*1 419 Mich v CASH PEOPLE (Calendar 18). 7, Argued Docket No. 68064. June No. Decided July 1984. Cash, Jr., George by jury E. was convicted in the Calhoun Nicolich, Court, J., third-degree Circuit Paul of criminal sexual Walsh, P.J., Appeals, conduct. The Court of D. F. and Mac- Ernst, JJ., unpublished opinion per Kenzie and affirmed an 52145). (Docket appeals, contending curiam No. The defendant regarding complainant’s that his mistake fact is valid defense to the and that he was denied a fair trial regarding complain- because of the exclusion of evidence lifestyle by prosecutor and because of ant’s references rape. forcible Williams, opinion by joined by In an Chief Justice Justices Ryan, Brickley, Cavanagh, Boyle, Supreme held: Court Legislature intended to omit the defense of reasonable mistake of where criminal sexual cases 16-year-old complainant charged, and conduct with a 13- to allowing compelled by the defense is not the constitution. complainant’s lifestyle Evidence of the was not admissible credibility impeach because it was her or to not relevant Any by show her bias toward the defendant. error occasioned [3] [1-7] Admissibility Mistake or lack of information as to victim’s 65 Am Jur victim was a ALR3d 1452. 65 Am Jur rape. 2d, Rape References 2d, prosecution virgin, Rape ALR3d §§ §§ 82 et absent for Points in Headnotes 1100. evidence on issue of 36. seq., defense 86. attack on her consent, as defense to chastity. rape [4] Mistake or lack of information as to victim’s Modern Modern status of Modern 65 Am Jur tity. 90 ALR3d 1300. complainant’s general reputation complainant’s prior statutory rape. 44 ALR3d 1434. complainant’s prior sexual acts. 94 ALR3d 257. status of status 2d, Rape admissibility, admissibility, admissibility, § sexual acts or 1. in forcible in forcible statutory rape prosecution, of general reputation unchastity. 95 ALR3d 1181. chastity rape prosecution, rape prosecution, as defense to for unchas- v Cash tending rape the introduction of evidence to show forcible by prosecutor reference to forcible was harmless beyond overwhelming a reasonable doubt because of the evi- dence the defendant. major attempt 1. The criminal sexual conduct statute was a Legislature sexually to redefine the law of assaultive *2 Legislature may crimes. The define criminal offenses without requiring proof specific provide of a criminal intent and that a person proceeds peril regardless ignorance at his of his statute, enacting honest mistake of fact. At the time of the the Legislature presumed reject- is to have been aware of case law ing reasonable-mistake-of-age charges the defense to of statu- tory rape, by Legisla- and therefore omission of the defense the defining third-degree ture in the statute criminal sexual con- 16-year-old complainant duct with a 13- to was intentional. Moreover, constitutionally the defense is not mandated on due process grounds. Legislature present 2. When the drafted the criminal sexual provisions conduct in the state of the law for more than age had been that mistake of was no defense to a charge statutory rape, Legislature presumed and the must be legislated to have known this state of the law and to have in conformity legislative with it. The silence on the matter of Legislature intent is a clear indication that the intended that concerning age ought the defendant’s belief the victim’s to generally recognized remain as irrelevant as it was to be at the provisions time the revised criminal sexual conduct were en- by Legislature acted. The discrete choices made the in deter- mining degrees the various of criminal sexual conduct where minors are involved evidence careful consideration of and a statutory rape. deliberate intention to retain the law of 3. concerning Refusal to allow cross-examination the com- plainant’s lifestyle in this case was not an abuse of discretion. third-degree There is no issue of consent in a criminal sexual complainant conduct case with a below the of consent complainant conclusively presumed incapa- because the to be consenting. Any complainant ble of evidence that the sexually experienced would be irrelevant to attack her charac- logical ter for truthfulness. There is no connection between complainant’s such alleged bringing evidence and the bias charges against the defendant. by prosecutor rape 4. deny References to forcible did not objections defendant a fair trial. The defendant’s to refer- during prosecutor’s opening ences to forcible made questioning physician statement and the of the who examined objection by No the trial court. were sustained during closing by prosecutor made to remarks was raised prejudicial minimal and could argument effect was where the cautionary by Brief references instruction. cured a have been improvi- complainant, while during of the examination direct they dent, unavoidable because con- extent were to a certain gestae part the offense. The evidence was res of the cerned leading up convey jury to the necessary the events to the having complainant’s charged actions to the conduct overwhelming police of the called. In view defendant, beyond a any resulted was harmless error which doubt. reasonable Affirmed. Levin, Kavanagh, joined dissented. Reason- Justice Justice recognized a as a defense to should be mistake able involving third-degree a 13- sexual conduct criminal long history Michigan complainant. a 16-year-old has rea, culpable mens mental the establishment of insistence on necessary state, element of felony intent is a cases. Criminal involving sexual conduct crime of gravamen 16-year-old complainant. of the offense is 13- to underage person. Disal- voluntary an sexual intercourse with proof of lowing of fact obviates of reasonable mistake a defense capacity underage not to consent is
mens rea. The *3 issue; rather, dependent culpability the defendant’s is at age Recognition as a mistake of mind. of reasonable state of third-degree with a 13- to sexual conduct defense to complainant requires only of fact 16-year-old the finder honestly believed determine whether the defendant rea- complainant the belief was was an adult and whether sonable.
