Owens v. State

724 A.2d 43 Timothy R. OWENS Maryland. STATE of 129, Sept. Term, No. 1997. Appeals Maryland.

Court of

Feb. Burns, Jr., E. Assistant George (Stephen Public Defender Harris, Defender, Forster, E. Nancy Public S. Assistant Pub- Defender, brief), Baltimore, lic on for appellant. (J. Bosse,

Ann Assistant Attorney Joseph N. General Cur- ran, Jr., General, brief), Baltimore, on Attorney appellee. BELL, C.J., ELDRIDGE, RODOWSKY,

Before CHASANOW, RAKER, JJ. WILNER CATHELL

CHASANOW, Judge. upon are called in this case to examine the consti

We law, tutionality Maryland’s statutory rape Maryland of Code (1957, 463(a)(3),1 27, § Repl.Vol.), interpreted Article State, this in Court Garnett v. 632 A.2d 797 (1993), a strict set be offense. For reasons indicated, statutory 1. Unless otherwise hereinafter all references are to (1957, Maryland Repl.Vol.), Code Article 27. below, to due Appellant’s rights that forth we hold were not and United States Constitutions Maryland under the when, being charged rape, with upon violated presenting from his defense prevented Appellant court trial years victim was above 13 reasonably believed the that he age.

I.

A. to the dispute. According in not in facts this case are facts, 11, 1997, officer police on April statement of agreed Timothy nighttime patrol a routine discovered conducting parked in the rear seat of a Owens and Ariel Correta Johnson asked, car, police told the officer dressing. Johnson When residence, years calling that was 16 old. After Johnson’s she that her correct date of birth was October he discovered old at the time of the incident. making years her making years him 18 old April Owens was born just the two had compiling the time. After evidence intercourse, charged was with sec- engaged sexual Owens 463(a), states in degree rape ond viоlation of which “A in the second pertinent part: person guilty degree person engages vaginal if the intercourse with * * * (3) person: years another Who is under performing years the act is at least four older than guilty the victim.” of a not proceed by way Owens elected facts, into agreed prosecutor statement of which the recited victim, asked, if disputed the record. It was not that “[t]he testify would also that she had told the Defendant that she was age.” charges, made a motion to

Owens’ counsel dismiss that the statute was unconstitutional in that it violated arguing process rights Owens’ due under the United States Constitu- tion Maryland Rights. and the Declaration Owens also that, Garnett, argued notwithstanding this Court’s decision the trial court should find that there was a reasonable mistake negates guilt. judge fact Owens’ The trial denied motion for of subsequent judgment

motion and also denied Garnett, that, noting age only under mistake of could acquittal sentencing. factor at the time of mitigating be used as a of judge guilty degree rape then found Owens second and him months of all time imprisonment, sentenced to 18 with but (12 days) probation. and 18 months of suspended, served offender, register was also ordered to as a child sex as Owens § In sentenc- required by testing. and submit DNA Owens, specifically age the court considered mistake of ing to the mitigating appealed Special factor. Owens Court, motion, on certiorari Appeals granted and this its own that court. before review

B. Garnett, Maryland’s statutory we addressed whether rape required prove law the State tо whether the defendant years than 14 younger age knew female victim was and by excluding the trial court erred evidence “that he whether believed, told, years had been that she was 16 old.” Garnett, In ruling 332 Md. at 632 A.2d that the defendant Garnett could not present evidence that he was that the defendant had reached 16 years told and believed 463(a)(3) § age, judge requires proof the trial ruled (1) intercourse; only vaginal three elements: that there was (2) was, fact, complaining years that the witness under 14 (3) four than age; the defendant was least older witness with whom he had sexual intercourse. complaining at 799. The trial court concluded 332 Md. at and, therefore, was a strict offense appeal, mistake of could not be a defense. On 463(a)(3), mens § argued express defendant which has no rea requirement, judicially should be to allow a interpreted age. reviewing defense of a reasonable mistake of After Garnett, statutes, legislative history Maryland sex crimes 332 Md. at 632 A.2d at we concluded: raised, considered, Legislature explicitly and then “[T]he any notion of a mens rea element with jettisoned explicitly respect complainant’s age enacting to the the law that 463(a)(3). light In the of such of current formed the basis action, conclude that inevitably must legislative we liability on its violators.” imposes law strict current Thus, Garnett, we held that 632 A.2d at 805. allow to refusing not erred in to Garnett the trial court had believed, told, in fact and evidence that he had been present Garnett, 332 old. witness was 16 complaining that the 584-86, holding that A.2d at 803-05. Our Md. at was mistake-of-age defense statute did not afford defendant knowl- rule in that “a defendant’s majority consistent with the of victim is not an essential element edge of the of a statutory rape requires of a statutory rape” “[p]roof and that that the proof an act of sexual intercourse and merely proof of Annota- prohibited age.” Campbell, victim is below the Cohn tion, Age as to Mistake or Lack Victim’s of Information Statutory Rape, 46 A.L.R.5th We Defense 463(a)(3). not, however, constitutionality of did address Although question we did not address the constitutional Garnett, that an accused requirement we noted that “[t]he criminal culpable have acted with a mental state is an axiom of In jurisprudence.” 332 Md. at 632 A.2d at 800. case, instant we consider whether the “axiom” we noted respect Mary Garnett is of constitutional dimensions with statutory rape particular, land’s law. we must determine legislature whether the exceeded its under the Four powers teenth Amendment of the United and States Constitution2 Articles 20 and 24 of the Declaration of Maryland Rights3 by from precluding Appellant raising mistake-of-age his defense. Constitution, 1,§ 2. The Fourteenth Amendment of the United States life, provides deprive any person liberty, state shall ... or "[n]o property, without due of law....” Maryland Rights, 3. The Declaration Article states: "That the trial facts, arise, lives, they greatest where is one of the securities of the People.” "[t]hat liberties and estate of the Article declares no man freehold, ought imprisoned to be taken or or disseized of his liberties or outlawed, exiled, or, manner, privileges, destroyed, or or or life, deprived liberty property, by judgment of his or but of his peers, phrase the Law the land.” The "Law of the Land” has II. Supreme Court has never addressed the

The United States ability present a defendant the constitutionality denying statutory rape. to the crime of On a mistake-of-age defense however, occasions, has articu- number finding within a criminal statute strong preference lated its expressly none has been included. a mens rea element where States, 246, 72 Morissette v. United 342 U.S. Appellant cites that “in proposition 96 L.Ed. 288 for the S.Ct. offense, of a criminal the State order to convict a defendant mental state.” Morissette had been prove culpable must stealing] charged “unlawfully, wilfully knowingly with government property when he took convert[ing]” range. Air casings practice bombing from an Force bomb 241-42, Morissette, 96 L.Ed. at that he ground his conviction on the challenged 292. He reason- present have able to the defense he should been Mor- that the shell cases had been abandoned. ably believed issette, 242-43, 248-49, L.Ed. at 292- 72 S.Ct. at 96 342 U.S. larceny the federal statute dis- assessing In whether the Court dis- requirement, with a criminal intent pensed policy favoring “universal and some persistent” cussed its Morissette, justify to 342 U.S. at punishment. mental element 243, 250-51, the light 72 96 L.Ed. at 293-94. S.Ct. theft, of intent for the crime of requirement common law’s -reversed the defendant’s conviction. Court States, 600, v. Similarly, Staples United 1793, (1994), interpreted the Court S.Ct. 128 L.Ed.2d requirement, Act a mens rea National Fireаrms to include a criminal conviction. The trial court had ruled that reversing prove did not have to that the defendant knew prosecution law,” equivalent process "due as used in the been held to be to Easton, 176, Incompetent, 214 Md. Fourteenth Amendment. Matter of 441, (1957). Supreme 447-48 United States Court 133 A.2d subject "practically authorit(yl” for the cases on the therefore are direct meaning Maryland provision. Northampton Corp. v. Wash. S.S. of the Comm’n, 677, 686, (1976). A.2d We therefore 278 Md. provisions together. address both brought that weapon with characteristics possessed he that the lower Reversing of the Act. prohibitions it within courts, argument the defendant’s accepted Court Supreme prove to required should have been government knew the the defendant a reasonable doubt beyond to weapon required be was an automatic weapon possessed he 619-20, 114 511 U.S. at Staples, under the Act. registered also States 128 L.Ed.2d at 624-25. See United S.Ct. 464, 472, Video, Inc., 64, 78, 115 513 U.S. X-Citement v. “knowingly” that the term (1994)(holding 130 L.Ed.2d knowledge that the materials obscenity required statute an minors). similarly We have been depictions included sexual an intent of the to read into criminal statutes reluctant requirement. a mens rea See State legislature forego McCallum, 451, 456-57, 583 A.2d 252-53 driving suspend with a (1991)(interpreting prohibiting statute State, element); Dawkins v. ed license to include a mental (1988)(observing that the Md. “statutory strongly part indicates an intention on the scheme scienter as an element of Assembly require of the General and controlled [possession para of cоntrolled substances offenses”). phernalia] strongest support finds his

