I.Q. guidance Montgom- has of 52. His counselor from the an Parker, system, Cynthia ery County public school described who read mildly third-grade him as a retarded on level, and interacted level, 5th-grade did arithmetic on level with others at school at the of someone socially Raymond Parker attended age. Ms. added classes and for at least one of time special period education when was afraid to return school was educated home he due Because he could under- taunting. to his classmates’ *4 him, failed to jobs given complete stand the duties of the he to assignments; way he lost his work. vocational sometimes pass of functional Raymond any As unable the State’s was any person carnally abuse 1. "If shall know and woman-child under years, age every knowledge carnal shall be deemed of ten such shall, offender, thereof, being felony, convicted discretion court, by hanging undergo suffer death ... or a confinement in penitentiary period year less than one nor more than for twenty-one years.” compiled Dorsey’s in 1 Ch. Sec. 7th. Statutory Law Law the State General Public and Public Local age Maryland 575 The minimum child was raised from years Chapter years 410 of the Acts of 1890. tests required graduation, only he received a certificate of attendance rather than high-school diploma.
In November or December a friend introduced Ray- Frazier, 13; mond to Erica then aged the two subsequently talked occasionally by telephone. 28, 1991, On February Raymond, home, apparently wishing to call for a ride ap- proached the girl’s house at about nine o’clock in evening. window, opened Erica her bedroom through Raymond which entered; he just testified that “she told me to get a ladder and up talked, climb her window.” The two and later engaged Raymond sexual intercourse. left at about 4:30 a.m. the following morning. 19, 1991, On gave November Erica birth to a baby, Raymond of which is the biological father.
Raymond was tried before the Montgom- Circuit Court for J.) ery (Miller, County on one count of second degree rape 463(a)(3) under sexual proscribing intercourse between a under 14 and another at least four years older than the trial, complainant. At proffered defense twice evidence to the effect that Erica herself and her friends previously had old, told Raymond that she was 16 years and that he had acted with that belief. The trial court excluded such evidence as immaterial, explaining: only requirements
“Under two as relate to this intercourse, case are vaginal that there was ... [and] Ms. Frazier 14 years was under ... Mr. Garnett was years at least four older than she.
“In the Court’s opinion, consent is no defense to this charge. The victim’s representation as to her belief, existed, if defendant’s that she was not under age, what amounts to what might otherwise be termed a good defense, faith inis fact no defense to what amount[s] statutory rape.
“It is in the opinion Court’s a strict liability offense.” Raymond court found guilty. It sentenced him to a term years prison, five suspended imposed the sentence and probation, five and ordered pay that he restitution to Erica and the Frazier family. Raymond noted an appeal; we *5 prior appellate by to intermediate review
granted certiorari important issue Special Court of consider the Appeals case, 601, 620 in A.2d 940. presented
II Assembly of the Legislative In Council General Rape on and Related Of Special established Committee fenses, complete Maryland revision of law proposed which generally and sex crimes. J. rape other pertaining Pitcher, Rape and Other Sexual Law William Reform Offense (1977). 1976-1977, 7 Based in U.Balt.L.Rev. Maryland work, introduced, Bill was Senate on Committee’s amended, eh. 573 the Acts May and enacted on as part, repealed rape, common law crime of 1976. knowledge of carnal of under statutory prohibition the former replaced them with the girls, and other related crimes degrees of array delineating rape of criminal two current laws Report оf sexual offenses. See the 1976 degrees and four 358, at 1-5 Proceedings Senate Judicial Committee on S.B. 462-464C; 27, §§ Code, Art. see also Richard P. Gilbert & Jr., Moylan, Maryland Criminal Law: Practice Charles E. 65-66, 68-81 and Procedure statutory the former legislation rape
The new reformulated of a by introducing four-year the element difference law underage complainant. Report accused and the between the Committee, As Proceedings Judicial Senate by ch. 573 of the Acts sexual originally enacted by under 14 an actor than four intercourse with a more first years rape degree, older was classified Legis- The penalty imprisonment. maximum of life carried a lature, the Acts of reduced the crime to ch. 292 of degree a maximum sentence rape carrying the second These reforms of 1976 and created the prison. 463(a)(3). §in law embodied now 463(a)(3) set expressly requirement does not forth Section mind, have acted with a criminal state of that the accused statute, by design, insists that mens rea. State offense, and that its essential elements defines a strict *6 were met in the instant case when Raymond, age engaged Erica, in vaginal intercourse with girl under and more 4 years junior. than his Raymond replies that the criminal law exists to assess and punish morally culpable behavior. He says such culpability was absent here. He asks us either to (a)(3) mens rea engraft onto subsection an implicit require- ment, or to an recognize affirmative defense reasonable mistake as to the complainant’s age. Raymond argues that it unjust, under the circumstances of this case which led him lawful, to think his conduct to brand him a rapist. felon and
Ill Raymond asserts that the events of this case were inconsis- tent with the exploitation criminal sexual by a minor an observed, adult. As earlier Raymond entered Erica’s bed- invitation; room at the girl’s she him directed to use a ladder to reach her window. They engaged voluntarily sexual They intercourse.. remained together the room for more than Raymond seven hours before departed at dawn. With an I.Q. of Raymond functioned at approximately the same Erica; level as 13-year-old mentally he was an adolescent in an adult’s body. Arguаbly, Raymond’s had chronological age, matched his socio-intellectual age, about he and Erica would have fallen well within the four-year age differ- ence obviating statute, a violation of the and Raymond would not have been charged with crime at all. precise legal issue here rests on Raymond’s
unsuccessful efforts to introduce into testimony evidence Erica and her friends old, had told him she was 16 years relations, of consent to sexual and that he believed them. Thus the trial court did not him permit raise defense of reasonable age, by mistake Erica’s which Raymond defense would have asserted that he acted innocently without a crimi law, nal At design. common a crime occurred only upon concurrence of an individual’s act and his state of guilty mind. State, Dawkins v. 638, 643, 547 A.2d regard, this it is well understood that generally there are two crime, guilty act and every actus reus components accompanying mind or mental state guilty or the the mens rea an have acted requirement accused act. The a forbidden jurispru- an axiom criminal mental state culpable Court, Supreme Justice Writing for the United States dence. Robert Jackson observed: only amount to a crime injury
“The that an can contention or transient provincial inflicted intention no when systems persistent It universal and mature notion. is as human a conse- in freedom of the will and of law as belief duty individual to choose ability and of-the normal quent evil. good and between
[*]
*7
#
[*]
[*]
[*]
[*]
only
constituted
compound concept, generally
as a
“Crime
an evil-
evil-meaning
of an
mind with
from a concurrence
hand,
to an intense individualism and
doing
congenial
was
early
root
American soil.”
deep
took
States,
246, 250-252,
S.Ct.
Morissette v. United
U.S.
243-244,
“ unaccompanied by ‘It is inefficacious because conduct an it criminal does not mark making
awareness of the factors subjected punishment the actor as one who needs to be him behaving similarly in order to deter or others from future, nor him out as a single socially does incapacitated individual who needs to be or dangerous unjust subjected It the actor is reformed. because stigma being morally of a criminal conviction without on either a blameworthy. Consequently, preventive theory retributive of criminal the criminal punishment, ” inappropriate sanction is in the absence of mens rea.’ Scott, Packer, quoting LaFave & Herbert L. Court, Mens Rea and the Supreme Sup.Ct.Rev. Singer
Dean has articulated other weaknesses of strict 1) liability theory: government extensive civil regula- *8 tions and strict in tort liability achieve the same deterrent 2) effect; judicial efficiency of minor offenses dispatching inquiry equally without an into mens rea is attained by them, decriminalizing hearing regulatory and such cases a 3) forum; or administrative penalties imposed the small for liability most strict offenses to in a oblige public engage pernicious game of “real” distinguishing crime from some 4) crime; form of liability may lesser some strict laws result 5) from drafting; liability careless strict dilutes the moral force that the criminal law has historically Singer, carried. at supra, 403-404. The author conсludes that “the blameworthiness; predicate for all criminal it liability is is the stigma finding guilt distinguishes social which a of carries that predi- from all other sanctions. If the [penalty] the criminal removed, law adrift.” Id. at 404- the criminal is set cate liability of the disfavor which strict Conscious resides, minimum generally Penal Code as a the Model states of a that a is not requirement culpability guilty of reckless- purposely, knowingly, criminal offense unless he acts i.e., Model degree or with some mens rea. ly, negligently, (Official § 2.02 Draft and Revised Comments Penal Code 1980). ignorance for a defense of generally The Code allows § mens Id. at 2.04. The or mistake of fact rea. negating liability for generally Model strict recognizes Penal Code “violations,” only wrongs subject defined as offenses deemed conviction, fine, forfeiture, penalty upon or other civil to 1.04, §§ at 2.05.2 any legal disability. rise to Id. giving as similarly statutory rape The disapprove commentators arguments crime. In addition to the discussed liability a strict above, often statutory rape prosecutions observe that they age judgment even when the defendant’s proceed her sexual complainant appearance, is warranted her misrepresentations, the defen- her verbal sophistication, age. Larry true attempts dant’s careful to ascertain her A Myers, Age: Reasonable Mistake Needed W. Defense Voluntary Statutory Rape, Mich.L.Rev. teen-ager lacks the fea- sexually intercourse with mature abnormality, exploitation, danger or psychic physical tures statutory respect rape, Penal Code 2. With law of Model general policy against compromise with its strict strikes a prohibits ignorance a reasonable crimes. The Code the defense of ten, age age of allows mistake when the victim is below the but higher stipulated in offense is than ten. when the critical Code, 213.1, 213.6(1). §§ The Model drafters of Penal implicitly Code concede that sexual with a child of such conduct would, least, very spring criminally youth extreme from negligent of mind. available of reasonable mistake of state defense requires complainants older than ten the defendant not 213.6, negligence. have аcted out of criminal See the Comment to *9 415-416. 