Opinion op the Court — Rape — Third-Degree — Defenses 1. Criminal Sexual Conduct Age. Mistake of age to a not available mistake of is The defense of a reasonable third-degree 13- 16- charge with a to criminal sexual conduct of (MCL 28.788[4][l][a]). 750.520d[l][a]; year-old MSA — — Rape Third-Degree — 2. Sexual Conduct Defenses Criminal Age. Mistake of age, person years penetration of a 13 to The crime of sexual conduct, third-degree and not is criminal sexual common-law, mis- of reasonable and the creation of a defense unjustified age by Supreme an Court would be take of v Cash (MCL Legislature’s authority 750.520d[l][a]; invasion of the 28.788[4][l][a]). MSA Rape — Third-Degree — — 3. Criminal Sexual Conduct Evidence Impeachment. lifestyle 15-year-old complainant
Evidence of a in a case charging third-degree criminal sexual conduct was not admissi- impeach credibility ble it where was not relevant to her or to (MCL bringing charges against show her bias in the defendant 750.520d[l][a]; 28.788[4][l][a]). MSA Rape Third-Degree — — — 4. Criminal Sexual Conduct Evidence Rape. Forcible rape by
Evidence of forcible references to forcible prosecutor charged in in which a case the defendant was third-degree 15-year-old criminal sexual conduct awith com- plainant beyond was harmless doubt reasonable where there (MCL overwhelming the defendant 750.520d[l][a]; 28.788[4][l][a]). MSA Opinion by Dissenting Kavanagh, J. — Rape — Third-Degree —
5. Criminal Sexual Conduct Defenses Age. Mistake of age recognized Reasonable mistake of should as a be defense to a third-degree involving criminal sexual conduct a 13- (MCL 16-year-old complainant 750.520d[l][a]; MSA ][a]). 28.788[4][1 Rape — Third-Degree — 6. Criminal Sexual Conduct Mens Rea. engage voluntary
Criminal intent sexual intercourse with a person necessary who is 13 to is a element of conduct; culpability dependent criminal sexual (MCL 750.520d[l][a]; on the state of defendant’s mind 28.788[4][1][a]). Rape — Third-Degree — — 7. Criminal Sexual Conduct Defenses Age. Mistake of
Recognizing prose- the defense of reasonable mistake penetration cution for sexual with a under does not imply that for conviction the must have fact the, person age; known that was under when the defense is raised, only fact trier of need determine whether *4 honestly believed that the was an adult (MCL 750.520d[l][a]; and whether the belief was reasonable 28.788[4][l][a]). MSA 419 Mich 230 234 op Opinion the Court Attorney Kelley, General, J. Louis Frank J. Sindt, Prose- General, J. Conrad Caruso, Solicitor Pattison, cuting Attorney, Assis- A. and Richard people. Prosecuting Attorney, for tant Jordan) (by Appellate Herb Defender State the defendant. presented in this The main issue C.J.