Appellant perhaps requirement absence of a mens rea in a criminal statute is California, violative of due Lambert 355 U.S. denied, reh’g 78 S.Ct. L.Ed.2d 228 410, 2 L.Ed.2d 419 The defendant Lambert violating registration was convicted of a Los felon Angeles addressed whether due pro- ordinance. The to a “applied cess was violated when the ordinance was knowledge duty register, who no actual of his ha[d] probability no of the of such showing [was] where made Lambert, 227, 242, at 78 at 2 knowledge.” 355 U.S. S.Ct. finding L.Ed.2d at 231. In that the defendant’s due violated, rights emphasized were the Court that the conduct Lambert, 228, U.S. at illegal “wholly passive.” made 355 [was] 243, 2 78 L.Ed.2d at 231. “It is unlike the commission S.Ct. acts, or the failure to act under circumstances should of his deed.” Id. consequences alert doer

672 requirement its for a mens rea

Despite preference holding criminal statutes and its Lam interpreting when bert, “[Supreme] general Court has never articulated Texas, rea.” Powell v. 392 constitutional doctrine of mens 2145, 2155-56, 4254, 514, 535, 20 L.Ed.2d 1269 88 S.Ct. U.S. (1968). Rather, limits, constitutional states within certain criminal offenses defining “create strict criminal liabilities California, element of scienter.” Smith v. 361 without 217, 205, (1959), 147, 150, 215, 209 80 S.Ct. L.Ed.2d U.S. denied, 399, 80 S.Ct. 4 L.Ed.2d 383 reh’g 361 U.S. upholding liability of the cases strict statutes involve Several statutes, serve as “public “whereby penalties [an] welfare” Dotterweich, v. regulation.” effective means of United States 277, 280-81, 284-85, 134, 136, 138, 88 L.Ed. 320 U.S. S.Ct. misbranding criminal sanction for (1943)(approving drugs “though wrongdoing totally consciousness of be want Freed, 601, 609-10, 91 ing”); United States v. 401 U.S. denied, 1112, 1117-18, (1971), 362-63 reh’g 28 L.Ed.2d that the (1971)(holding U.S. 91 S.Ct. 29 L.Ed.2d 690 imposes National Firearms Act criminal on grеnades despite ignorance illegality hand one’s possessing Balint, possession); such United States (1922)(similar 252-54, 301, 302-03, 42 S.Ct. 66 L.Ed. holding). however, Court, Supreme suggested

The has never only for liability may imposed regulatory strict criminal be Feola, example, offenses. For United States U.S. interpret Court require ed a federal assault statute to not include a mens rea identity of the victim of a conspiracy. ment as to as conspiracy Court held a criminal defendant liable knowledge sault a federal officer when the defendant had no subject officer him that the individual was a federal who would Feola, 694-95, jurisdiction. to federal criminal also has S.Ct. at 43 L.Ed.2d 558-59.4 The Court among Resolving a conflict the circuits as to the mental element conspiracy charge, explicitly necessary bring a

673 for the strict imprisonment upheld convictions reasonably be- even when the defendants bigamy, crime that would have made the had a divorce they lieved valid Carolina, v. North 325 lawful. Williams marriage second 1577, (1945), 226, 1092, 1099, 1586 238, 89 L.Ed. 65 S.Ct. U.S. (1945). 895, 1560, denied, 89 L.Ed. 2006 U.S. 65 S.Ct. reh’g 325 have held that Finally, and the Supreme this Court conclusive, that create under certain circumstances statutes process. “[P]erma- violate due presumptions irrebuttable long have been disfavored presumptions nent irrebuttable Kline, 412 v. U.S. under the Due Process Clause.” Vlandis 446, 2233, 63, 441, 2230, L.Ed.2d 68 93 S.Ct.

Vlandis, a Connecticut statute Court invalidated affecting tuition presumption that created an irrebuttable statute, a student who university. rates a state Under or a school while a non-resident who applied to Connecticut a year applying a non-resident in the before remained was he long for rate for as or she purposes non-resident tuition Vlandis, 443, a student. 412 U.S. remained 2232, Due Process 37 L.Ed.2d at 66. The Court said from Clause forbids state an rates on the of a

“denying] individual resident basis nonresidence, permanent presumption irrebuttable universally necessarily when that is not true presumption fact, and when has a reasonable alternative the State making means crucial determination.” Vlandis, 2236, 452, 412 U.S. at 93 S.Ct. at 37 L.Ed.2d at LaFleur, v. See also Cleveland Board Education 632, 647, (1974)(public 94 S.Ct. L.Ed.2d physically women were policies presumed pregnant school Illinois, teaching); Stanley unfit for classroom 405 U.S. rejected Judge light” analogy, Hand’s which declared Learned "traffic " conspiring past light guilty to run traffic [a 'one cannot be ignorant], agree past whose one one cannot to run existence ” light past.’ light supposes unless one that there is a run United Feola, 671, 689, 1255, 1266, States v. 95 S.Ct. Crimmins, (2d (1975)(quoting United States v. 123 F.2d Cir.1941)). 31 L.Ed.2d 557-58

(1972)(statute presumed that all unqual- unmarried fathers ‍​‌‌​​‌‌‌​​‌‌‌‌​​​‌‌​‌‌​​​‌​​​​​​‌‌​​‌​‌‌‌​​​​​‌​‍are children). ified to raise their similar

Applying Mahoney Byers, test A.2d 600 this Court struck down a rule promulgated the Maryland Racing Commission as the Maryland violative of rule, of Rights. designed penalize Declaration to horse drugging trainers for horses within the hours prior to racing, prohibited persons from or “knowingly carelessly” of permitting administering drug. Mahoney, the 187 Md. at 83, 48 602. provided A.2d at The rule then a positive that test of horse or day saliva urine on the of race “shall be knowledge conclusive evidence either that there was of the fact ... or he of guilty that was Mahoney, carelessness.” Md. at 48 A.2d at that, 602. We observed because there was no requiring keep rule trainers to watch their over horses day in night prior race, and the 48 hours to the of a start air,” presumption thus, the rule “out of arose the thin we held the conclusive presumption Mahoney, invalid. Md. at 48 A.2d at 604.

III. outset, At the we note that our decision here is not Maryland’s concerned with the wisdom of of policy imposing strict liability criminal on who engage those in sexual inter course with children age under Absent any constitutional prohibition, is “legislative it within power to define crimes State, and to punishment.” fix their Scarlett Md. denied, cert. L.Ed. Our only consideration is whether that process requires due Owens be to allowed defend charge statutory on rape grounds he that reason ably believed that the victim was above the of 13. age

An overwhelming majority courts confronted -with a challenge statutory constitutional have rape laws held that denying a defendant a mistake-of-age a statutory defense process rights.5 him of We his due deprive rape case does due which has held that only court one are aware and that statutory rape, defense to mistake-of-age mandates a federal, state, constitu and not on holding be based appears (Alaska Guest, See State 583 P.2d 836 analysis. tional rule 1978).6 majority from decline to deviate We Garnett, intent, determined legislature’s uphold the pro crime. due liability strict While make the legis limitations on undoubtedly рlace some cess concerns crimes, reasons ability to create strict lature’s 463(a)(3) below, those we falls within forth find set limits.

A. Appeals support finds Appellant little for the proposition Court decision United States criminal constitutionally required for a mental element is involved. liability, penalties when are even substantial argument defense mistake support of his the constitutionally required, Appellant contends Su- following reject specifically The cases the contention that constitution 5. requires admitting to a process al due evidence as defendant’s reason statutory rape Stokely, age prosecution: v. 842 able State mistake banc); Ransom, (Mo.1992)(en v. 942 F.2d 775 S.W.2d 77 United States 897, denied, 1042, (10th Cir.1991), cert. 502 116 L.Ed.2d U.S. 14, (Neb. (1992); 239 473 420 Campbell, 799 State v. Neb. N.W.2d denied, 1991); Brooks, (9th Cir.1988), 841 268 cert. United States v. F.2d 2887, Cash, 1227, (1988); People v. 487 108 101 L.Ed.2d 922 S.Ct. Miller, 230, (Mich.1984); 351 822 v. 419 Mich. N.W.2d Commonwealth (Mass.1982); Tague, 463 v. 310 385 432 N.E.2d State Mass. Perrin, (Iowa 1981); 403 119 A.2d N.W.2d 209 Goodrow v. N.H. (N.H. 1979); (1st Cir.1973). Moriarty, 864 484 F.2d 1034 Nelson interpreted constitution more Alaska Court has its state Rice, expansively the 626 P.2d than federal constitution. State (Alaska 1981)(discussing duty develop to 112 "concomitant court's Constitution”). rights As one commen- constitutional under the Alaska observed, interpretation state tator has this of the constitution "enables interpret require Alaska due clause to a mens rea its own [statutory degree rape], element for second sexual abuse notwithstand- ing uncertainty concerning demands of the United States Reiss, Benjamin Requirements Mens Constitution.” L. Alaska’s 377, Rea for (1992)(footnotes omitted). Statutory Rape, 9:2 Alaska L.Rev. 389 676 Court,

prеme in Morissette its and X-Citement Video deci sions, Court, Garnett, this in our and decision misinterpret which, law, ed appellant argues, the common did allow for a mistake-of-age reasonable defense statutory Authori rape. whether, law, ties apparently are divided as to at common mistake-of-age to statutory rape permitted. defense was A stated, number of example, courts have “statutory rape regarded universally was as a strict liability offense until Brooks, well century.” into twentieth United States v. 841 (9th Cir.1988), denied, F.2d cert. (1988). Garnett, See also A.2d at (noting “traditional view of crime”).