119-122.3 conduct with children. Id. at accompanies such Comment, A Statutory Rape: Tonry, also Richard A. (1965); McGillicuddy, 26 La.L.Rev. 105 Michael Critique, Note, Statutory to Age Criminal Law: Mistake of Defense (1966); Pieragostini, Dennis L. Rape, U.Fla.L.Rev. Note, Statutory Mistake as to Age a, Reasonable Defense — Code, 2 under the New Penal Conn.L.Rev. Rape (statute Note, Vance, Kelly since State v. Elton: superseded); Recognize Statutory Rape, The Failure to Defense (case subsequently upon Utah L.Rev. 437 reversed reconsider- ation); Reiss, Note, Benjamin Require- L. Alaska’s Mens Rea (1992). Alaska L.Rev. 377 But Statutory Rape, ments Olsen, A Statutory Rape: Critique see Frances Feminist 63 Tex.L.Rev. 401-413 Rights Analysis, sub-parts underlying Two of the rationale strict criminal liability require analysis point. Statutory rape further this justified laws are often on the “lesser legal wrong” theory or the “moral wrong” theory; by reasoning, such the defendant acting without mens rea nonetheless deserves punishment for crime, fornication, having committed a lesser or for having teachings violated moral outside of prohibit marriage. sex Scott, 410-410; supra, See LaFave & at 127- Myers, supra, 129. Maryland against has no law fornication. It is not a Moreover, act, crime in this state. the criminalization of an mind, performed guilty without a immoral deemed some community uneasily subjective members of the rests on shifting norms. what “[D]etermining precisely the ‘communi ty actually easy ethic’ not an task in a heterogeneous [is] society public which our pronouncements morality about often are not with our conduct.” synonymous private LaFave Scott, & at 411. The drafters of the Model Penal Code remarked: actor reasonably partner who believes that his
“[T]he above that age culpability respect lacks [of consent] the factor deemed critical to him liability. Punishing any- notes, too, Myers European upholds law mistake of as a rape. Id. statutory defense to and n. 12. *10 582 would have been
way because his intended conduct simply to postu- as he them be supposed immoral under facts criminality immorality lates a that is relation between The grounds. on both and normative descriptive inaccurate community penal try aspects law does not to enforce all to do would any thoroughgoing attempt so morality, far into the prospect sphere extend the criminal sanctions a too for liberty demanding of individual and create regime among all save the best us.” Id., 213.6, acknowledge § that it Comment to at We here Raymond’s what intellectual and social is uncertain to extent ability comprehend have his may impaired retardation morality sexual case. imperatives IV legislatures permitting of 17 have enacted laws a states in cases mistake defense in some form of sexual age In underage Kentucky, offenses the accused persons. prove exculpation that he did not know the facts may Ky.Rev.Stat. complainant’s age. conditions relevant may § In Washington, Ann. 510.030 the defendant complainant believed the to be of reasonably assert that he alleged on the victim’s own declarations. age certain based (1988, § In Cum.Supp.) Ann. Wash.Rev.Code 9A.44.030 states, is available in instances where some defense level, rises complainant’s age statutorily prescribed above complainant falls but is not available when the below (1983) 18, § defining E.g. Pa.Cons.Stat.Ann. tit. age. § 14); Ann. (defining age critical W.Va.Code 61-8B-12 (1992 Repl.Vol.) subject critical defense (defining (1990 standard); § Or.Rev.Stat.Ann. 163.325 recklessness 16).4 states, critical In other Repl.Vol.) (defining 13-1407(B) (1989, Cum.Supp.) § 4. See Ariz.Rev.Stat.Ann. also 14); 14); (1987) (age (age § Ann. Ark.Code 5-14—102 Col.Rev.Stat. 15); (1973, (age Repl.Vol.) § § Ind'.Code Ann. 35-42-4- 18-3-406 14); (1985 12); (1979) Repl.Vol.) (age (age § Mo.Ann.Stat. 566.020 45-5-511(1) 14); (age § Mont.Code Ann. N.D.Cent.Code 12.1- of the sex severity on depends the defense availability of §§ 609.- E.g. Minn.Stat.Ann. to the accused. charged offense (defense available (1987, Cum.Supp.) 344-609.345 fourth-degree third-degree under charges certain conduct).5 sexual have of four states addition, courts highest appellate required by implication statutory rape laws
determined
In the
age.
complainant’s
rea as to
an element of mens
Hernandez,
61 Cal.2d
People
case of
landmark
(1964),
Supreme
the California
“[I]f of intercourse, beyond age to be believing partner his belief, where is consent, for such grounds with reasonable has not he such circumstances his criminal intent? subjectively he has taken risk. Instead consciously himself on reasonable by satisfying the risk eliminated 15); (1991 (age Wyo.Stat.Ann. § Supp.) (age 6-2-308 20-01.1 12). 720, 5/12-17(b) (1993) (defense § available Ill.Comp.Stat. ch.
5. See also abuse); tit. 17- Me.Rev.Stat.Ann. as criminal sexual for offenses defined (available A, (1983, charge Cum.Supp.) for of sexual § 254.2 (1953, minors); Repl. Ann. 2907.04 Ohio Rev.Code abuse minors). Vol.) (available charge corruption be If it crime cannot committed. occurs evidence mislead, realistically he has been we cannot conclude reason the intent with which he undertook for such alone suddenly act more heinous.... courts [T]he becomes uniformly satisfactorily the nature of explain have failed to in good intent in the one who the criminal mind of present a lawful engag- faith believes he has obtained consent before prohibited in the act.” ing
Id., P.2d at Cal.Rptr. charge Alaska has that a Supreme
The Court of held a defense statutory rape legally unsupportable unless Guest, mistake of allowed. v. 583 P.2d reasonable State 1978). (Alaska 836,- Supreme The Court of Utah 838-839 (cid:127) unlawful sexual intercourse statute to applicable construed proved mean that a conviction could not result unless the state offense, a criminal state of mind as to each element of Elton, victim’s 680 P.2d including age. State (Utah 1984) (Utah Criminal since amended to Code disallow intercourse).6 defense to unlawful sexual mistake that a defen- Court of New Mexico determined Supreme have been at trial to a defense permitted present dant should told partner consensual sex him she was his *12 others, him he had been confirmed to and that had that this State, 111 under that belief. Perez v. N.M. acted mistaken (1990). 249, states, 160, P.2d of the 803 250-251 Two-fifths therefore, recognize statutory now the defense in cases of sexual offenses.
V
clear, however,
it sufficiently
Maryland’s
We think
liability
defines a strict
degree rape
second
statute
offense
6. Both the California Penal Code and
Utah Criminal Code included
requiring
act
provisions
a concurrence of
and intent
to constitute a
provision
The Utah
Code further contained a
authoriz
crime.
Criminal
ing
clearly
as such.
convictions
strict
offenses
defined
363,
675; Elton,
Hernandez,
supra,
Cal.Rptr.
39
Second, § 463 drafting history an examination of the of during Maryland’s sexual laws the revision offense reveals the was viewed as one of statute strict from amendment inception throughout process. its the Bill As 358 defined a sexual originally proposed, Senate first a act with degree person offense in the sex committed years less an actor four or more years than old older.. Report Proceedings the Senate Judicial Com- Proceedings mittee at 1-2. The Senate Judicial on S.B. then a series of amendments to the bill. Committee offered them, stipulated # 13 Among age Amendment reduced from less to 12 or less. 1976 Senate victim than Journal, # provision at 1363. Amendment 16 then added a act degree a sexual offense the second as a sex defining age, “under 14 which another act knows should performing sexual know.” Journal, at These initial suggest Senate 1364. amendments that, life, very stages Legisla- at the earliest the bill’s ture some form of strict criminal liabili- distinguished between applicable to where victim was 12 or ty, offenses . under, and a lesser offense with mens rea requirement when 14. ages the victim was between the of 12 and passed by Senate Bill 358 its amended form was 11,1976. Journal, at Senate on March 1976 Senate Committee, Judiciary however, pro- House Dеlegates’ then rejected of its It amend- posed changes own. Senate ments, without mens rea defined an offense of rape,
587 with under performed for sexual acts someone requirement, Journal, The at 3686.7 Senate 14. 1976 House of age law. S.B. 358 became in House amendments and concurred Journal, 3429; Journal, 3761; 1976 House Senate 1976 Legislature explicit- Maryland, of 1536. Thus 1976 Acts notion raised, considered, jettisoned any explicitly and then ly in respect complainant’s rea to the of a mens element 463(a)(3). the basis of current enacting the law that formed action, inevitably must legislative we of such light its liability strict on imposes law conclude that the current violators. of the traditional view is consistent with interpretation
This
protect
liability
designed
a strict
crime
statutory rape as
by
exploitation
sexual
dangers
from the
of
persons
young
and,
of
in the case
adults,
chastity,
injury,
of
physical
loss
County Superi
M. v.
See Michael
Sonoma
girls, pregnancy.
1200, 1204-05,
Court,
464, 470,
450 U.S.
S.Ct.
or
(1981);
Eidson, Note,
Constitutionality
The
Rita
L.Ed.2d
Laws,
L.Rev.
760-761
Statutory
27 UCLA
Rape
impose
which
strict
of states retain statutes
majority
The
We
underage complainants.
for sexual acts with
liability
earlier,
provid
among
even
those states
again,
observe
instances, the de
defense in some
ing
mistake-of-age
for a
14 years
partner
available where the sex
fense often
was
less;
in the instant case
complaining
old or
witness
courts,
the Court
including
only
majority
appellate
13. The
statutory rape to be
strict
Appeals, have held
Special
State,
241 A.2d
Md.App.