Williams,
requires
reason-
to reconsider whether
us
case
complainant’s
is a
as to a
of fact
mistake
able
charge.
years
rape
statutory
Over
to a
defense
ago,
rejecting
such a
a rule
enunciated
this Court
Gengels,
632; 188
Mich
defense
(1922),
a similar
involved
which
NW
re-We
statute.
under the former
reject
Gengels
this
rule and likewise
affirm the
520d(l)(a)
brought
§
under
in cases
defense
third-degree
conduct statute.1
sexual
(1)
appeal
issues:
additional
raises two
This
discretion
abused its
the trial court
whether
complain-
permitting
cross-examination
not
complainant’s
regarding
life-
ant or her mother
(2)
argument
prosecution’s
style;
whether
Gengels, which
statutory rape
time of
in effect at the
statute
The
750.520;
MSA
knowledge
MCL
prohibited
28.788,
under
carnal
of a female
replaced
new
repealed by
266 and
1974 PA
28.788(1)
seq.;
statute,
750.520a et
conduct
criminal sexual
et
define,
consolidate,
codify,
seq.
purpose
was to
of the new statute
sexually
assaultive
prescribe punishment
number of
for a
Johnson,
heading.
v Willie
See
crimes under one
320, 327-330;
Legislature
three of which
law,
distinguished
(1979).
goal,
this
furtherance of
In
I. Facts 23, 1979, evening September On the the com- plainant, who was one month her shy of 16th the birthday, met defendant at a Greyhound bus complainant station Detroit. The running was away from home at time. talking the After with complainant for a couple of hours gaining her trust, persuaded defendant to complainant accom- him a pany drive in his car. drove to a They Marshall, motel separate where Michigan, two acts of sexual took The place. intercourse com- plainant managed to the room leave motel unde- tected after defendant asleep, fell and awakened motel, in charge in turn who called the police. charged The defendant was with two conduct, counts of criminal sexual namely, engaging in penetration sexual person between the ages of and 16 Docu- years. ments found in the court file indicate that at the offense, time of the 30 years the defendant was old.
At examination, complainant preliminary admitted that she told defendant that she was 17 years old. The defendant had also to indicated police at complain- the time of his arrest that ant told him she was 17. complainant was described being defendant as 5' 8" tall and weighing about 165 pounds. trial,
Prior brought defendant a motion re- questing that be instructed a reason- jury that Mich 230 op Opinion the Court is a complainant’s to the as mistake
able alternative, charges that be defense, or, in the ground that on the dismissed asserting from she estopped collaterally of the offense she stated the time 16 since at the trial court Following hearing, 17. she was opinion and entered its motion defendant’s denied that effect. and order to dire, voir During jury the course of The trial represent himself. right his asserted *6 in his own proceed to permitted defendant court to attorney remaining present with his defense trial, complainant At testified assist defendant. though reluctantly, en- voluntarily, that she had with defendant out in sexual intercourse gaged otherwise harm her. that defendant would fear impeach complainant tried to Defendant to show that she was lifestyle her questions about "street-wise”, prohibited trial this but court prohibited Defendant was also cross-examination. to her mother as complainant’s from questioning daughter’s lifestyle. County
Sergeant Max Faurot of the Calhoun for the Department testify Sheriff’s was called that testi- portions prosecution. relevant mony follow: dispatched you you Do recall whether or not were
”Q. morn- Heights point at on the to Marshall ing Motel some September 24th? Yes, I '‘A. weis. you regards Do know with to what? ”Q. Yes, a call my dispatcher that she had advised
'A. there rape. That from the motel that there had been had location, suspect was that been a at that rooms, and that around and in one of the motel manager of the motel.” victim was in the office with the Opinion op the Court jury The trial court instructed the that theory defense was one of mistake of fact and that reasonably believed that had reached the of consent. Over defendant’s objection, jury the court later instructed the "[i]t is no defense that the defendant believed that complainant] years [the old or older at the alleged time of the act”. guilty by jury
The defendant was found conduct, sexual 750.520d(l)(a); 28.788(4)(l)(a), and was sen- prison. tenced to a term of from 5 The Court of Appeals affirmed defendant’s convic- unpublished per opinion. tion granted an curiam We appeal August 10, leave to 1982. 414 Mich 868. Reasonable-Mistake-of-Age
II. Defense Gengels A. The Decision good-faith
This Court first stated that a
or rea-
complainant’s age
sonable mistake as to the
a defense to a
is not
statutory rape charge
Gengels,
(1922), nearly
the defendant
collateral evidence of
recognizing
similar acts. While
that such evidence
may
guilt
particular
be admissible where
of a
depends
crime
intent,
the Court noted:
charged
proof
"But in the crime
here
of the intent
The
decision has
been
proposition
that mistake
this state’s courts for
rape charge.