statutory rape as a strict liability Conversely, other that, explained authorities have the early under common law statutes, and English mistake of was a permissible de fense to rape. Larry Myers, See W. Reasonable A Age: Mistake Needed to Statutory Rape, 64 Defense 105, 109-10 (1965); Garnett, atMd. 605-06 n. Mich. L.Rev. (Bell, J., A.2d at 814 n. 14 dissenting). Appellant’s As states, Commentaries, brief Blackstone’s widely accepted as law, authoritative on English explain criminal “to consti laws, first, against be, tute a crime human there must a vicious will; secondly, an unlawful consequent upon act such vicious will.” William Blackstone, Commentaries It is not us necessary for to resolve the apparent dispute as whether, law, at common a mistake-of-age to statu- defense tory was permissible. Regardless of the status law, defense at common we have determined that our statute defense, does mistake-of-age not include a cases simply do not suрport proposition that due process man- dates that the mistake-of-age Significant- defense be allowed. ly, our own cases and the Supreme Court cases that articulate the “universal and persistent” policy mens favoring a rea Morissette, component 250, for criminal liability, 342 at 72 U.S. 243, 293, S.Ct. at at 96 L.Ed. interpretations involve of state statutes, or federal criminal interpretations of Due See, e.g., 604, Process Clause. 114 Staples, 511 U.S. at S.Ct. 1796, at 128 L.Ed.2d at 615 that (noting its turned decision McCallum,, construction”); of upon question “a driving with 455-57, a (interpreting A.2d at 252-53 Md. at statute). suspended license of mens rea favoring inclusion a

In to of policy contrast its statute, interpreting when a interpreting element when endorsed Court has often Due Clause the Process Lambert, liability. In the Su- of criminal strict concept a rejected that vi- Blackstone’s view explicitly Court preme crime, alone to constitute conduct necessary cious “is will sufficient. of the doer is often regard to the intent without in declare an offense the lawmakers to There is wide latitude knowledge diligence from its and to exclude elements 242, 228, Lambert, 355 U.S. S.Ct. definition.” omitted). (citation concluding In that L.Ed.2d at knowledge the assault victim need not have defendant Feola, the court observed laws agent was a federal it judgment that is liability “embody the social imposing strict in conduct that intentionally engages punish fair to one who others, or the though no risk is intended creates a risk even own, actor, completely unaware through no fault his risk.” 420 U.S. at the еxistence 1267, due rejecting In the defendant’s 43 L.Ed.2d at Williams, bigamy statute process challenge concluded: for an act as a objection punishment “The so, it involves a making of the facts ignorant crime when has more than once been denial of due of law particularly vindicating public policy overruled. its integrity important bearing upon as that one so life, punishing particular may provide acts family State peril who them do them at his and will that ‘he shall do shall ignorance.’ heard faith or plead good not be defense Balint, S.Ct. United States v. [42 (1922) ], quoting Shevlin-Carpenter 66 L.Ed. Minnesota, 57, 69, 70, Co. v. [30 (1910) ].” L.Ed. 678 238, 1099,

325 U.S. at 89 L.Ed. at S.Ct. 1586.7 do Nor we believe that the of 20 years imprison risk ment or the trial requirement court’s the defendant a register as “child sex offender” renders unconstitutional Maryland’s statutory rape law.8 While courts have considered the substantiality penalty imposed of the statute in determining element, whether a statute includes a mens rea they have done so for purposes statutory construction and not purposes analysis. of constitutional example, For McCallum, 457, 253, 321 Md. at 583 A.2d at we stated that “the nature of the ... penalty give[s] some indication that the Legislature did not a ‘public intend this to be [strict welfare’ Likewise, liability] offense.” Supreme Court’s decision in Staples, which discusses the of the severity penalty length, penalty only considered as a factor interpreting legisla tive “a intent. The Court noted that severe penalty a ... tending factor to suggest Congress did not intend to eliminate a mens rea Staples, 511 U.S. at 618- requirement.” 19, 1804, Moreover, S.Ct. at L.Ed.2d 624. no gave indication that Congress would have exceeded any constitutional limits had it made the National Firearms liability Act a strict statute.9 upholding

7. We note that in addition the strict statutes cited above, States, 246, Court in United Morissette v. dicta, apparently accepted 96 L.Ed. 288 that, validity liability statutory rape of strict laws when it observed developed, requirement law "[ejxceptions common has [to the of a offenses, guilty rape, mind] came to include sex such as in which the age despite victim’s actual was determinative defendant's reasonable girl belief that the had reached of consent.” 342 at 251 U.S. n. S.Ct. at n. 96 L.Ed. at 294 8. See n. also United States v. X- Video,Inc., Citement 72 n. 469 n. (1994)(quoting Morissette). 381 n. 2 footnote 8 from decision, whether, 8. not this we do reach the issue had the trial judge years in this case Owens sentenced to the maximum of 20 imprisonment, such process a sentence would violate Owens’ due Eighth rights. Amendment Indeed, though felony possible even a violation constituted with the incarceration, dissent, Stevens, sentence of his Justice Blackmun, joined by disagreed majority’s interpreta- Justice with the due does that constitutional Having explained laws, such as requirement that criminal universal impose element, law, mens rea we include a statutory rape Maryland’s of the Due Process requirements specific turn to more now Clause.

B. is persons of due that A tenet fundamental have reasonable experience ordinary intelligence they are that prohibited what so to know actions opportunity Bowers v. according to the law. their conduct conform 341, State, 120, believe 115, A.2d 345 We 389 constitutionally law statutory rape provides Maryland’s notice. sufficient convicted, has sexual been action for which Owens 14, for involves conduct with a child under

intercourse run of the might on afoul reasonably notice which Owens was Thus, therefore, he could have avoided. and, conduct that law the 463(a)(3) city in the ordinance § little common with shares ordinance struck in Lambert. The Court invalidated person for made it a crime convicted down in Lambert five without days more than Angeles remain in Los 242, Lambert, 226, at at registering. 355 U.S. S.Ct. ordinance, the Court striking at 230. down the L.Ed.2d “wholly and the lack notice emphasized defendant’s Lambert, at 355 U.S. nature of conduct. passive” said, 243, 2 at The Court S.Ct. L.Ed.2d at acts, or the is the commission of register] unlike “[Failure circumstances that should alert doer failure to act under * * * of [the deed. Violation consequences to the his any activi- unaccompanied by municipal provisions code’s] whatever, city being ty presence test. mere component, arguing requiring rea that the a mens tion of statute imposing public was statute strict National Firearms Act welfare States, Staples S.Ct. liability. United (1994)(Stevens, J., dissenting). 128 L.Ed.2d Moreover, circumstances which might inquire move one to necessity registration as to the completely lacking.” are Lambert, 243, 2 355 U.S. at at 231-32. Lambert,

Unlike the ordinance the sexual intercourse 463(a)(3) hardly can proscribed by pas be characterized as sive; it activity gives involves conscious which rise to circum stances place reasonable on notice of potential (Iowa illegality. State Tague, See 310 N.W.2d 1981)(concluding statutory case “[o]bviously [de conduct was active in nature he fendant’s] and was alerted to acts.”). possible consequences criminal of his Our 1993 Garnett, decision in longstanding prohibition state’s on minors, Maryland sexual intercourse with proscrib laws ing other sexual put behavior10 defendant on notice of the Garnett, potential risks of miscalculating the victim’s age. J., (Eldridge, Md. dissenting)(“[T]he ordinary defendant rape prosecution] [a is or ought to be aware that there is a that young person risk the is consent.”). age not above the of See also State 842 Stokely, (Mo.1992)(en 77, banc)(“[Statutory rape clearly S.W.2d 81 law] potential notifies concerning offenders that mistake a victim’s is not valid age a defense and will not be a considered Freed, court.”); 609, 1118, 401 at 91 S.Ct. at U.S. 28 L.Ed.2d at 362 (observing hardly surprised that “one would be learn to act”). possession grenades of hand is not an innocent Moreover, observed, Supreme as the Court has in the case of statutory “the rape, perpetrator confronts underage the victim personally and reasonably required be to ascertain that Video, age.” 2, victim’s 513 at 72 X-Citement U.S. n. 115 2, (dictum). Indeed, S.Ct. 469 n. 130 L.Ed.2d at n. 2 381 it imagine defendant, hard a is to when necessarily years four 463(a)(3), than § older the victim under “morally would be See, e.g., (prohibiting sodomy authorizing § up 10. 553 and sentences of conviction); yeаrs upon ten (prohibiting pervert- 554 unnatural or practices authorizing potential ed sexual a sentence ten and. conviction). upon in intercourse with sexual engages he or she when blameless” at 211. Tagne, 310 N.W.2d 13. young child as a C. in its statu- enacting Maryland’s interest next consider

We to that interest. law suited whether the tory law and rape physi- promoting in purpose state’s conclude We is a one compelling of children and mental health cal purpose. this accomplish designed is properly the statute enacting in discretion generally have broader Legislators they than of children health and welfare laws to promote recognized that the long “The Court has have for adults. respects.” many unique the law is minors under status of 633, 3035, 3043, Baird, 622, U.S. 99 S.Ct. Bellotti v. denied, reh’g L.Ed.2d (1979). Indeed, has “sus

L.Ed.2d and emo physical protecting aimed legislation tained operated when the laws have well-being youth tional even New constitutionally rights.” protected area of the sensitive Ferber, S.Ct. York 1113, 1122 promoting the welfare compelling The state’s interest justification disallowing provides powerful children prevention “The mistake-of-age rape.11 defense of children constitutes exploitation of sexual abuse Ferber, objective surpassing importance.” government 73 L.Ed.2d at 1123. case U.S. at liability statutory testing constitutionality strict law significance recognizing is unanimous laws children, by activity involving harm caused sexual potential by statutory rape we the interest served the 11. Because find interest, we proteсtion compelling need of children—is statute—the liability strict statute could be not decide whether this other upheld compelling. if the state is less than interest 682 with risks potential physi

even their consent.12 These involve harm, diseases, including cal the risk of especially venereal the virus, trauma, HIV even permanent damage to a child’s organs. Statutory rape may help prevent laws pregnancies, social, medical, carry “significant which and economic conse child, quences for both the mother and her and the State.” Court, 464, County Michael M. v. Sonoma Superior 450 U.S. 470, 1205, (1981)(footnote 1200, 437, 101 67 L.Ed.2d 443 omitted).