Eggleston
crime.
Annotation,
(1968);
compilation
Shipley,
see the
W.E.
asAge
Lack
as to Victim’s
Mistake or
Information
Defense
(1966,
Supp.).
JUDGMENT WITH COSTS. ELDRIDGE, Judge, dissenting: majority Both the Bell’s opinion Judge dissenting opin- whether, question ion view the this case to be on the one hand, (1957, Maryland Code Art. Repl.Vol.), 463(a)(3), § entirely a strict liability statute without mens rea or, hand, on requirement the other contains the requirement that the defendant knew that person whom he or she was sexual having relations was under years age. majority
The takes the that position the statute defines an offense and has no mens rea require- entirely strict ment majority whatsoever. The indicates that the defendant’s belief, “knowledge, or other state of wholly mind” is immateri- al. majority opinion The at one point states: “We acknowl- edge here that it is uncertain what Raymond’s extent intellectual and social retardation may impaired have his ability comprehend imperatives morality of sexual in any Nevertheless, case.” according majority, to the it was permis- sible judge for the trial to have precluded exploration into Raymond’s knowledge comprehension because the offense is entirely liability. one of strict dissent, however, that,
Judge argues Bell’s under the due process clauses the Fourteenth Amendment and the Mary- land of Rights, any Declaration “defendant may defend on the basis that he was age prosecutrix.” mistaken as to the view, requirement mens rea my concerning issue 463(a)(3) one of to a between § is not limited choice Judge opinions. Bell’s majority’s set forth extremes ordinary an defendant’s mistake majority I agree with is not a defense to partner of his or her sexual about the 463(a)(3). § I am per- under Furthermore prosecution suaded, time, that either the federal or present least at the honest belief that defendant’s require state constitutions a defense.1 was above the of consent be person the other however, no mean, the statute contains This does not at all. requirement mеns rea 463(a)(3), majori- in the set forth legislative history
The
rejected
of Delegates
demonstrates that the House
ty opinion,
hav-
person,
that an older
proposed requirement
the Senate’s
age,
know
sexual relations with another under
ing
was
14. The
the other
under
or should know that
ultimately adopted. From
Delegates’
House of
version was
this,
version was
majority concludes that
the enacted
majority’s
mens rea
conclusion
requirement.”
“without a
necessarily
Although
Assembly
follow.
General
does not
*16
knowledge
it did
decree
rejected
specific
requirement,
one
knowledge
a defendant’s
concerning
that
and all evidence
was immaterial.
comprehension
liability
“the purpose
offenses where
pure
There are
strict
is to
than
behavior”
regulate
punish
of the
rather
penalty
“liability
imposed regardless
and where criminal
mind,”
State,
313 Md.
defendant’s state of
Dawkins
(1988).
commonly involve
“do intentionally engage judgments persons who legislative or occupy peculiar activities and some distinctive certain are to be held accountable for the occur- position of control ” consequences.’ rence of certain Law, Scott, Jr., A. ch. W. LaFave & Substantive Criminal 3.8(c), (1986), Wasserstrom, § Criminal quoting Strict See also P. Robin Liability, Stan.L.Rev. (1984) (“If 108(b), son, § ch. at 535 Defenses, Criminal Law ... reasonable mistake as to the victim’s is disallowed [tjhere ”) is, liability respect ... strict with to that element added). (emphasis history nor the statutory language legislative
Neither the 463(a)(3), § of the other of the 1976 and 1977 provisions statutes, Assembly sexual offense indicate the General 463(a)(3) liability § to define a strict offense pure intended liability imposed regardless where criminal of the defen- penalty provision dant’s mental state. The for a violation 463(a)(3), namely making felony punishable by the offense a (§ 463(b)), years imprisonment strong a maximum of 20 Assembly that the did not intend to create a evidence General offense. pure strict person’s
In situation an older typical involving engaging activities with a teenager consensual sexual below consent, Assembly and the scenario which the General 463(a)(3), 464A(a)(3), §§ it enacted likely contemplated when 464B(a)(3), 4640(a)(3), 4640(a)(2), and the defendant knows engaging activity and intends that he or she is sexual addition, the defendant knows that young person. *17 commentator, pointed by argued "it be if 2. As out one can that strict liability statutes are to be characterized as 'strict' because of their mind, permit inquiry failure to as to the defendant’s state of this description appropriately, is too broad. More each criminal statute ” respects examined to determine in what it is ‘strict.’ Wasser- must be strom, (1960). Liability, 12 Stan.L.Rev. Strict Criminal by large improper is as immoral activity regarded and/or is that Moreover, aware the defendant society. of segments Al- are is ineffective. by young who too persons “consent” may honestly the but defendant particular a case though believe, appearances, of or mistakenly representations because consent, ordinary of the that other is above person a be that there is ought case is or aware defendant such consent. is above the of not young risk that out, view [is] “the traditional opinion points As majority so do engage young persons in sex with that those who are under- assuming partners risk that their their peril, ” knowl- It to me that the above-mentioned age .... seems factors, ability appreciate mental edge particularly risk, rea of the a the mem taking constitute one 464A(a)(3), 464B(a)(3), 463(a)(3), §§ by offenses defined 4640(a)(3). 4640(a)(2) enacting provisions, these appre- is able to Assembly assumed a defendant General intentionally knowingly engag- risk involved сiate the person. There no young in sexual activities with ing Assembly that criminal that the General intended indication who, or her mental attach to one because his appreciate that risk. impairment, was unable to the Legislature It unreasonable to assume that intended 463(a)(3), under for one to be convicted under or activity underage per proscribing other statutes sexual sons, her state. regardless Suppose, his or mental an but Raymond I.Q. Garnett had had example, rather, severely mentally more as was the had been retarded Hosp., involved in Gen. young Montgomery woman Wentzel denied, A.2d cert. U.S. 790, 74 L.Ed.2d retarded mentally S.Ct. I.Q. physiologically had was person Wentzel an child, but was unable to capable bearing comprehend intercourse, even difference act of sexual to understand the disabled, having If so reached between sexes. someone age, had “consensual” sexual Raymond’s chronological then years person younger age, than fourteen intercourse with Art. I she have violated do not believe that he or would *18 463(a)(3). 463(a)(3), §§ 464A(a)(3), Under the view that 464B(a)(3), etc., pure define strict liability any offenses without regard state, for the defendant’s mental presumably a 20 year old, passes who out because of drinking many too alcoholic would beverages, guilty be of a sexual if year offense a 13 old engages various sexual activities with the 20 year old while the latter is I unconscious. cannot that imagine the General Assembly any intended such result.
An impaired mental condition may show the absence of
rea,
See,
mens
depending upon
circumstances.
e.g., Sim-
State,
mons v.
313 Md.
39 n.
542 A.2d
1261 n. 3
(1988);
State,
Hoey
473, 494-495,
The majority points out that the triаl court would not allow testimony Erica and her friends had told the defendant court, however, she was 16 old. The trial went further. The court would not allow the defendant to testify concerning knowledge. his importantly, More the trial judge 463(a)(3) took the position that the offense proscribed by § “a strict liability offense” and that only requirements for conviction were that “the defendant had sexual intercourse Frazier, with Erica that at that time she 13 years age, was at that time [and] the defendant was more than 4 years older than she. only These are the requirements the State prove need beyond a reasonable doubt.” The trial court’s position that the offense lacked mens rea requirement, and that the defendant’s mental immaterial, state was wholly was, view, in my erroneous.
I would reverse and remand for a new trial. BELL, Judge, dissenting.
ROBERT M. ... so fla- legislation may “It be to conceive possible may that the courts right, with natural grantly conflict unwarranted, no of the consti- though clause set it aside as But be it. the cases must prohibiting tution can be found *19 indeed; interposition occur and do the they rare whenever of rest such foundations upon the veto will judicial of room be no for hesitation.” that there can little or necessity Mens Rea: III—The Resurgence Singer, Richard G. of 337, 30 Liability, B.C.L.Rev. Rise and Fall Strict Criminal of (1870). Clottu, 409, Ind. 410-11 (1989), State v. 33 quoting 368 legislative Maryland of dispute history I do that not (1957, 27, may Art. be read Repl.Vol.), 1992 section 463 Code (a)(3)1 interpretation subsection support majority’s to majority liability to be statute. See was intended a strict disagree public I in the at 585. Nor do opinion sexually child from the adverse protect interest to naive emotional, of sexual relations. psychological effects physical, in believe, however, Assembly, every I not General do case, and no matter how whatever the nature crime to penalty, subject harsh the can defendant strict potential law, hold, liability. To as a matter that section 463(a)(3)2 not that a defendant require prove does State Ann., part: Maryland provides, pertinent Code Art in (a) person guilty rape in the second What constitutes.—A degree person with engages vaginal if the in intercourse another person: person years performing the act Who is under 14 and the years
is at least four
older than the victim.
(b)
person
provisions
this
Penalty. Any
violating the
section
—
subject
felony
upon
imprisonment for
guilty of a
conviction is
years.
period
of not more than
provisions
Maryland
offenses statutes
2. There are other
sexual
(1957,
463(a)(3).
purpose
Md.Code
similar in
and effect
section
464A, 464B,
Repl.Vol.)
specify
§§
do
a mental
and 464C also
not
rationale,
therefore,
be,
and,
majority's
state
would also
under the
strict
statutory
second
crimes. Sections 464A and 464B define
Although
degree
statutory
degree
third
sexual
sexual act
offense.
intercourse,
penalties
are
neither
both
felonies
maximum
involves
crime,
to commit the
ie.
necessary
mental state
possessed
with a female under
engaged
sexual relations
knowingly
defense,
that issue
may
litigate
or that the defendant
traditions of
justice
so rooted
principle
“offends
of our
as to be ranked as fundamental”
people
conscience
is, therefore,
States
process.
inconsistent with due
See United
(10th
Ransom,
Cir.1991),
F.2d
776-77
cert. de
v.