statutory
is not a defense to a
v
242;
B. Gengels Is Still Viable? opportunity
This Court for the first time has the Gengels review the rule announced determine whether it is still viable under provision successor courts; Gengels by 2, has also for this rule the federal see been cited 1940). (CA Mack,
United States 112 F2d 266). (since 750.336; repealed by 3 MCL MSA 28.568 1974 PA *8 and, so, sexual conduct statute if it whether com- ports right process. with a defendant’s to due reads, part:
The statute in relevant "(1) person A guilty of criminal sexual conduct degree person engages third if pene- the tration in sexual person if any following another of the circumstances exists: "(a) That other is at least 13 of 28.788(4). age.” 750.520d; 16 years
under MCL MSA penetration”
"Sexual is defined as: intercourse, cunnilingus, fellatio, anal inter- "[S]exual course, intrusion, any other slight, however any part person’s body any object of a or of genital into the openings person’s or anal of body, another but emission required.” 750.520a(h); semen is not 28.788(l)(h). present case, In the defendant directly attacks constitutionality above statute on due process grounds imposing criminal liability requiring without proof specific intent, i.e., that the accused know that the victim is below the statutory age In particular, consent. he argues that the crime of statutory rape is rooted in and, common law as with other common-law offenses, the element of intent must be implied within the crime, definition of a absent clear legislative language to the We are contrary.4 urged by defendant to construe the statute’s si- lence with respect to the element of intent as not negating the defense of a reasonable mistake of fact toas the complainant’s age.
In support of his argument,
relies
primarily
two out-of-state
represent
cases which
that,
minority view
in a statutory rape prose-
4 See, e.g., People Aaron,
672, 722-723;
cution,
reasonable,
mistaken,
an accused’s
*9
age
belief that
the
was of the
People Hernandez,
consent is a valid defense.5
v
Rptr
(1964);
529;
Cal 2d
39 Cal
The vast as well as the fed courts, eral which have considered this identical rejected arguments issue have defendant’s and do recognize not the defense of a reasonable mistake age statutory rape charge.6 to a For the reasons agree posi majority’s below, discussed we with the tion.
After careful examination of the statute in the legislative history, instant case and its we are persuaded Legislature, enacting new criminal code, 266, sexual conduct PA intended to omit the defense of a reasonable mis- take of from its definition of involving 16-year- criminal sexual conduct a 13- legislative old, and we follow the intention._ generally See Anno: Mistake or Lack of Information as to Victim’s Age Statutory Rape, as Defense to 8 ALR3d 1100. statute, adopted, by A few reasonable-mistake-of-age states have See, statutory rape e.g., defense in 11.41.445(b); cases. Alas Stat § 13-1407(B); §41-1802(3); Ariz Rev Stat Ann Ark § Stat Ann Ill Ann Stat, ll-4(c) 38, (Smith-Hurd); 510.030; Ky ch § Rev Stat Mont § 45-5-506(1); 9A.44.030(2). Code Ann § Wash Rev Code Ann § adopted This defense has also been in limited fashion in the 1962 Proposed 213.6(1), Draft of the Model Penal Code which reads: § "(1) Age. criminality Mistake as to Whenever in this Article the depends being conduct on a child’s below the it is no age, defense that reasonably actor did not know the child’s depends believed the criminality child to be older than 10. When being the child’s below a critical other than it is a defense for prove reasonably the actor to that he believed the child to be above age.” the critical 6See, generally, Anno, cases cited in fn 5. general
First, a
rule of
construction is
Legislature
"presumed
that
legislate
to know of existing
harmony
laws”.
(1916).