Perhaps significantly, engages most an adult who in sexual activity may with a child cause the child psychological serious damage, regardless' maturity chastity. of the child’s or lack of will be always Since the adult almost more physically mature experienced matters, the sexual risk of sexual exploita- Moreover, significant. tion is the effects ‍​‌‌​​‌‌‌​​‌‌‌‌​​​‌‌​‌‌​​​‌​​​​​​‌‌​​‌​‌‌‌​​​​​‌​‍on children of sexual adulthood, often the into exploitation follow child with societal 12. We observed in Garnett that the of traditional view designed "protect are young a strict crime is that such laws to adults, exploitation persons dangers by of from sexual loss of and, chastity, physical injury, girls, pregnancy.” the case of 587, 632 A.2d at 805. This observation is consistent with that of holding have other courts which considered the state's interest in those See, engage strictly e.g., who in sexual conduct with minors liable. State, 1084, (Fla.1994)(“ ‘[A]nytype v. 640 Jones So.2d sexual involving upon rights conduct a child an constitutes intrusion child, [Sjociety whether or child consents ... has a compelling intervening stop (quoting interest in such misconduct.’ State, 404, denied, (Fla.1991), Schmitt So.2d 410-11 cert. Ransom, (1992)); 112 S.Ct. L.Ed.2d 942 F.2d ("[The statutory rape protects law] children from sexual abuse older, placing to a risk mistake as child’s on more an mature engage activity may who chooses to one sexual with who be (Citation young omitted); enough purview.”) to fall within statute's Robinson, (Pa.1981), Commonwealth 497 Pa. dismissed, appeal (1982)("The unlawful, primary prohibiting consideration in consensual underage traditionally intercourse with an female been has attributed to legislative protect unsophisticated desire to those who are too themselves.”); Gonzales, protect People v. 148 Misc.2d (Co.Ct.1990)("[I]t proper N.Y.S.2d 361-62 for the state to disease, prospects consider the especially transmission venereal virus, HIV permanent damage trauma and which be caused emus, physical exploitation structures such as and the and sexual youth.”). abuse our has Jersey As the New consequences as well. recognized: victims, particularly heavy on its toll assault takes

“Sexual a number of research indicates Recent on children. and depression chronic problems—including psychosocial adjustment, substance social poor anxiety, isolation physically abuse, behavior, and involvement suicidal or vic- aggressor relationships as either sexually abusive as children among adults molested more common tim—are Vic- experienсes. no such childhood among those with than ability to impaired an can suffer tims sexual abuse others, mak- motives and behavior critically evaluate especially An to revictimization. ing them more vulnerable strong is its abuse finding child sexual disturbing about psycho- due to the pattern; particular, intergenerational abuse, boys have sexually abused logical impact their own boys turn likely non-abused to to be more than been found children, and generation the next against into offenders to mothers of girls likely are more become sexually abused adult male And show that who are abused. studies children behavior, is asso- aggression, sexual aggressive particularly Thus, of childhood sexual abuse. ciated with the trauma caused to the personal trauma from the substantial apart crimes, against children exact of such sexual crimes victims heavy well.” social costs as Poritz, (N.J.1995)(quoting

Doe N.J. omitted)). (citations Brief for the United States 5-8 children overwhelming protecting The state’s interest interest individual outweighs from these risks children near engaging have in in sexual relations with issue, it Although need reach of consent. we right constitutional held that a has no has been intercourse, marriage, at least outside of engage sexual regulation. frequently subject state sexual conduct Cf. Hardwick, 92 L.Ed.2d Bowers denied, reh’g criminalizing Georgia statute (1986)(upholding L.Ed.2d 779 of sodomy). Many the act states still criminalize fornication13 Furthermore, and other given sexual behavior.14 the substan children, tial risks of exploitation sexual abuse and pоlicies public behind appear signifi laws to be than, stronger one cantly take example, public policy of promoting integrity family “the through life” the crime of defendants Williams bigamy, for in which constitu were tionally imprisoned despite the absence of criminal intent. Williams, 238, 1099, 325 U.S. at 65 S.Ct. at 89 at 1586. L.Ed. Statutory rape may laws necessary legislators be deemed to protect “immaturity those whose prevents and innocence from appreciating them the full magnitude consequences Cash, People v. 230, of their conduct.” 419 Mich. 351 N.W.2d (Mich.1984). 822, 826-27 statutory

The crime of implicate also does not rights other constitutional heighten our level inquiry. If, First example, Amendment are rights implicated by a statute, may strict we be more find likely to Smith, in statute violation of due process requirements. See 153, 218, 361 at S.Ct. at 4 U.S. 80 L.Ed.2d at 211 (interpreting obscenity an to statute include a rea requirement mens to “imposing] upon order avoid a restriction the distribution protected as constitutionally literature”); well as obscene Video, X-Citement 78, 472, 513 115 U.S. S.Ct. at 130 the term (interpreting “knowingly” in a federal statute child regulating pornography to include knowledge minors). that the materials involve The instant does not case Amendment; implicate rather, the First statute issue See, (1996); e.g., § § 22-1002 13. 16-6-18 Ann. D.C.Code Ga.Code Ann. (1996); (1987); ¶ § chapter 18-6603 720 5/11— Idaho Code Ill.Ann.Stat., (Smith-Hurd 1993); (West 1990); § Ann. ch. Mass. Laws Gen. (West 1987); § § 609.34 97-29-1 Minn.Stat. Ann. Miss.Code Ann. (1994); (1993); § N.C. Gen.Stat. §§ 14-184 16-15-60 S.C.Code Ann. (Law.Co-op.1985); (1995); § 76-7-104 Utah Code Ann. Va.Code Ann. (Michie 1996); § § 18.2-344 W. Va.Code 61-8-3 Maryland legislature 14. The policy has enacted to other laws further the goals § § of Art. (prohibiting selling 463. See 416B or the offering materials); explicit (criminal- sexually § to sell to minors 416C izing exhibiting sexually explicit minors). the act pictures motion con- regulation of sexual permissible constitutionally involves duct. mistake-of-age de disallow a decision to legislature’s protecting its interest rape furthers statutory

fense if the accomplished law were not be ways that children 463(a)(1) elimi Precisely because such a defense. to allow prove potential for the state to the need nates to recognize the failure or was unreasonable offender knew “may reasonably the statute age victim under that the was United States have some deterrent effect.” expected be denied, Ransom, cert. F.2d (1992); also People see 116 L.Ed.2d (Co.Ct. Gonzales, Misc.2d 561 N.Y.S.2d 1990)(“[T]he violating consequences criminal contact limit deter sexual between present under law minors.”). older, adults, naive more and often sophisticated risk of an error accomplished by placing Deterrence partner’s age judgment potential in as to a sex with Moreover, though offender. even a criminal statute potential could dispenses any requirement with mens rea unconsti conduct, tutionally infringe upon Liparota innocent cf. 2084, 2088, States, 105 85 United (1985)(construing statute to include mens rea particularly “is where ... to appropriate interpret element range a broad statute otherwise would be criminalize conduct”), in we that the statute apparently innocent believe upon not intrude innocent conduct to the question here does Where doubt outweighing extent the state’s interest.15 Maryland's statutory rape likely law is less than number of other statutes sexual conduct since the victim in state to reach noncriminal age, Maryland other have must be under while states adopted ages of These other have withstood older consent. statutes challenges greater potential to despite their affect non constitutional Barlow, See, e.g., State 160 Vt. criminal sexual conduct. (Vt.1993)(under 16); age Campbell, Neb. N.W.2d A.2d 1299 Brooks, (under 16); Miller, (under 16); age 841 F.2d 268 exists as to a potential partner’s sexual age, abstention from intercourse is readily available solution:

“The defendant a statutory rape case does not lack the ability to comply law; with the he must simply abstain from sexual intercourse when there is even the possibili- remotest ty that his partner is below Moreover, age. unlike the defendant who reasonably believes his wife to be dead, remarries, and is convicted of bigamy, the man who contemplates intercourse with a partner of indeterminate age can resolve doubts favor of compliance with the law without sacrificing behavior society considers desir- able---- [T]he maximization of deterrence for socially undesirable behavior sometimes require the deterrence of socially neutral conduct as well.” Cases, Recent 1257, 1258-59 (1965). 78 Harv. L.Rev. The state’s interest in protecting children signifi- would be cantly if undermined we were to find the statute unconstitu-

tional. previously We have recognized that the state legisla- ture’s interest in furthering objective its effectively most helps justify a strict liability statute. State, Ford v. 37 A. we considered a former Maryland statute that made it a crime for one to possess “any book, list, slip or record the numbers drawn in any lottery.” provided statute for a fine of up to one year $1000 and/or of imprisonment. . The defendant argued that his conviction under the statute was unconstitutional because it did not allow him to present evidence showing that he had no knowledge that the papers his possession were subject to the statute. We acknowledged that the papers, which we “utterly deemed unintelligible one not business,” Ford, learned Md. at 37 A. at may not give notice to an innocent person illegal character, their but rejected we the constitu- tional argument, concluding that the statute’s lack of a mens (under 16); Goodrow,

Mass. age 432 N.E.2d 119 N.H. (under 16); Drake, age A.2d 864 (Iowa State v. 219 N.W.2d 492 1974) (male 17); Nelson, over 25 and female under 484 F.2d 1034 (under 16). age Due Process Clause. with the was consistent requirement rea thwarting growth the strong interest noted the state’s We business, “the (then) observed that lottery illegal of the the articles a crime possession mere has made the statute lottery up break the way is most effectual because Ford, A. at 175. Md. at business.” fur effectively statute Similarly, deterring from sexual interest. Aside significant state thers defense, children, disallowing mistake-of-age activity with inevitably emotional statuto avoids risk that state child’s unjustifiably appearance on the trial will focus ry rape is that because problem “The obviоus maturity. and level rate, by the time of grow rapid tend to at a early adolescents boy have girl relatively undeveloped young trial Cash, into a woman or man.” 351 N.W.2d young transformed made assertion that he had a reasonable at 828. Defendant’s as a age the victim’s is best considered regarding mistake is what occurred sentencing, circumstance at which mitigating in this case. See id.

D. 463(a)(3) unconstitutionally § cre- Appellant contends victim’s mental state presumption an that the ates irrebuttable 14 are incapable irrelevant and that children under is disagree. consenting to sexual intercourse. We 463(a)(3) First, simply prohibits note that we years of age” with one who is “under sexual intercourse the act is at least four “performing when to the simply than the Intent not relevant older victim.” is concluded, As has charges. “[h]ere the Iowa (or, presumption correctly, are not with a more dealing we inference) at all. concerned with presump The statute it flatly prohibits tions or inferences. Rather the act defen (Iowa Drake, dant committed.” State N.W.2d 1974). Hill, also N.J.Super. See State does not 1336 (N.J.Super.Ct.App.Div.1979)(“Presumption statute.”). violation For the play any part above, reasons stated legislature may constitutionally pro- hibit sexual intercourse with a age child below 14 in order to protect physical child’s and mental health and welfare. Maryland’s Since statutory rape directly statute prohibits vaginal intercourse with children below age without regard to the ability consent, minor’s it does not utilize criminal presumption that unconstitutionally burdens the de- fendant.

Second and relatedly, under the statutory scheme of 463(a)(3), § age is not used to determine any element of the crime beyond Thus, the age itself. it is distinguishable from LaFleur, Vlandis, Court’s decisions in and Stan ley, as well as our decision in Mahoney. II, See Part swpra. In cases, each of these the provision held to violate due process took one fact and used it to justify separate, factual conclusion, and, moreover, the presumed fact bore little or no relation to the objective LaFleur, of the law. In the public policies school took the fact of pregnancy presumed pregnancy made women physically unfit for classroom teach ing. U.S. at 94 S.Ct. at 39 L.Ed.2d at 64. The statute in question in presumed Vlandis that one who applied to a state school while living out-of-state was a non-resident regardless of facts suggesting otherwise, for as long as that individual remained a 449-50, student. 412 U.S. at 2235, 37 L.Ed.2d at 70. In Stanley, the statute conclusively presumed that all unmarried fathers unqualified are to raise their children. 405 U.S. at 92 S.Ct. at 31 L.Ed.2d at 558. In Mahoney, the regulation invalidated specifically stat presence ed that drugs in saliva or urine “shall be conclu sive evidence” that the trainer had knowledge was careless in allowing the drugged. horse to be 187 Md. at A.2d at 602. contrast, 463(a)(3) § sharp does presume

that anyone engaging sexual intercourse with one under the of 14 so, intended to do or that the victim is incapable rather, consenting; protects statute children from sexual conduct, regardless of whether the defendant intended to age 14 and with one under conduct engage prohibited in the the statutes consent. Unlike purported to the victim whether 463(a)(3) unconstitutional, not take as does stricken down living when for admission application an (pregnancy, one fact test) father, drug out-of-state, positive or a the unmarried (fitness for conclusion separate to arrive at use that fact status, chil- raising resident fitness teaching, classroom knowledge to horses with dren, administering drugs of or the 463(a)(3) carelessness). words, not require § does In other years under 14 old in intercourse with one engage intent to of the victim’s simply intent because presume and then sexual intercourse without consent prohibit nor does it age; age incapable 14 are that children under presume and then result, presumption doc- consenting. As a the irrebuttable not apply. trine does the statute

Finally, agree even if we were to age 13 and presumption that children creates an irrebuttable making an informed decision about incapable under are intercourse, nexus between to consent to sexual whether in protecting the state’s interest children presumption process due concerns.16 enough is sufficient to ameliorate Eidson, Statutory Rape Constitutionality Rita See (1980) Laws, (concluding that the L.Rev. U.C.L.A. may apply only doctrine presumption irrebuttable 16). consent,” i.e., age age Basing high laws “with incorporates statutory rape explicitly an irrebuttable 16. New York's law Gonzales, presumption, upheld People v. which was nevertheless supra. that it element ... that the sexual The statute declared "is an victim,” consent of the and it further act was committed without provided incapable is deemed of consent when he is: "[a] (a) 359-60. The less than seventeen old.” 561 N.Y.S.2d at argued presumption that children under defendant that the irrebuttable “unconstitutionally presumes age consent an element of the 17 cannot People obligation to crime which the would otherwise be under an prove by proof beyond at 360. The a reasonable doubt.” N.Y.S.2d presumption court determined that created the statute "is expressed equivalent to a substantive rule of law terms rules of consent under seventeen is not an evidence.... Lack of true of those (citations element of the substantive crime.” 561 N.Y.S.2d at 362 omitted). ability to to sexual on one’s consent intercourse the individu- “wholly al’s of 14 is not meeting age unrelated” to the children, objective protecting state’s minor and it is hard to when the imagine presumption “operate would to effectu- protecting ate the State’s asserted interest” in children from Vlandis, abuse, exploitation early pregnancy. sexual Therefore, at 69-70. even if the doctrine presumption apply, irrebuttable would we 463(a)(3) could not conclude that is “so arbitrary as Vlandis, constitute denial of due of law.” 93 S.Ct. at 37 L.Ed.2d at 70. IV. sum, no placing we find constitutional barriers to on

individuals in sexual engaging intercourse the risk that their partner regardless sexual is below of the reasonable ness of their belief otherwise. The state has an unparalleled protecting interest in children from the potentially devastating exploitation, statutory effects of sexual abuse and and the rape limits, Though statute furthers that interest. it is not without establishing age the at which the applies law legislature, a task for the not the If legislature courts.17 463(a)(3) decides, § so it can amend to allow for a mistake-of- or it age age defense lower the at which the statute applies liability the strict standard. THE

JUDGMENT OF CIRCUIT COURT FOR BALTI- MORE AFFIRMED. BE PAID BY COUNTY COSTS TO APPELLANT. Robinson, that, (concluding although

17. See 438 A.2d at 967 n. 5 mistake-of-age Model Penal Code allows a defense if the victim is ten or older, "certainly legislature may, consistently with considerations process, public policy due a determine as matter of that the still tender J.D.G., age 786, appropriate.”); of fourteen is In re Interest 498 S.W.2d (Mo.1973) ("The age selection female factor in a function.”); Drake, statutory rape basically legislative statute is a (same). N.W.2d at 495 ELDRIDGE, J., only. concurs the result CATHELL, BELL, C.J. and J. dissent.