—
(1992),
nied,
—,
In the case sub 13, year girl. with a not a old This intended to have sex said, prompted, prosecutrix of fact was he mistake herself; years told him that she was 16 she and her friends he prosecutrix’s age, Because he was mistaken as to the old. submits, than the certainly culpable he is less who old, engages but nonetheless knows that the minor is 13 *20 Notwithstanding, majority with her. the sexual relations 463(a)(3) any proof section to exclude of knowl- has construed construction, proffered or intent. But for that edge I would be viable. would hold the State is defense the defendant’s intent or prove relieved of its burden to therefore, and, rape in a case that the knowledge statutory as to may defend on the basis that he was mistaken defendant prosecutrix.3 respectively. proscribes the same 20 and 10 Section 464C however, 463(a)(2); applies to minors 14 or 15 conduct as section punishes severely, see 15 years old and it that conduct much less n. infra. analysis employ developed for in self defense
3. The I would use cases, imperfect. affirmatively to perfect and Before the State’s burden in, prove mental state kicks the defendant must have the defendant’s by producing supporting generated the issue "some evidence” his or Martin, 351, 358-59, fact. v. 329 Md. 619 her claim of mistake of State issue, 992, (1993). generates 995-96 If the defendant A.2d prove beyond a reasonable doubt that the act was commit- State must intentionally any acted ted without mistake of fact —that defendant id.; Evans, 208, 197, knowingly. see also State v. 278 Md. 362 629, State, 206, 216-17, (1976); Dykes 571 A.2d A.2d 635 v. 319 Md. 1251, (1990). 1257
595
Generally
I. Mens Rea
state,
to as
often referred
mental
Generally,
culpable
is,
Law,
27,
intent,
or
tea,
§
see
Criminal
mens
Wharton’s
been,
of a criminal offense.
essential element
has
an
long
251-52,
240,
States,
246,
72 S.Ct.
v.
342 U.S.
Morissette United
State,
312,
(1952);
236
203
244,
288,
v.
Md.
96 L.Ed.
294
Tate
State,
816
(1964);
Md.
102 A.2d
Davis v.
A.2d 882
State,
(1952); Fen
158, A.2d 80
(1953);
v.
201 Md.
Webb
(1885).
State,
ordinarily
A
240-41
crime
v.
wick
state; a
prohibited
culpable
conduct and a
mental
consists
constitute
must concur to
wrongful
act and a
intent
wrongful
crime,
being to avoid
purpose
the law
what
deems
innocent
inadvertent conduct. See
or
State,
638, 643,
v.
Md.
547 A.2d
Dawkins
Law,
United
(1988);
citing
also
Criminal
see Wharton’s
Fox,
Historically,
292-93), defendant, collector, iron went onto a scrap bomb were government bombing range, casings piled where truck in casings Morissette loaded the onto his haphazardly. broad and took them. He was indicted for “unlawful- daylight wilfully knowingly stealing] converting]” proper- ly, States, ty of the United violation of 18 U.S.C. sought § 641. He to defend on the basis that he
U.S.C.A.
abandoned, unwanted,
were
and of no
thought
casings
The trial
government.
permit
value to the
court refused
point,
appeal.
evidence on that
which was affirmed on
The
reversed, holding
Court
that where intent
is an
Supreme
charged,
element of the crime
its existence is a
essential
may
fact for the
and “the trial court
question
jury,
prejudge
withdraw or
the issue
instruction
law
raises a
of intent from an act.” Id. at
presumption
central
emphasized by
variety, disparity
criminal is
and confu-
mental
requisite
sion of their definitions of the
but elusive
*22
597
However,
and for
jurisdictions,
of various
courts
element.
offenses,
working
devised
have
of different
purposes
ones,
juries
instruction of
formulae,
if
for the
not scientific
intent,”
intent,” “criminal
as “felonious
around such terms
in-
“fraudulent
knowledge,”
aforethought,” “guilty
“malice
“scienter,”
“willfulness,”
knowledge
tent,”
guilty
to denote
rea,”
culpabili-
or mental
or “mens
purpose
an evil
signify
ty-
244,
252,
Id. at 72 at S.Ct. State, 426, 444, 614 in Anderson v. rеcently, More (1992), improperly court 963, held that the trial 972 we A.2d concealed, pursuant carrying defendant convicted the 36(a), considering 27, utility a knife without Article Noting being carried. utility knife was intent with which a a tool and as used both as utility knife could be 968-69, rejected we id. at 614 A.2d at weapon, Id. at 444, 614 required. that no intent was argument State’s that, object is not when the at 971. said instead A.2d We se, carrying a defendant dangerous weapon per to convict that the defendant requires proof dangerous weapon concealed Id. 444, A.2d 614 object weapon. as a intended to use at 971. dispense could recognized Congress
Although made if so the Court specifically, it did requirement the intent Morissette, limit. 342 was not without power clear that v. Tot 307, 275, 256, citing 72 96 L.Ed. U.S. at S.Ct. States, 467, 1241, 1245, L.Ed. United 319 U.S. 63 S.Ct. (1943). Thus, to eliminate 1519, 1524 legislature when a wants crime, expressly it should of a particular intent as an element Reasonable See Larry Myers, W. state the statute. so Statutory Rape, A Age: Needed Mistake Defense Hernandez, People see also (1965); 105,118-19 Mich.L.Rev. 361, 365, P.2d Cal.Rptr. Cal.2d (“in otherwise, legislative of a direction the absence intent defensible wherein criminal statutory rape charge imposition at 397. Legislative lacking.”); Singer, however, must be within constitutional liability, strict limits; the Due Process be to violate permitted it cannot Lambert v. see Amendment, of the Fourteenth requirement 240, 242, 2 L.Ed.2d California, 355 U.S. 78 S.Ct. (1957), comparable provision. or a state constitutional *23 infra. Liability
II. Strict Crimes recognized crimes to liability exceptions Strict are to not the actor they require rule do “guilty mind” rea, mind, or to a crime. the mens commit possess guilty Morissette, at n. 244 n. 342 U.S. 251-52 S.Ct. at irrelevant, His or of mind being L.Ed. at 294 n. 8. her state she actor of the at the moment that he or guilty is crime act. prohibited does the
A.
law,
of
statutory
In the
of the
two classes
evolution
Tonry,
crimes have
Richard A.
Statu-
liability
emerged.
strict
A
One of them
tory Rape:
Critique, La.L.Rev.
id.;
Daw-
consists of
welfare” offenses. See
see also
“public
kins,
638, 547
of this class are
Typical
A.2d 1041.
food,
liquor,
the sale of
involving,
example,
drugs,
statutes
offenses,
to
designed
traffic
see
Tonry, supra,
and
health,
safety,
community
and welfare of the
protect
on
“depend
of such statutes
no mental element
large; violation
of
acts or omissions.” Moris-
only
but
forbidden
consists]
sette,
72 S.Ct.
These cases offenses, against such as those common-law classifications of Many morals. state, public or person, property, the the positive aggressions are not the nature these offenses dealt, law so often but invasions, with the common or which care, or requires the law neglect in the nature of where are violations of such imposes duty. Many it a inaction where injury to in no direct or immediate regulations result of it danger probability create the or merely but property such offenses do seeks to minimize. While which the law state in the manner security of the not threaten against offenses its au- treason, regarded be as they may efficiency of con- impairs for their occurrence thority, presently order as to the social trols deemed essential the intent of the respect, In this whatever constituted. same, violator, consequences and the are injury is the Hence, fortuity. legislation injurious according or not offenses, does not policy, such as a matter applicable accused, if he necessary element. The intent as a specify violation, prevent usually position is a does not will the reasonably expect society might more care than it with no from reasonably exact might than it more exertion and no responsibilities. assumed his one who at L.Ed. Morissette, at at S.Ct. 342 U.S. effect, To like crimes, solely new created offenses are ... welfare public regulations. police in the nature of enactments by legislative criminal, even Moreover, strictly are not these offenses since upon, sanctions are relied though traditional punishment is neither legislature purpose the primary correction, regulation. rather but nor omitted). (footnote at Myers, supra, concurs, majority opinion see majority Obviously, and offense; it welfare merely public 579, “statutory rape” is an offense: characteristics of such not “fit” the simply does to “other contrast striking not a misdemeanor. felony, penalties,” their light offenses and liability regulatory strict of 20 penalty the potential majority opinion vari- “garden unlike the light penalty; is not imprisonment 463(a)(3), under section penalty liability penalty, strict ety” a criminal ignored it can be insignificant neither so that the fate slight nor so sanction, Singer, see R. LaFave and Wayne see ignored, can be of the defendant (“The Law, at 219 Scott, Jr., Criminal Austin W. likely some fault the more punishment, greater possible lighter possible punishment, conversely, required; liability with- impose meant to likely legislature the more *25 to penalize is fault.”); primary purpose and section 463’s out or her behavior.5 to correct his not “rapist”, B. offenses, having a differ- liability of strict
The second class
offenses,
nar-
consists of
welfare
public
than
justification
ent
455-56,
250,
McCallum,
451,
252-53
583 A.2d
321 Md.
In State v.
5,
driving
suspended
(1991),
with a
license
thе crime of
we characterized
a
state was
regulatory and concluded that mental
punitive and
as both
463(a)(3),
purely punitive,
§
is
argument
which
required. The
stronger.
is
require proof of a mental state
must
crimes. See
cotic,6
statutory rape
bigamy,7 adultery,
8,
Morissette,
8,
244 n.