Harrison,
363, 369;
See
v Willie
(1979); People
320, 327;
of his defense of
or an honest
Balint,
mistake of fact. United States v
258 US
(1922);
250, 252;
301;
42 S Ct
Analysis adopted by scheme Legislature to define criminal sexual conduct fur- Legislature ther reveals that cannot reason- ably be said to have intended that a defense based concerning on reasonable mistake of fact the vic- persons charged tim’s be available under the act. *11 dealing passed by
We are statute, with a Legislature just years ago, nine shows, which age face, carefully its of the victim was defining establishing considered ity and the sever- age of the criminal conduct. The of the victim is balanced the nature of the sexual con- graduated system punish- duct to establish a of 28.788(2)- 750.520b-750.520d; ment. See MCL MSA 28.788(4). prior rape knowledge
Under or carnal stat- penetration age ute, sexual of a female under the punishable rape, by of 16 was defined as life years. imprisonment any 328, or term PA of Legislature § In 520. when the revised the conduct, of criminal law sexual it could have rape” "statutory definition of retained this and punish could have it continued as criminal degree, by i.e., sexual conduct imprisonment in the first life years. any Legisla- or term of The Legislature, so. ture chose not to do tively, The alterna- completely could have decriminalized con- activity sensual sexual ages with a between the 16, or, matter, of 13 it could have made irrelevant. But it chose not do so.10 Legislature What did choose to do towas system punishments create a of definitions type which victim, considers the contact, sexual and several limited situations relationship authority which between victim legislative judg- warrant, and defendant in the punishment. ment, an increase in Legislature Thus, the has determined that sex- penetration years ual victim under 13 first-degree is is sexual conduct which punishable imprisonment any life term of years. 750.520b(l)(a), 750.520b(2); 28.788(2)(l)(a), 28.788(2)(2). penetration But sexual age, older, of a victim 13 or but under 16 conduct, criminal sexual with a Legislature also could have followed the of those states lead previously statute, adopted, by which had age the reasonable-mistake-of- Stat, See, e.g., statutory rape defense in Ill 11- cases. Ann ch § 4(c) (Smith-Hurd). Proposed See also the 1962 Draft of the Model 213.6(1). Penal Code § *12 230
244
419 op
Opinion
the Court
prison.
punishment
years
15
of
maximum
28.788(4)(l)(a),
750.520d(l)(a), 750.520d(2); MSA
28.788(4)(2).
13,
However, if
is at least
the victim
age,
years
of
and is a member
less than
but
defen-
household or related to the
the defendant’s
penetration
engages in
dant,
sexual
a
who
first-degree
guilty of
criminal
that victim is
may
conduct and
receive maximum sen-
sexual
tence
750.520b(l)(b),
imprisonment. MCL
of life
28.788(2)(2).
28.788(2)(l)(b),
750.520b(2);MSA
Legislature
discrete choices made
the
These
consideration of
and a delib-
evidence careful
statutory
to
determination
retain
law
erate
rape
prohibited
conduct occurred and
where
protected age group.
the victim was within the
argued
One critic has
the exclusion of
reasonable-mistake-of-age
statutory
defense
rape
longer justified given the in-
cases is no
consent,11
creased
the realities of modern
sexually
society
young
ma-
teens are more
penalty
ture, and the
as com-
seriousness of
pared
liability
are
with other
offenses.12We
strict
statutory
policy
not
convinced that the
behind
rape
protecting
ex-
laws of
children from sexual
ploitation
psychological
possible physical
engaging
is out-
harm from
moded.
recently acknowledged
regulate
in sexual intercourse
Supreme
Indeed,
Court
the United States
authority to
the state’s
in order to
the sexual behavior minors
promote
well-being,
physical
their
mental
gender-based
rape
statutory
even under a
law.13
origi
statutory age
gradually
The
of consent has
risen from
21,
varying among
up
states.
nal
of 10
old to 16 on
110-111,
Myers,
supra, pp
See
fn 9
fn 44.
Myers,
supra, pp
penalty
See
fn
125-127.
years imprison
up
maximum of 15
sexual conduct
is
to a
28.788(4X2).