ELDRIDGE, Judge, concurring. result, join I I do not Although ‍​‌‌​​‌‌‌​​‌‌‌‌​​​‌‌​‌‌​​​‌​​​​​​‌‌​​‌​‌‌‌​​​​​‌​‍concur with Court’s majority opinion. State, 571, 584-585, A.2d

In Garnett second de- Maryland’s this Court held “that 803-804 offense that does not gree rape statute defines strict ” .... require prove the State to mens rea Garnett 27, 463(a)(3), § Art. “makes no reference went on to state that belief, knowledge, or other state of mind” and the actor’s Assembly “this silence as to mens that the General intended rea ...” 332 Md. at 632 A.2d at 804. The Garnett “an[y] concluded that element of mens rea” would opinion 332 Md. at Assembly. have to be enacted General 632 A.2d at 805. Garnett, 588-592, dissenting opinion 332 Md. at 805-807, disagreed

A.2d at I with the Court’s view “that the mens rea at all.” 332 Md. at requirement statute contains no I “that an Although agreed ordinary 632 A.2d partner defendant’s mistake of his or her sexual about 463(a)(3),” § I prosecution is not a defense to a under disa- 463(a)(3) greed with the Court’s conclusion that enacted liability” ‘liability “strict offense “where criminal is imposed ” Ibid., of the regardless quoting defendant’s state of mind.’ State, Dawkins v. Md. I my went on to set forth view of the mens rea 463(a)(3) (332 §in

requirement as follows Md. at 806-807): A.2d at

“In the typical involving person’s situation an older en- gaging consensual sexual activities with a teenager below consent, age of and the scenario which the General 463(a)(3), §§ Assembly likely contemplated when it enacted 464A(a)(3),464B(a)(3), 464C(a)(2), 464C(a)(3), and the defen- dant and in engaging knows intends that he or she is sexual addition, a activity young person. with the defendant that is as immoral activity regarded knows and/or Moreover, segments society. of improper by large by persons is aware that ‘consent’ who are too defendant in young Although particular is ineffective. case the believe, honestly mistakenly defendant but because that representations appearances, person the other consent, age ordinary above the defendant in such that that ought case is or to be aware there is a risk of consent. As the young person age is not above out, points ‘the traditional view majority opinion [is] do engage young persons those who sex with so at their the risk that their are under- peril, assuming partners ____’ It to me that the above-mentioned knowl- seems factors, ability appreci- and the mental edge particularly risk, taking ate that one is constitute the mens rea of the 463(a)(3), 464A(a)(3), 464B(a)(3), §§ offenses defined 4640(a)(2) 4640(a)(3). In enacting provisions, these Assembly General assumed that a defendant is able to by intentionally risk involved appreciate knowingly engaging young person. sexual activities with a There is Assembly that crim- no indication the General intended who, inal attach to one because of his or her mental was unable to that risk. impairment, appreciate Legislature “It is unreasonable to assume that the intend 463(a)(3), for ed one to be convicted under or under proscribing activity underage the other statutes sexual with persons, regardless Suppose, of his or her mental state. Raymond I.Q. an example, Garnett had had rather, severely mentally but had been more retarded as young was the woman involved v. Montgomery Wentzel denied, Hosp., Gen. A.2d cert. 74 L.Ed.2d 995 mentally person I.Q. retarded had an Wentzel child, physiologically capable bearing was but was intercourse, comprehend unable to the act of sexual or even If to understand the difference between the sexes. some disabled, having Raymond’s chronological one so reached age, then had ‘consensual’ sexual intercourse with a I that he age, than fourteen do not believe younger 463(a)(3). 27, § the would have violated Art. Under she 463(a)(3), 464B(a)(3), etc., 464A(a)(3), §§ view that define liability any regard offensеs without for the pure strict state, old, a 20 presumably year defendant’s mental who drinking many beverag- out too alcoholic passes because es, year of a sexual offense if a 13 old guilty would be year in various sexual activities with the 20 old engages I that the imagine while the latter is unconscious. cannot Assembly any intended such result.” General majority’s opinion today confusing. I find the somewhat Thus, opinion, majority in of the the seems to portions some holding majority the Court’s in The reaffirming be Garnett. (352 463(a)(3) liability” § offense Md. at refers to “strict 52), “dispenses 724 A.2d at and indicates that the statute (352 ...” requirement with mens rea Md. at 54). however, portions majority opinion, Other of the appear my dissenting opinion to reflect the views set forth in majority in the For states that example, Garnett case. 463(a)(3) § ... proscribed by “the sexual intercourse involves activity gives place conscious which rise to circumstances that on notice of potential illegality.” reasonable Md. majority A.2d at The refers to the defendant “on being potential miscalculating notice of the risks of age.” victim’s Ibid. majority suggests The also that a defen- “ ” 463(a)(3) § dant violating ‘morally would not be blameless.’ 352 Md. at 724 A.2d at 52.

If the is majority today modifying liability holding the strict Garnett, If, then I applaud majority’s action. on the hand, Garnett, other majority reaffirming holding I continue to disagree.

I affirm judgment would of the circuit court for the in my dissenting reasons set forth opinion Garnett.

BELL, CATHELL, Judge, dissenting joined by Chief J. State, In Garnett v. 632 A.2d 797 this (1957,1996 Maryland Court held that Code Art. RepLVol.), law, 463(a)(3),1 statutory rape liability § is а strict statute. regard: of the stated majority clear, however, sufficiently Maryland’s “We think it a strict offense degree rape second statute defines rea; mens it makes require prove that does State mistake-of-age plain defense. The lan- no allowance for entirety, legislative and the guage of viewed its lead to this conclusion.” history of its creation 584-85, at 803-04. I dissented from that Id. at 632 A.2d decision, concluding: however, believe, Assembly, in

“I do not that the General case, the nature of the crime and no matter every whatever subject can a defendant to potential penalty, how harsh the law, hold, To as a matter that liability. strict criminal of 463(a)(3) prove not the State to that a require section does to commit possessed necessary mental state defendant crime, in sexual relations with a knowingly engaged i.e. that litigate under or that the defendant not female defense, justice in so rooted in principle issue ‘offends as people the traditions of conscience of our as to be ranked is, therefore, pro inconsistent with due fundamental’ and Ransom, 942 F.2d 776-77 cess. See United States (10th Cir.1991), denied, cert. S.Ct. Massachusetts, quoting Snyder 116 L.Ed.2d 799 (1934).” 330, 332, 78 L.Ed. (footnote 593-94, (Bell, J., dissenting) Id. at 632 A.2d at 808 omitted, I emphasis original). expressed, in also at some conclusion, I that a length, namely, the reasons reached that rea, intent, state, often referred to as mens culpable mental been, is, be, it an long and continues to as has essential offense, 595-98, id. at 632 A.2d at 808-10 element of a criminal provision 1. That reads: "(a) guilty second Elements of offense.—A in the degree person engages vaginal if the intercourse with another

person: (3) years person performing is under 14 and the the act Who

is at least four older than the victim.” (Bell, J., being public not statutory rape, dissenting), offense, a strict offense justified can not be welfare theories, wrong” legal of either of the two “lesser on the basis underlain such treat- wrong,” historically or “moral has (Bell, J., id. at ment, 601-05, dissenting), 632 A.2d 812-14 mental negates required mistake of fact state and that 605-11, Id. statutory rape. the crime of establish (Bell, J., And, constitu- dissenting). although the at 814-17 case, addressed, again I presented tional issue was I to be the constitutional length, perceived at some what See id. liability. criminal limitations on strict State v. J., (Bell, discussing After dissenting). A.2d at 817-24 Guest, (Alaska, 1978), the Supreme P.2d which mistake of fact as a defense in recognized Court of Alaska is not particular “where the statute statutory rape opined, offense, requirement either a public type welfare criminal must read into the statute or it must be intent be unconstitutional,” I found concluded: prosecution statutory rape Maryland necessarily “the in protecting into conflict the State’s interests minors brings 463(a)(3) rights because section defendants’ due ‘to operates knowledge diligence exclude elements and Ransom, definition,”’ from quoting its F.2d Lambert, 355 U.S. at 78 S.Ct. at 2 L.Ed.2d at and, thus, of the ignorance girl’s age removes reasonable consequent and lack criminal intent as a defense. The 463(a)(3) failure of section to of a require proof culpable process mental state conflicts both with the substantive due requiring possess ideal that defendants some level of fault for a criminal conviction of and statutory rape procedur- the process al due ideal requiring prosecution the overcome presumption by proof innocence of the defendant’s guilt beyond a reasonable doubt. the max- Notwithstanding im that dispensing criminal statutes with the intent require- ment and criminal offenses no requiring mens rea have a status,” “generally disfavored of parts the rationale V and majority opinion of the legislature VI is has abso- authority liability lute to create strict crimes. For the reviewed, I agree. contrary, reasons I not On the do. under the Fourteenth Amend- believe due both Rights, the Declaration of strict precludes ment and under statutory rape. Interpreting criminal section 463(a)(3) majority largely as the does has the effect of relieving proof of its burden of and burden of State intent, and, hence, persuasion. By making the defendant’s blameworthiness, irrelevant, Legislature has made inev- Moreover, itable, petitioner’s upon conviction. convic- felony statutory rape tion of the offense of under section 463(a)(3), in to a to 20 penalty up addition substantial years imprisonment, reputation grave- a defendant’s will be no con- ly besmirched. Where there is issue as sexual tact, than likely which is more not be the case statutory rape prosecutions, proof prosecutrix’s age оf the is it only proof guilt, absolutely not of the defendant’s is and, time, only of it at the same it is fatal to the dispositive defense the defendant would otherwise have. So interpret- 463(a)(3) ed, only destroys absolutely section the con- fault, meaningless, statutory it renders in the cept but context, presumption right of innocence and the process.” due (Bell, J.,

See id. 632 A.2d at 824 dissenting). holds, Today, majority “Appellant’s rights pro- to due and Maryland cess under United States Constitutions when, being charged were not violated with upon rape, prevented Appellant.from presenting the trial court his reasonably defense that he believed the victim was above 13 Thus, age.” Garnett. that I question anticipated the Court answers the Garnett, And, I Accordingly, as I did in dissent. what I said Garnett, my dissenting opinion, directly relevant to the judice, case sub I urge reading commend and its it, following. consideration. To I also add the

I. of The Fourteenth Amendment States Constitu- United Maryland Rights guarantee tion and the Declaration of each

697 protects Process those law. Due process individual due and conscience rooted the traditions that are “so liberties v. Snyder fundamental.” ranked as as to be people our 330, 332, Massachusetts, 97, 105, 78 L.Ed. 54 S.Ct. 291 U.S. (1934). than 100 more As Justice Chase observed years ago: Federal, State, Legislature or

“There are acts which authority. There are do, exceeding their without cannot governments, Republican in our free principles certain vital flagrant and apparent overrule an will determine and which injustice to authorize manifest power, legislative abuse law; away security personal or to take by positive for the whereof private property, protection liberty, established.” government was 386, 388, Bull, 1 L.Ed. Dall. v.