96 L.Ed.
at 251 n.
The lesser statutory liable for strictly holding defendant rationale Reiss, supra, is not criminal.9 sex premarital where rape (“[W]here Scott, § at 361 LaFave and 382. See rape] should [statutory not criminal it is itself fornication made a has merely because the defendant become whom he has girl mistake about reasonable intercourse”).10 Maryland. See is not a crime Fornication still a crime in several American of wedlock is Sexual intercourse out Code, 213.6, § at 430. The Comment Model Penal Jurisdictions. See long fell within the Biblical sources and prohibition derives from England, Id. ecclesiastical authorities. jurisdiction of the exclusive theocracy and was aban- punishment began under Cromwell's secular England reinsti- Puritans of New Id. The doned after the Restoration. another, At time or misbehavior. Id. one punishment for sexual tuted penal reach such miscon- their laws to states extended most American duct, century been toward decriminalization in this has but the trend Lease, 246, 248, 203 e.g. penalties. See Baker reduction of 213.6, § Com- generally Penal Code Model A.2d See omitted). (footnote ment at supported under the lesser plausibly have been could 10. A conviction sex married when he had legal wrong theory had the defendant been Maryland. Adultery a crime in prosecutrix. remains with the (1957, Repl.Vol.) defendant’s intent Art. 4. The Md.Code wrong, requisite legal would suffice as adultery, the lesser commit statutory rape. greater crime of mental state for the *27 (1964). Lease, 203 A.2d Md. Baker v. from offense underlying is no Maryland, there Accordingly, Moreover, transfer intent. which to in the rea in consensual intercourse engages man who [a] of reached [the his has partner sonable belief to take willingness no abnormality, no evidences consent11] corruption to immaturity, propensity no advantage intent nor short, neither he has demonstrated minors. In the law of interests that any violate of the inclination to most, has disregard At he protect. seeks to statutory rape In terms social convention. precept or religious ed from indistinguishable conduct is his culpability, mental in fornication. Whether who person engages other judgment a about at all on punished depends he be should offense, he but at least fornication as a criminal continuing statutory rape. for subject felony to sanctions should not be 213.6, § at 415. Model Penal Code Comment
C.
legislatures seek
wrong theory,
In
the moral
State
utilizing
non-
rape when
liability
statutory
for
justify
to
strict
is not a crime on
basis
marital sexual intercourse
i.e.,
or wrong,
of it as immoral
society’s characterization
Reiss,
to commit
at 382. The intent
supra,
malum in se.12
contrast,
who
engages in
relations with a child
In
one who
sexual
consent,
example,
appear
age of
for
a
clearly
to be of the
does not
corrupt
Be-
age,
propensity
a
to
minors.
evidences
minor
not of the
necessarily is
that the minor is
aware
cause
consent,
properly held
believe that he or she is
almost all authorities
Code,
e.g.
Penal
basis. See
Model
accountable on a strict
213.6,
at 415-16.
Comment
naturally
properly
defined as one which
12. An offense malum in se
community.
in se
adjudged by
of a civilized
Acts mala
evil
have,
the sense
as
rule,
by the course and
general
criminal offenses
as a
become
Dictionary 281
development
Black's Law
of common law.
wrong only because made so
comparison,
prohibitum is
an act malum
felonies, injuries
usually include all
in se crimes
statute.
Id. Malum
upon underage
adultery, bigamy,
acts committed
property,
indecent
children,
delinquency of minor. See
contributing to the
and conduct
related,
rea for
but
supplies
immoral acts
the mens
such
crime;
public decency
good
or
outrage upon
unintended
morals,
only
that is
it is
wrong
prohibited
not conduct
because
by legislation,
predicate.
malum
prohibitum,
theo-
problems
wrong
There are
with
moral
significant
First,
be the
ry.
questionable
morality
it is
whether
should
Tonry,
interpretation
basis
law. See
legislation
(moral
113;
supra,
see also
blame
Singer,
liability).
be
for criminal
predicate
should
abolished
Immorality
illegality;
intent to do an
synonymous
is not
equate
intent to do
criminal act.
immoral act does not
*28
Inferring
immorality, especially
criminal intent from
when
criminal,
act
accused is not even aware that
is
seems
Reiss,
unjustifiable
supra,
unfair.
at 382.
addi-
See
tion,
evolving.
are
society
the values and morals of
ever
unmarried
consenting
Because
intercourse between
sexual
is not
adults and minors who have reached the
of consent
immoral,
wrong theory
to be
the moral
clearly
now
considered
liability
statutory rape.
not
strict criminal
for
support
does
itself,
Second,
immoral,
an
in and of
classifying
act as
intention,
of the
is
divorced from
consideration
actor’s
what
act moral
contrary
general
to the
consensus of
makes an
an act is
Tonry,
Ordinarily,
or immoral.
at 113.
supra,
See
of the
moral or immoral
on
intention
depending
either
Holmes,
Id.,
in The
citing
Early
Liability,
actor.
Forms of
(Howe
1963), citing
Ethical
Bradley,
Common Law 7
ed.
(“Even
(1876)
Studies,
1
between
Essay
dog distinguishes
kicked.”).
being
being
stumbled over
Third,
the act alone will suffice
the assertion that
intent
liability
necessity
proving
without the
criminal
law that
contrary
the traditional demand of
criminal
criminal intent is sufficient to constitute
only
plus
act
not be
crime.
at 113. “Moral duties should
Tonry, supra,
See
duties,” and, thus,
identified with criminal
when fornication
115;
Myers, supra,
Boyce,
N.
see also Rollin M. Perkins and Ronald
Law,
(3rd
1982).
ed.
Criminal
merely
criminal
be-
it should not become
itself not criminal
about the
made a reasonable mistake
the defendant has
cause
he has had intercourse.
girl
with whom
age P.2d at
Hernandez,
Cal.Rptr.
Therefore, judice, in the case sub defendant although old, a minor with a girl in sexual relations engaged malum, se, consent, see his conduct is not below the * Blackstone, 210, and, so, liability strict W. Commentaries justified. III. Mistake of Fact fact the mental state re- Generally, negates mistake of LaFave a material element of the crime. quired establish Scott, engages at 356. A who if, conduct is because proscribed relieved of fact, ignorance or mistake of he or she did not entertain mental state for the commission culpable required § 76.13 Rich- Compare offense. See Wharton’s Criminal Law State, A.2d mond v. (In
(Bell, J., self-defense, case of defendant who dissenting) completely upon findings acts in self-defense is exonerated his or her actions subjectively that he or she believed that were, and, necessary objectively, they were viewed *29 self-defense, fact, in defendant necessary; imperfect case of were neces- subjectively who believes that his or her actions but, not, objectively, they completely were is not exoner- sary, ated, lesser is although appropriate). sentence intercourse, rape by person is defined as sexual
Statutory
older,
age
or more
with a
under the
of 14.
years
person
four
463(a)(3).14
(1957,
§
Art.
Maryland
Repl.Vol.)
Code
1992
negate
necessary to
13. The mistaken belief must tend to
the mens rea
example,
of the crime. For
belief that the victim was
commission
age,
years of
instead of
will be of no avail since section
13½
463(a)(3)’s age limit is 14.
noteworthy
early English
providing for strict
It is
that the
statutes
14.
liability
statutory rape
deny
criminal
for
did not
the defense of mistake
conclusively presumes
That
under
statute
sexual
legally consenting
of
to
intercourse.15
age
incapable
law,
early English
it was
to have
very
fact.
common
no crime
of
Under
female, regardless
age. Myers,
with a
of her
consensual relations
Coke,
109, citing
supra, at
4 W. Blackstone Commentaries *210 and
century
part
not until
of the thirteenth
Institutes *180. It was
the latter
making
legislation
England
in
it
ravish
was enacted
unlawful to
consent,
age
years,
of 12
with or
"damsels” under the
without their
trespass,
penalty
years
two
a fine
of
with a
of
and
considered an action
Law,
sovereign
Blаckstone,
Moylan,
Gilbert &
Criminal
in such sum as the
directs.
5.0.,
§
*212.
the close
citing 4 W.
Commentaries
Toward
old,
age
years
of
reduced to
century,
consent was
16th
being
girl
prescribed
purpose
to
that a
under the
of the statute
declare
presumed incapable
young
of
she
to
age was
consent because
was too
109-10;
Myers, supra,
quality
and
her act.
understand the nature
Law,
Torcia,
291;
§
Charles
Wharton’s
1 Blackstone
E.
Criminal
felony.
to a
Gilbert
offense was
increased
See
Comm. *212. The
also
Law,
5.0.,
I,
Moylan,
citing
West-
13 Edward
Statute of
Criminal
I,
courts,
English
c. 7.
in
minster
c.34 and Statute
Elizabeth
courts,
however,
it,
contrast
American
which never have allowed
to
mistake
defense.
never denied the existence
the reasonable
of fact
supra,
erroneously interpreted Regina
Myers,
American Courts
Prince,
(1875),
Myers, supra,
cited in
L.R. Cr.Cas.Res.
applied
statutory rape.
its rationale
justify
policy
historically been advanced to
15. Two
considerations have
(1)
liability
statutory rape:
provide
strict
for
is desirable to
criminal
incapable
female
protection
the fullest
to the innocent and naive
child
intercourse;
understanding
nature of
the act is
sexual
se,
and, so,
itself,
supra,
appropri-
immoral
malum in
discussed
it is
peril.
Tonry, supra,
acts
See
at 111.
ate to hold that the offender
at his
sexually
Establishing
age, below
are
an
which females
considered
which,
mature,
they
sexually
does
immature
above
are considered
policy
will be
not assure that the first
consideration
achieved.
sufficient,
that,
Age
considering
Tonry,
alone
not
at 111.
purposes
age
statutory rape
ranges from
country,
this
of consent for
years.
7 to 21
Id.
up
inadequacy
actually points
as a
line
demarcation
First,
analysis.
it would seem
flaws
the strict
reasonable
allow the accused to introduce evidence of the minor’s
maturity,
past
experience,
maturity,
sophistication, and
since
sexual
concern,
Second,
age,
age being
but a factor.
the chief
(unless
enough)
application
low
universal
draws
standard
it is
with its
line, resulting
imposition
disproportionate penal-
arbitrary
an
in the
Pitcher,
(1977);
Legislation,
ties. See
7 Balt.L.Rev.
J. William
Thus,
pursuant
Tonry, supra,
example,
section
see also
at 112.
463(a)(3)
age,
person under 14
if the
sexual intercourse with a
*30
victim,
years
degree rape
actor is at
four
older than the
second
least
possible twenty years imprisonment.
punishable by a
Under
offense
State,
(1919) (consent
613,
Rau v.
A girl be, 13 years may and, fact, old appear may represent herself as If being, over 16. she appear should be the age represented, a defendant may suppose reasonably that he received a valid consent from partner, his whom he mistakenly believes to be of legal age, to find only that her 464C, offense, defining degree section a fourth sexual the same conduct if punishable committed with a child 14 or 15 by possible year Thus, potential sentence. the law disparity up creates a to 19 for a day difference of as age. little as one in the victim’s See J. William Pitcher, (1977). Third, Legislation, 7 Balt.L.Rev. placing high may standard too anomaly result in being of a female
legally marriage, able to consent to but unable to consent to inter- Ploscowe, Tonry, supra, course. (1951). citing Sex and the Law 184 16. While consent was not an element of assault with intent to have knowledge definition, carnal years, of a female child under 14 knowledge intent to year have such of a 14 Consequent- old child was. intent, ly, focusing on the result in that case was not inconsistent with the common law.
608 holds, situation, majority In this legally invalid. consent lack of girl’s age consequent as to the and his reasonable belief defense; no the act alone suffices to intent are criminal plausibly may But is when the minor guilt. establish age consent that need that she has attained the of represent a on his or present to be able to defense based for a defendant age of to is the that the minor was consent her belief greatest. Hernandez, 61 Cal.2d at Supreme
The
Court
California
3,
3,
3,
quoting
n.
at 676 n.
n.
at 364
393 P.2d
Cal.Rptr.
534
39
(1951), has
and the Law 184-85
Plascowe,
recognized
Sex
There,
statutory rape.
a defense to
age
mistake of
as
a
statutory
pursuant
to
rape
was convicted of
defendant
years
18
of
setting
age
age.
law
a consent
limit of
California
old. The
17
and 9 months
court
prosecutrix
years
was
of
belief that
proof
that an offer of
defendant’s reasonable
held
a defense
age
had reached the
of consent was
prosecutrix
365,
Cal.Rptr.
“When the law declares illogical it is to refuse age rape, ten not under the defense, thought T she was give any credence to older, committing that I I did believe was and therefore *** her.’ But when I had sexual intercourse with crime sixteen, twenty- eighteen, limits are raised age when woman, one, when girl young becomes young when her, men boys as well are attracted young adolescent as abnormality quality act to lose its begins the sexual Bona mistakes danger to the victim. physical fide no who are more by boys can be made men girls social, and edu- others of their economic dangerous than * * * if the looks to be much older girl cational level. Even than the age stаtute, of consent fixed if even she lies to the man if concerning age, her she is a day below the statutory sexual intercourse with her rape. The man boy who has girl intercourse such still acts his peril. The statute is interpreted protecting it were if children under the age ten.” Moreover, Myers, concurs that reasonable age, mistake of should be a defense to statutory rape where is no there threat of force. He explains position thusly: his *32 are many girls [T]here between the ages twelve and fifteen who obviously dress, are so immature in physique, deportment they would be approached only by a person psychologically disturbed coming or from a subcul- ture acceptable where the age-range is lower than the usual level in the However, United States. there are even more from girls twelve to fifteen whose appearance behavior within, them place of, or on the vague border the average male’s category teens, of desirable By females. the middle most girls are sufficiently developed physically are sufficiently aware of social attitudes for a man to to have use considerable force or some definite threat if girl (Footnote objects omitted). to sexual contact.
Thus,
that,
it has been
“[b]y
observed
the middle teens most
girls have
point
reached a
of maturity which realistically
enables them give meaningful,
although not legal, consent.”
Id. at 122. It is for this reason that
with
girl
“[i]ntercourse
a
who
in
her middle to late teens
qualities
lacks the
abnormality and physical danger that
present
are
when she is
still a child....
It is clear that the element of ‘victimization’
decreases as the girl grows older and more sophisticated.”
Guest,
Id. at 121-22.
e.g.
See
State v.
(Alaska
The Model Penal first, crimes, statutory rape. categories two proposes on one who has sexual relations strict impose would generally under 10. Model Penal Code and a child at 415-16.18 See also Del. Commentaries, 213.6, § Comment 2907.02(A)(3); 3102; 772(a); § § tit. § Pa. tit. Ohio 61-8B-13(b). encompass category § The second would W.Va. consent, statutory but over 10 the critical minors under Code, 213.6, Comment at 415-16. Model Penal years old. category falling relations with child this Having sexual crime, punish- could escape still but a defendant would be as to the if that he she was mistaken he or she proved ment pre- consequences employing these potentially unfair illustrate the sumptions of victimization: female theory. wretched "We case a condition and not This have this old in sin and shame. A number of girl young in but was seduc- youths, lives ... fell under her callow of otherwise blameless her, They about ... like moths about the tive flocked influence. *33 girl probably the The lighted candle same result. flame of a and prostitute.... was a common against than boys were and doubtless more sinned The immature girl. sinning. They not the She was a mere 'cistern for did defile boys, by gender Why in.' the misled to knot and should foul toads her, public policy What can be subserved be sacrificed? sound ingraft exception Might it wise to an branding them felons? not be the statute?” currently promiscuity Today, increasing and evi- sexual awareness the experimentation probability ages that sexual dent at lower enhances solicited, in, supposed indulged many by the victim. be times will Indeed, Myers, every reason to 122. in this case there at petitioner, rather than the minor question the victim was whether IQ prosecutrix petitioner has 52. The and her an female. The does not petitioner she was 16 and the record told the that friends age. petitioner appear to be that entered suggest she did not that her for prosecutrix's invitation and remained with room her almost seven hours. issue, I am necessary in this case to reach the Although 18. it is not involving liability in nearly by the of strict cases so troubled retention children, age requiring while the State very young i.e. under the age involving of 10. prove in cases minors above to mens rеa prevailing Both are consistent with the age. categories child’s view, law, and with the common that a child contemporary too to understand the nature and years young under 10 old is 109-10; act, E. Myers, supra, of his or her Charles quality Law, Torcia, 291; § Criminal Blackstone Com Wharton’s years § and that a child over 10 mentaries attitudes and the nature of sexual ordinarily is aware social Hernandez, 121; also Myers, supra, contact. See see at 676 n. Cal.Rptr. at 534 n. at 364 n. 393 P.2d Cal.2d Thus, to defend a the Code would allow the defendant involving falling category a minor the second charge rape child reasonably on the basis that he or she believed the to be 213.6, age. above the critical See Model Penal Code Com at 416.19 ment judice, dispute
In the case sub the defendant does not year prosecutrix. had sexual relations with the 13 old He he to himself labeled a only against being seeks be able to defend so, however, He do if he is allowed to rapist. may only of fact as to present evidence that he-acted under mistake believed, so, prosecutrix’s age, reasonably that he proof proposed she was above the of consent. The he his defense the victim and her present prove was him friends told that the victim was 16 old. He should have been to show that he the “guilty allowed lacked mind” to year have sex with a 13 old.
IV. Constitutional Limitations Liability
on Criminal Strict Legislature A does power State have define the recognized juris- elements of the criminal offenses within its proof alleged 19. The offer of of the defendant's mistake of fact does not fact, jury, accepts alone establish that fact. Unless the or trier of proof, actually the defense must fail. Whether a defendant entertained and, so, reasonableness, the belief that the minor was 16 if its must evidence, depend upon appearance including the minor's *34 witnesses, testimony concerning of the defendant and other her behav- State, do, place proof Rather I would ior. than the burden of on the as Code, only generate under the the burden is on defendant not issue, prove by preponderance but to it of the evidence. See Model Code, 213.6, Penal Comment at 416. 612 Statеs, 419, 424, v. 471 U.S. 105
diction.
United
Liparota
434,
(1985);
2084, 2087, 85 L.Ed.2d
439
Smith v.
S.Ct.
Califor
205,
nia,
147,
215, 217, 4
209
150,
L.Ed.2d
361 U.S.
80 S.Ct.
(1959);
225, 228,
240,
355
California,
Lambert v.
U.S.
78 S.Ct.
228,
(1957);
State,
242,
v.
Md.
2
81
L.Ed.2d
231
McCallum
451,
413,
967,
(1990),
403,
aff'd,
567
971
583
App.
A.2d
fact,
389.
Singer, supra,
A.2d
at
250
Cf.
has
“There is
latitude in lawmakers
Supreme Court
said:
wide
knowledge
an offense and to exclude elements
declare
Lambert,
228,
355
at
from its definition.”
U.S.
diligence
242, 2
at
Accordingly,
L.Ed.2d
a State
78 S.Ct. at
prescribe
strict
legislature may constitutionally
its
offenses, discussed
committed within
public
welfare
simple
But “far more than the
omission of
boundaries.
necessary
statutory
from the
definition is
appropriate phrase
an intent
dispensing
requirement.”