Calder (1798). integral republi are to our process rights, Due which citizens, including all government, protect form of can accused, depriva and from procedures criminal from unfair rights. tions substantive

a. procedural only due are satisfied requisites a fair opportuni- accused is afforded both notice and when the 565, 577, 579, 95 Lopez, to be heard. Goss v. 419 U.S. ty See 729, 738, (1974); Mullane (quoting Co., Hanover Trust Central (1950)); Balti- Mayor City L.Ed. 865 Reed v. Council of (1991); more, 175, 183-84, Pitsen- 323 Md. A.2d Pitsenberger, berger addition, competing must three ponder a court interests: affected private interest that will be

“[FJirst action; second, deprivation official the risk an erroneous used, and the through procedures of such interest value, any, procedural if of additional or substitute probable interest, finally, the Government’s includ- safeguards; and administrative ing the function involved and fiscal procedural require- that the additional or substitute burdens entail.” ment would 319, 335, 893, 903, Eldridge,

Mathews S.Ct. 18, (1976); Administration, Hare Motor Vehicle 914, (1992); Md. 604 A.2d Brosan v. Coch- (1986). ran, 662, 671-72, 970, 307 Md. 516 A.2d case, majority concludes the of proce- this mandates satisfied, dural due were because the was appellant given sufficient notice of what actions constitute 679-80, rape. 51-52 See if majority ignores appellant the real issue. Even having were on notice that sexual relations with someone the consensuаl constitutes statutory rape, below this does mean, suggest, and there is no evidence to appellant particular knew that the female with whom he was having underage. sexual relations was As the United States States, Staples Court observed v. United 600, 114 S.Ct. 128 L.Ed.2d 608 notice means more than simply cursory knowledge the law. 5861(d), §

At issue in was Art. of the Staples U.S.C. Act, possession National Firearms which criminalizes of an firearm,2 ‍​‌‌​​‌‌‌​​‌‌‌‌​​​‌‌​‌‌​​​‌​​​​​​‌‌​​‌​‌‌‌​​​​​‌​‍a unregistered imposing up sentence of to ten 603-06, in prison, but is silent as to mens rea. See 511 U.S. at 1795-97, 114 S.Ct. at 128 L.Ed.2d at 614-16. The defendant rifle, Staples, possession had an AR-15 assault when his Alcohol, by home was searched the Bureau of Tobacco & 5845(a) "(1) shotgun having 2. Firearm is defined in a a barrel or (2) length; weapon barrels of less than 18 inches in a made from a shotgun weapon length if such as modified has an overall than less length. 26 inches or a barrel or barrels of less than 18 inches in "(b) Machinegun. ‘machinegun’ any weapon The term means which shoots, shoot, shoot, designed readily or can be restored -to shot, automatically reloading, by more than one without manual single trigger. function of the The term shall also include the frame or any weapon, any part designed solely receiver of such and intended and intended, exclusively, parts designed or combination of and for use in converting weapon machinegun, parts into a combination of machinegun parts from which a can be assembled if such are in the possession person.” or under the control of a at 128 L.Ed.2d at Id. at S.Ct. Firearms.3 had never fired gun that the Thе defendant testified possession. in his Id. automatically, when requested jury instruction at 614-15. He 128 L.Ed.2d “ the gun ‘he knew that prove had that the Government ” was denied automatically,’ request but fully would fire court, and sentenced to 5 he was convicted the district 603-04, 114 $5,000 fine. See id. at and a years probation court, the district Reversing 128 L.Ed.2d at 615. government that the Court concluded United States knowledge a as to the proving the burden of defendant’s bore 619, doubt, id. at weapon beyond of a reasonable nature stating at that it was at 128 L.Ed.2d where, as liability] Congress to impute [strict “reluctant here, convicting persons easing path it would mean of probability not even alert them to the whose conduct would 615-16, id. at 114 S.Ct. at 128 regulation____” strict See a “punishing at 622-23. The Court also noted theory with the felony simply incompatible violation as a is offense,” at 128 public welfare Id. at S.Ct. 623-24, holding its line of cases long L.Ed.2d at and reiterated being a found guilty that a defendant must have mind before 604-08, 1796-98, at at guilty. See U.S. L.Ed.2d at 615-18.

I conclusion in addressed the same issue and drew the same in my dissenting opinion Garnett: knowledge

“A defendant who has that a victim has consent- relations, ed, fact, in to sexual whether the consent is not, thereby placed effective or is not on notice as to the Knowledge equate victim’s of consent does not age. simply in knowledge age, just engage with as intent to sexual reveal, more, does not without with whom. More- relations over, it is a relations with a engage not crime sexual rifle, military gun equivalent 3. This is the civilian of the M-16 but prevents stop, it metаl which it from unless it has been modified has a stop gun firing repeatedly. The metal on the defendants’ had been filed away gun repeatedly. Staples, and the could be fired See 603, 114 S.Ct. at 128 L.Ed.2d at 614-15. old; it may morally wrong, minor who is at least 16 be Americans, in the minds of most but it is not a crime. It is engages a crime if the defendant in such relations with only i.e., 14, 463(a)(3), specified age, a minor under a as section act or 14 or section 464C. But even when the crime, necessarily engaged e.g. possession is contra- band, knowledge illegality—that of the the contraband knowingly possessed—is required. still See Dawkins v. State, Consequently, 547 A.2d 1041 or, least, activity legal illegal, would be but where least, very ages participants, for the knowledge proven. defendant’s the victim’s must be Otherwise, acting who does not know he is defendant illegally could be convicted.” (Bell, J., dissenting). 332 Md. at 632 A.2d at 822-23 judice, This is most relevant to the case sub where observation knowledge the trial court that the recognized even defendant’s not at all partner’s age of his was clear: many year instances... old can look like “[I]n [a] instances, old; year year year old or in other a 13 old can So, year look like an old. I have no way knowing actually this to be than she appeared whether victim older I only go by police was. But can her statement to the and 16 years to the Defendant that she was old.” majority also the second prong proce- overlooks the dural due test. 352 Md. at 724 A.2d at process See given opportunity present 51-52. The was not an appellant fact, By ignoring apparently forgets a defense. this the Court “ in statutory rape age critical issue a case is ‘the ‘[t]he related, serves two distinct rape victim..which but (1) it the victim’s to consent purposes: capacity establishes (2) represents and it notice to a defendant of proscribed Garnett, 621, (Bell, conduct.” See Md. 632 A.2d J., observed, court has dissenting). astutely As one where as here, only by age, the “outcome is determined not the child’s the relative of the ... age but defendant [and][w]hen requires application, law a mathematical formula for its [one] say being cannot is immate- provided wrong numbers (N.M. State, 111 N.M. 803 P.2d rial.” Perez 1990). fact, age, the defendant’s child’s In it is the go that would otherwise for actions prosecution lead to which unpunished.4 his present fair opportunity a

By denying appellant construing knowledge, defense of lack statute, permit has statute as strict of, an irrebuttable ted, the victim appellant and made scrutiny. pass This can not constitutional presumption.5 b. functions to limit both the state’s due

Substantive restrict the citizens’ lives and to power regulate substantive unconstitutionally denying liberty. generally See state from Tribe, Law Laurence H. American Constitutional (2d ed.1988). deprives the state 1302-1435 When basis, life, rational it must have at least a liberty, property it must upon right, it a fundamental infringes but when and a nar- governmental interest compelling demonstrate protecting only tailored means of interest. See rowly Redhail, 374, 388, 682, 54 Zablocki v. 434 U.S. 689, 701, (1978); Hill v. 304 Md. Fitzgerald, Johnson, (1985); Attorney General 274, 310, A.2d outweighs appel- interest