United
justify
438,
422,
438 U.S.
98
Gypsum Company,
States v. United
omitted).
(1978) (citations
2874,
854,
2864,
57
870
S.Ct.
L.Ed.2d
Morissette,
263,
250,
72
at
342
96 L.Ed.
U.S.
S.Ct.
(mere
intent
not be
any
omission of
mention of
will
announced);
element
from crime
eliminating
construed as
McCallum,
Indeed,
Md. at
613
See McMillan v.
Pennsylvania,
determine its
validity.20
will
79, 83, 85-86,
2411, 2414-16,
67,
477
106
91
U.S.
S.Ct.
L.Ed.2d
Liparota,
(1986);
6,
424
74-76
471 U.S. at
n.
Due
whether
process,
or the
clause
a state
corresponding
teenth Amendment21
*36
constitution,
an
of a
protects
being
accused from
convicted
a
every
doubt of
except
proof beyond
crime
reasonable
upon
to
the crime with which the
necessary
element
constitute
364,
Winship,
In re
358,
397 U.S.
90 S.Ct.
charged.
accused is
Wilbur,
Mullaney
1073,
368,
(1970);
25 L.Ed.2d
1881, 1883,
684, 685,
95 S.Ct.
L.Ed.2d
U.S.
(1975).
characteristics,
if not the
implicates
It thus
the basic
re
In
system.
of the accusatorial
underpinnings,
fundamental
1072-73,
Winship,
Irrebuttable § 45.12. 303.1; 301.1, Moylan, & McLain, §§ Gilbert Evidence, § “Conclu- 2492 at Wigmore, also 9 J. (Chadbourne Rev.1981), in it is which Presumptions” sive explained: conclusively to be another is said from one fact
Wherever absolutely opponent in the sense presumed, second evidence that the showing by any from precluded exist, that where really providing rule is fact does exist, fact’s existence the second first fact is shown case; proponent’s purpose for the wholly immaterial law and rule of substantive this is to make a provide and to as to persuading the burden apportioning not a rule coming forward varying duty propositions certain evidence. issues to define the Thus, help presumptions irrebuttable case, § 303.1 at kind of McLain particular to a pertinent *37 the sense, law determines and, in the substantive that because evidence, thus the admission of govern be proved, issues to Id., materiality. of relevance and establishing perimeters the McLain, § 303.1 They may statutory, § be 301.1 at 183. In re 2, in the common law. See origin or have their 182 n. 1, 104, n. 860 Davis, 100 n. 299 A.2d 858 Md.App. 17 609, 620, 224 78 A.2d (1973); Graff, Miller v. law, age under the at common children Accordingly, are, incapable to be were, irrebuttably presumed of 7 and still Davis, intent, years and children under forming criminal of are, been were, presumed to have irrebuttably and age, of As a matter of substan contributory negligencе. incapable of then, therefore, not law, ages children of those could tive law, now, be sued under the criminal prosecuted be may Simi contributorially negligent. to or held be negligence, 463(a)(3) presumption reflects the irrebuttable larly, section consenting to incapable is that a child under Rau, 105 A. at Md. at intercourse. See sexual crime, ie., Legislature the enacts a strict When element, excludes an promulgates statute which as state, essentially mental it creates an irrebuttable defendant’s ie., state, mental presumption knowledge that defendant’s McLain, intent, That is irrelevant. 301.1 at 183. See regard statutory rape. Notwithstanding that the case to crime, by defining to that result accomplish chooses express an which presumption, rather than means of remains proof, the State of its burden of the fact relieves anyone exactly the same: who has sexual rela- the result if a female under the 14 is treated he tions with that she was under 14 and so intended to have such knew a 14 It year relations with old female. thus relieves State to to the defen- any duty produce prove relevant evidence state, age, he knew the prosecutrix’s dant’s mental prevents proving contrary. from Because defendant irrebuttably presumed inextricably fact does not follow old, its use year the fact of sexual relations -with 14 to from proof prove relieve the State its burden defen- process intent runs afoul of the due regard dant’s of the Fourteenth Amendment. clause Irrebuttable, been mandatory, presumptions long have dis- due process. and held be violative of Vlandis v. favored Kline, 441, 446, 453, 2230, 2233, 93 S.Ct. U.S. 63, 68, (1973), and cases therein cited. One of the L.Ed.2d they conflict with may for the disfavor is that bases innocence law accords overriding presumption of which the which, finding the fact in a process, the accused invade case, province jury. the exclusive 263, 268, 2419, 2421, California, 109 S.Ct. Carella 491 U.S. (1989) (Scalia, concurring) (jury J. in- 105 L.Ed.2d *38 proof burden of relieving prosecution structions its she rights; whether he or process violate a defendant’s due decide, fact ordinarily question jury is a for the believed for usual Legislature). not one of law The more reason howеver, that for disfavoring presumptions, irrebuttable conclusively presumed necessarily universally “is not or fact 2236, Vlandis, fact,” at at true in U.S. 93 S.Ct. so, of that fact 71, and, proponent excusing at L.Ed.2d “arbitrary, the statute establish it renders having from Mahoney, unconstitutional.” and hence illegal, capricious when especially at 603.22 This is so Md. at 48 A.2d the statute’s or no relation to fact bears little presumed Vlandis, 448-49, 93 S.Ct. at U.S. objective. expressed Nor, other “where there are L.Ed.2d at 69-70. pertinent establishing means of practicable reasonable and 451, 93 id. at objective premised,” facts on which the State’s may presumption, a conclusive 37 L.Ed.2d S.Ct. or, acceptable because be rendered appropriate, not otherwise id., the certainty,” matter of “administrative ease it is a burden reduced. State’s conclusively presumed in Vlandis
The statute invalidated admission to applied when he residence applicant’s that the throughout his residence University remained a Connecticut 146 of the Mahoney was Rule years. At issue college his Commission, of which pertinent portion Racing Maryland provided:
“(d) saliva or analysis from of the If the finds Commission day on the race urine, blood taken from a horse or evidence, ran, competent from other the horse or which forty- administered to the horse within drug had been race, subject shall be before the the trainer eight hours (e) hereof, whether subsection penalties prescribed to the carelessly or drug, knowingly administered the or not he State, (1881), by cited this Court in 359-63 In Johns v. 81, 87, (1946), a statute Mahoney Byers, 187 Md. 48 A.2d prima Comptroller requiring to be received the certificate facie so, upheld. doing was of the defendant's defalcation evidence however, by evidence was persuaded the fact that the the Court was prima only facie: conceded, concerned, may readily be far as this case is So conclusive, was not so of its make evidence which statute that should force, party by preclude means inherent own nature and truth, furnished simply void. But the evidence would be from effect, prima the traverser was only being facie in its the certificate effect, by prima facie liberty repel and overcome that left at full control. ought to have been within his own evidence that Id. at 362-63. *39 618 analysis The fact that the to be administered.
permitted it of a shall be conclusive evidence drug shows presence part of the on the knowledge that there was fact either permit- in trainer that he was of carelessness guilty or it to ting be administered.” also States v. at 602. United 83-84, A.2d Md. at Cir.1985) (6th 1121, 1122 Wulff, (interpreting F.2d statute); Guest, Act, Treaty Bird a strict Migratory (holding statutory rape P.2d at Alaska’s statute 838-39 process). a violation of due unconstitutional as Smith, Tot, and Lambert are also The ordinance apposite. Smith made any “for to have in issue unlawful at ... writing, obscene or indecent books possession any [or] his ... books ... are sold or place business where any [i]n at at L.Ed.2d at kept for sale.” 361 U.S. S.Ct. on proof any It did mental element require 208. not Id. at 4 L.Ed.2d at of the 80 S.Ct. part defendant. “analogize Noting, rejecting, attempt but the State’s penal liability penal strict ordinance to familiar forms this on knowledge element of dispense any statutes which drug being a person charged, legislation of the food and part (id. the Court observed principal example,” (citation omitted)): at 211 4 L.Ed.2d S.Ct. for the public The usual rationale such statutes great interest of its food is so as to warrant the purity highest standard of care on distributors— imposition of the not in fact an standard which will hear the distribu- absolute he to the amount of care has used.... His plea tor’s the character of the food irrelevant. There ignorance of against making constitutional inhibition specific is no food the strictest censors of their merchan- distributors of dise, of the freedom of guarantees but the constitutional way stand in the a similar speech press imposing and of on the bookseller. requirement Lambert, Angeles required a Los ordinance convicted days more city felons who than five remained “knowledge” It did contain register police. with the held: Court Supreme rea requirement. or mens of the proof duty register knowledge actual failure to knowledge subsequent of such probability *40 the ordi- under necessary are before conviction comply know of the did not can stand.... Where nance of no the proof and wherе there was register duty convicted may not be knowledge, of such he probability otherwise, it the evil consistently process. due Were in is print as it when the law written great would be as community. foreign to the language too fine or in a 243-44, at 232. at L.Ed.2d at S.Ct. U.S. 2(f) Tot, the Federal that section of Similarly, holding the Fifth Due Process Clauses of Act violated the Firearms 1245, at Amendment, 319 at 63 S.Ct. U.S. and Fourteenth convic- overturned the defendant’s 87 L.Ed. at the Court the had no to create Congress power held tion. It that that, from the section to wit: contained that presumptions his of violence and prior conviction of crime defendant’s firearm, conclusively presumed of a it is present possession foreign or com- firearm was received interstate that the at merce, of the statute. Id. after the effective date Rejecting the Government’s S.Ct. at 87 L.Ed. at the to the because argument presumption that it was entitled information, of the Court said had better means defendant the (id. 1525): 87 L.Ed. S.Ct. sound, it If were the argument proves the too much.
But finding that of an legislature command the might validly accused, indictment, proof identity of or mere the of all the facts should create a the existence presumption (footnote guilt. permissible, This not omit- essential ted). intentionally judice, by consciously
In
case
the
sub
463(a)(3)
the
any requirement
from
that
excluding
section
knowledge
proven,
of the victim’s
be
defendant’s
obligation;
that
without
Legislature has relieved the State of
have
course,
burden would
the State’s
legislation,
least,
at the
that the defendant knew
proving,
very
included
intent,
age.
On the issue of the defendant’s
prosecutrix’s
468(a)(3)
and its
only requires proof
section
of the victim’s
such,
with that of
defendant. As
once those
differential
proven,
conclusively
have been
it is
established that the
facts
intent was to have sexual relations with a
girl
defendant’s
seen,
As
have
proscribed age.23
requiring proof
we
accomplished by
defining
the defendant’s intent has been
so
crime,
express presumption. Again,
not means of an
consequence,
By defining
no real
however.
crime,
be
In
Legislature prescribes
proven.
what must
words, by
process,
other
it has determined what the rule
by defining
of substantive lаw will
the crime so as to
be—
intent,
naturally
or
proof
knowledge
Legislature
exclude
the admission of
evidence
on the ele-
precludes
bearing
ment,
it
proof
doing,
of which
has excused.
so
has
knowledge
made that
of the victim’s age—
element —intent
*41
and, hence,
to the
crime
irrelevant
definition of the
irrebutta-
follows, therefore,
that,
§
ble.
2492 at 307-08.
It
Wigmore,
proven,
once the other elements are
the defendant’s knowl-
edge
necessarily
or intent is
established as well.
It does not
follow, however,
necessarily
because the victim is
simply
old,
had
years
knowledge
age
13
the defendant
of her
or
year
girl.
intended to have sexual relations with a 13
old
He
intent,
sure, but,
to
may
knowledge
by
have had
or
be
token,
not
may
same
he
have. The defendant should have
permitted
present
been
to
evidence on the issue.
treatise,
McLain,
authorities,
In her
Professor
echoing
example
Legislature redefining
offered an
of the
a crime to
element,
relying
exclude an
without
on an irrebuttable pre-
(1957,
sumption.
Maryland
Repl.
She referred to
Code
1992
sure,
presumption:
23. To be
the statute is based on another irrebuttable
incapable
consenting. My argument
that the victim is
of
is not directed
is,
presumption,
my opinion, logically,
game
at that
albeit it
fair
also
Hernandez,
challenge.
for constitutional
See n. 26: see
61 Cal.2d at
Cal.Rptr.
certainly
534 n.
39
at 364 n.
The critical issue in a statutory
serves two
That is true because the victim’s
rape victim.”
(1)
related,
it establishes the victim’s
purposes:
but distinct
(2)
represents
consent
notice to defendant
capacity to
irrebutt-
Maryland
conduct.
statute seeks
proscribed
consent
that the victim could not
ably
presume
only
that,
engages in
virtue
but also
when a defendant
age,
Bringing
286A.
into State
excess
certain amounts.
(a)
following
any
person
brings
who
into
State
con-
A
this
dangerous
trolled
substances which it is unlawful
for that
indicated,
conviction,
subject
possess,
upon
in the amounts
(b)
penalty provided in
of this section:
subsection
(1)
pounds
greater
marijuana;
or
(2)
any
containing
grams
greater
or
or
mixture
cocaine
cocaine;
grams
greater
or
derivative, salt,
morphine
grams
opium
or
or
more of
or
isomer,
morphine
opium;
or salt of an isomer of
*42
1,000
(4)
dosage
lysergic
diethylamide
any
units of
acid
or
mixture
1,000
equivalent
dosage
lysergic
containing
of
of
acid
units
diethylamide;
(5)
liquid
powder
grams
phencyclidine
or
or
form or
more of
any
containing
grams
phencyclidine;
or more of
mixture
1,000
(6)
dosage
methaqualone;
units or more of
or
grams
methamphetamines
any
or
mixture
more of
or
con-
taining
grams
methamphetamine.
or more of
(b)
(a)
person
violating
this
A
convicted of
subsection
of
section is
$50,000
felony
may
guilty
be
not more than
or
of a
fined
imprisoned
years,
imprisoned
for not
than 25
or both fined and
more
in the discretion of the court.
14,
a minor under
of
he has
age
sexual relations with
that,
that
on the victim’s
Assuming
age,
notice of
fact.
based
as an ele-
Legislature
legitimately
could
exclude consent
crime,25 absolutely
of the
it
should not be able to excuse
ment
the defendant’s knowl-
obligation
prove
the State from its
of the
defendant from
edge
age
prevent
produc-
victim’s
forcefully may
that
No
how
it
ing evidence on
issue.
matter
a rational
argued
relationship
be
that
there is
between
selected,
to consent and the
capacity
age
Legislature
given
individuals,
in ap-
the tremendous difference between
both
and in mental
there can be no such rational
pearance
capacity,
relationship
proof
age
between the
of the victim’s
and the
Tot,
that fact.26
knowledge
defendant’s
of
319 U.S. at
Mahoney,
63 S.Ct.
87 L.Ed.
1525.
The notice element of the crime of
is differ-
element, in
A
who
any
ent from the consent
event.
defendant
consented,
fact,
knowledge
has
that a victim has
to sexual
relations,
not,
whether
the consent
is effective or
is not
thereby placed
age. Knowledge
on notice as to the victim’s
of
arguable
incapacity
It
is at
least
to consent based on an
25.
presumption
scrutiny.
irrebuttable
cannot withstand constitutional
For
comport
process,
statutory rape to
with due
a close correlation between
specified
purpose
of consent
in the statute and the
incapable
consenting
statute —to render minors
of
to sexual
inter-
required.
necessarily
statutory age
course —is
It is not
true that a
of
capacity
consent
is a reliable indicator of the
member of the
protected
consequences
class to understand
nature and
of sexual
Hernandez,
Cal.Rptr.
intercourse. See
Moreover,
which
felony
statute
precedent
there
will
conviction which
prescribes
penalties
substantial
due
stigma,
social
violates
subject
significant
the defendant to
prove
intent or knowl-
requires
the State
process unless
States,
1125; Holdridge v.
Wulff,
F.2d at
United
edge,
(8th
Heller,
Cir.1960);
We are of the that in opinion order for one to be convicted MBTA, of a felony under the a crime unknown to common which law carries a substantial penalty, Congress must require the prosecution prove the defendant acted with Otherwise, degree some of scienter. a a acting with completely innocent state of subjected mind could be ato penalty grave This, severe to his damage reputation. in our opinion, the Constitution does not allow.
Id. at Holdridge, 1125. See F.2d which it is said: a federal
[WJhere criminal statute omits mention of intent where seems to involve what is basically a matter of is, policy, imposed where the standard under the circum- stances, reasonable and adherence properly expect- thereto ed of a person, small, where the penalty relatively where besmirch, conviction does not gravely where the statutory law, crime is not taken over from the common and where congressional purpose is supporting, the statute can be requiring construed as one not criminal intent. The elimi- nation of this element is then not violative of the due process clause. Court of Supreme was
A similar result reached rape. Guest, involving charge statutory Signifi- Alaska that, a reasonable precedents, under its cantly, having held submitted: the court permitted, defense was mistake [Wjhere public not a welfare type statute is particular offense, be requirement of criminal intent must either be unconstitution- into the statute it must found read possible be construed where al.... Since statutes should here to infer a necessary to avoid it is unconstitutionality, of criminal intent. requirement (citations omitted). at 839 and footnote
Id. Similarly, statutory rape Maryland prosecution in protect- necessarily into conflict the State’s interеsts brings section process rights minors and defendants’ due because ing. *45 “ 463(a)(3) ‘to of operates knowledge exclude elements definition,’” Ransom, F.2d from its at diligence Lambert, 242, 2 U.S. 78 S.Ct. L.Ed.2d at quoting 231, and, thus, girl’s the ignorance removes reasonable of of intent a consequent lack as defense. 463(a)(3) require of of proof culpable failure section due process state conflicts both with the substantive mental of possess that defendants some level fault for requiring ideal statutory rape procedural criminal conviction of and the due prosecution ideal the overcome the process requiring guilt innocence of the defendant’s presumption by proof of Notwithstanding the maxim that beyond reasonable doubt. the dispensing requirement criminal statutes intent “generally mens have a requiring criminal offenses no rea status,” parts of and VI the rationale V of the disfavored authority is that absolute majority opinion legislature the has reviewed, the I liability to create strict crimes. For reasons the I due agree. contrary, process do not On believe that under Fourteenth Amendment and under Decla- both Rights, precludes statutory ration of strict criminal 463(a)(3) Interpreting majority section does has rape. largely relieving proof effect of the State of its burden intent, By making and burden of the defendant’s persuasion. irrelevant, and, hence, blameworthiness, Legislature has Moreover, inevitable, upon conviction. petitioner’s made statutory rape under section felony conviction of the offense 463(a)(3), to 20 penalty up in addition to a substantial will be bes- reputation gravely a defendant’s imprisonment, contact, which there is no issue as to sexual mirched. Where statutory rape than not to be the case likely is more only proof is not proof prosecutrix’s prosecutions, and, it of it guilt, absolutely dispositive the defendant’s time, the defendant only the same it is fatal to the defense 463(a)(3) section interpreted, would otherwise have. So fault, concept but renders only destroys absolutely context, presumption meaningless, statutory rape process. to due right innocence and the I dissent. respectfully