Assessing whether the State’s competing considerations. The first rights lant’s involves two words, with nature of the interests involved. other is the defendant, whether the to the it must determined respect be deep is “rooted so in the tradition right being infringed upon fundamental,” as to ranked as people and conscience our be Massachusetts, 330, 332, Snyder v. State, to the whether its 78 L.Ed. and as Garnett, Maryland. pointed I out in fornication is not a crime in 4. As J., 602-03, (Bell, dissenting). See 332 Md. at 632 A.2d at 812 presumptions, of irrebuttable as violative of due 5. For a discussion J., Garnett, 616-20, (Bell, process, A.2d 819-21 see 332 Md. at 632 dissenting). 702 Second,

interest is the compelling. appellant’s interests must against be balanced the relevant State interests. See Young Romeo, 307, 321, 2452, 2461, berg v. 457 U.S. 102 S.Ct. 73 (1982). 28, 40-41 Here, the interest the seeks to is his appellant vindicate defense, to process right present right fundamental due State, guaranteed every to criminal defendant. See v. White 626, 640, 187, (1991); State, 324 Md. 598 A.2d Mitchell v. 756, 761, 196, is, “in right 320 Md. 580 A.2d This essence, right opportunity against the to a fair to defend the State, 376, accusations ....” v. State’s Taliaferro (1983) 403, 29, 44 v. (quoting Mississippi, Chambers 1038, (1973)). 410 U.S. 93 S.Ct. 35 L.Ed.2d 297 Much like Amendment, the rights protected by of defendants the Sixth fundamental, right present gives the to a defense is in that it appellant testimony “to offer the of wit opportunity nesses, attendance, necessary, and to their if is compel [which] defense, right to plain present right terms present defendant’s version the facts as well as the Texas, 95, 98, prosecutions jury—” to the v. 409 U.S. Webb (1972) 93 S.Ct. 34 L.Ed.2d (quoting Wash Texas, 1920, 1923, v. ington 388 U.S. (1967)). clear, therefore, L.Ed.2d 1019 It appel is that the Indeed, deep right lant’s interest is rooted and serious. interests, defendant, similar to other of the that the United States has found to be in the Supreme Court fundamental criminal process. Douglas California, See (1963) 814, 9 (concerning right S.Ct. L.Ed.2d 811 to counsel on appeal); Mayer Chicago, first U.S. S.Ct. (1971) (concerning right L.Ed.2d 372 transcript misde Smith, appeals); meanor Bounds v. (1977)

1491, 52 L.Ed.2d 72 materials (concerning right legal courts). and access to majority promoting lists state’s interests as: children,

physical preventing and mental health of the sexual children, exploitation and abuse of preventing venereal disease and pregnancy. See 352 Md. 724 A.2d at sure, so, 52-54. To compelling. be these interests are Even and, in rights process due appellant’s the does not vitiate this event, narrowly tailored. must be any or that, exploitation an rather than the fact Aside from only reveal facts of this case the parties, of one of the abuse act, see State v. consensual fully in a engaged teenagers two (R.I.1998) (Flanders, J., dissenting)6, Yanez, law, formulated is currently as statutory rape Maryland’s those con addressing tailored method narrowly most the cerns. v. Hard Bowers majority cites position,

To its bolster 92 L.Ed.2d 140 wick, S.Ct. statute, Georgia penal charged violating with Hardwick was 187-88, 106 478 U.S. at S.Ct. sodomy.7 See which criminalized in federal brought an action 92 L.Ed.2d at 144. He at (1) in crimi court, unconstitutional the statute was alleging: (2) homosexual sodomy, practicing nalizing consensual (3) arrest, he danger him in imminent Georgia placed law in his own right privacy a fundamental Constitutional had home, engage sodomy, encompassed right which (4) if it did not for the law even there was no rational basis 188, 195-96, 106 rights. See id. at infringe on his fundamental 144, 148-49. Rejecting each 92 L.Ed.2d at at S.Ct. rights to extend its fundamental declined argument, 190-96, proposed. as Hardwick See id. jurisprudence 2843-47, 145-49. The Court concluded 92 L.Ed.2d at liberties protected fall within one of the sodomy does not 191-92, 106 S.Ct. at Rights. in the Bill of See id. embodied at 146-47. The Court also determined 92 L.Ed.2d issue, this case contains Although not address the due it does why prove the State must mens an excellent and detailed discussion statutory rape case. rea in a Bowers, 7. The statute at issue in stated: (1984): “Georgia Code Ann. 16-6-2 (a) performs person sodomy when A commits the offense of he organs person involving sex of one submits to sexual act the mouth or anus of another... (b) punished by sodomy A of the offense of shall be convicted years...” imprisonment nor more than 20 for not less than one review, Georgia law survived a rational relations even if it Georgia was based on the electorate’s view that homosex 196, 106 ual sodomy unacceptable.” is “immoral and id. at See S.Ct. at 92 L.Ed 2d at 149. Bowers, majority

From distills the following, “[t]he state’s interest overwhelming protecting children from these outweighs any risks interest the individual have in engaging sexual relations with children near the consent.” See 352 Md. at 724 A.2d at 53. again Once majority analysis. has confused the The pres- issue this case ents is not appellant right whether the has a constitutional to engage in sexual with teenager younger relations than he is. I agree majority, appellant with the has no such constitutional Rather, right. appellant’s the issue is the due to process right defense, present protected by as the Fourteenth Amend- Thus, ment. Bowers is to inapposite present case. demonstrate, Finally, cannot State nor has it even show, attempted Maryland’s statutory to that law is the narrowly most tailored means to in achieve state’s interest children, protecting infringing upon while as few due And, rights possible. when the state has to it less open interests, ways satisfying legitimate drastic its it may not legislative choose a scheme that broadly stifles fundamental Pontikes, 51, 58-59, liberties. See Kusper (1973) (citing L.Ed.2d Dunn v. Blum- stein, 284-85). 405 U.S. at 92 S.Ct. at While some children require protection of strict liability, many others do not. There options are reasonable to Recognizing maturity available the State. “the increased State, and independence today’s teenagers...,” see Perez v. 111 N.M. 803 P.2d the Model Penal Code developed has an strict approach limits to those cases of involving sexual relations children under ten years Garnett, age. 610-11, (Bell, See 332 Md. at 632 A.2d at 816-17 J., are, addition, dissenting). There other options utilized States, allowing other such as present defendant defense whenever the “victim” lies about his or age. her See (Bell, J., id. at 632 A.2d at 815-17 dissenting). some, by no but protect offense statutes sexual Maryland’s alleged perpetrators. only a few all, punish children and means 27, §§ 463 and Art. (1957, Repl.Vol.), Code Maryland older and old or years who is the defendant punish 464A8 Likewise, 13-year-old. with a activity in sexual engages in sexual engage who defendants punish and 464C10 §§ 464B9 is four the defendant when 15-year-old, а 14 or relations with only are the These partner. than his years more older who punish persons has enacted Legislature statutes underage partners. acts with sexual consensual engage First, the following. scheme demonstrates This of all exploits about the sexual not as concerned State is so immature it is those who are considered children as young give too they are little doubt there can be cases, appropri be liability may well In those strict consent. arbitrary distinctions be Second, has made the State ate. 18-year- intercourse. sexual engaging persons tween 14-year-old, with a sexual relations has consensual old who older, faces him or her to be reasonably believing provides: That section offense in the "(a)Elements guilty of a sexual of offense.—A act with another degree person engages in a sexual if the second person: (3) performing sexual act is years age person and the Under 14 years than the victim....” more older four or § 9. 464B reads: in the "(a)Elements person guilty of a sexual offense is of offense.—A person engages in: degree if the

third years age (3) person who is under with another Sexual contact years is four or more performing the sexual contact person and the than the victim older reads: 10. That section guilty “(a) person of a sexual offense Elements of the offense.—A engages: degree person if the

the fourth (a)(5) vaginal subheading, in (3) § of this provided 464B Except as years of and the 14 or 15 who is with another intercourse years older than the other four or more person performing the act is person....” prison, while the person years who is 17 of age, engages who % in the exact guilty and, therefore, same conduct is of no crime will face no punishment. protection truly those need liability protection strict certainly can be achieved short of putting at risk a right defendant’s to a fair trial.

The fact that a majority of the States11 hold that a defen dant’s process rights may due be ignored when the charge is statutory rape, is not a compelling reason for this Court to do likewise; whatever other courts do does not provide a justification for us to sanction the infringement upon a defen dant’s due to a fair right trial. Due process simply is not determined reference to the number of ruling courts particular way. It is of little consequence to the appellant that he in prison, see 352 Md. at was sentenced to 20 724 A.2d at because he will be forever branded ‍​‌‌​​‌‌‌​​‌‌‌‌​​​‌‌​‌‌​​​‌​​​​​​‌‌​​‌​‌‌‌​​​​​‌​‍with stigma of being Moreover, a child sex offender. applicable inquiry is not whether the appellant spent day one in jail years; or 20 if trial, he did not receive fair his conviction Because, should not be allowed to stand. 463(a)(3) violates the Due Process Clause of the Fourteenth Amendment and the applicable provisions of Maryland Declaration of Rights, appellant’s conviction should be reversed. that, Justice Flanders of the Rhode reports Island [People Cal.Rptr. ”[w]ith v.] 61 Cal.2d Hernandez[ (Cal.1964)] P.2d 673 taking [the Model Penal Code of 1962] lead, half, twenty jurisdictions, nearly three American explicitly now recognize Yanez, some form of mistake of defense.” State v. J., (1998) (Flanders, dissenting). A.2d

Case Details

Case Name: Owens v. State

Court Name: Court of Appeals of Maryland

Date Published: Feb 12, 1999

Citation: 724 A.2d 43

Docket Number: 129, Sept. Term, 1997

Court Abbreviation: Md.