750.520d(2);
ment. MCL
464,
Superior
County, 450 US
See Michael M v
Court of Sonoma
8;
(1981),
wherein the Court
fn
101 S Ct
Constitutionally contention, to defendant’s Contrary mistake- defense, of-age at least with regard crimes, constitutionally not mandated. We following quote approval language from (CA 1, Nelson v 484 F2d Moriarty, 1035-1036 *13 1973): "Petitioner claims that his honest belief that prosecutrix teen tutional statutory rape of the was over six- defense, of should constitute a of consti- dimensions, rape. to statutory The effect of rea
mens on state gener- and mistake criminal law has * * * ally been left discretion to the of the states. The Supreme Court never an has of the held that honest mistake prosecutrix to the as defense Court’s recent ative constitutional * * * rape, to statutory nothing and clarifying scope procre- decisions * * * privacy, suggests may longer that a state no place the prosecutrix’s age risk of mistake as to the engaging the ner who sexual part- intercourse with a may young enough be within protec- to fall argument tion merit.” the statute. Petitioner’s is without
Moreover, given already highly emotional setting statutory rape trial, of a the allowance aof mistake-of-age defense would cause additional only undue focus on the complainant by the jury’s scrutinizing her appearance any and other visible signs of maturity. problem obvious is that because early grow adolescents at a rapid tend to rate, by the of trial time a relatively undeveloped girl young or boy may have transformed into a young woman man. procedure A better would to permit be mitigating ameliorating any in support of a defendant’s mistaken upheld, against protection equal statutory challenge, an California’s rape exclusively punished law perpetrators. which male 419 Mich complainant’s as to the to be considered
belief judge sentencing.14 by the trial at the time of again We note that our decision is in line with both preponderant majority jurisdictions, the state and reasonable-mistake-of-age recognize
federal, which do not defense for upheld offenses and have likewise due process challenges respective impo- their statutes’ liability necessity sition of criminal proving without the knowledge that the defendant’s victim designated age. Accordingly, was below the we opinion Gengels reject reaffirm our earlier reasonable-mistake-of-age defense for cases 520d(l)(a) brought § under criminal sexual conduct statute.
III.
Complainant’s
Lifestyle
Evidence
Defendant asserts that the trial court denied his
right
Sixth Amendment
of confrontation and cross-
by precluding any inquiry
examination
dence of
into evi-
complainant’s lifestyle.
Defendant main-
*14
impeach
tains that
this evidence
essential
was
to
complainant’s credibility and to show her bias
Specifically,
argues
defendant.
defendant
complain-
that
the evidence would have refuted
testimony
unsophisti-
ant’s
that she was naive and
supported
cated and
intercourse.
his defense of consensual
The trial court excluded the evidence on the
ground
charges
that
it was immaterial
in
to the
Appeals
the instant case. The Court stated:
14
1982).
Elton,
(Utah,
example,
See State v
657 P2d
For
mitigating
judge may
some
factors which a trial
take into considera
imposing
ages
relationship
tion in
the
a sentence are the relative
and
parties
sympathetic sentencing
involved. We note that a more
presented
situation would have been
year-old
than in the case at bar had a 17-
prosecuted
defendant been
for relations with his almost 16-
year-old girlfriend.
People
v
argues
"Defendant also
that
the trial court erred in
restricting
the cross-examination
regard
complainant’s
her mother
allegedly
A
life-style.
judge
'streetwise’
trial
is afforded wide
cross-examination,
discretionary
limiting
latitude
and his
not
appeal
decision will
be reversed on
absent a
People
Taylor,
v
clear abuse of that
discretion.
(1971).
204, 208;
Here,
In 416 Mich 330 NW2d (1982), this Court was confronted with a simi- lar issue in a first-degree sexual conduct case. There we held that evidence of the complain- reputation ant’s as a prostitute was irrelevant impeach her and to the credibility issue of consent.
The exclusion
regarding
complain-
ant’s
lifestyle
is even more
compelling
present
First,
mentioned,
case.
as previously
there
is no issue of consent
in a statutory
rape charge
because
a victim below the age of consent
is con-
clusively presumed
to be legally incapable
giv-
issue,
below,
Because we decide this
as did the courts
on the
ground
proffered
irrelevant,
narrow
cross-examination was
law,
Michigan’s "rape
we need not determine whether
shield”
28.788(10),
750.520j;
applicable
to exclude
the evidence
Williams,
25, 32;
this case. See
ing intercourse.16 his or her consent to sexual any complainant Second, ally was sexu- evidence that experienced would be irrelevant to attack her Finally, truthfulness. MRE 608. we character logical connection between such evidence find no complainant’s alleged filing charges bias against defendant. foregoing,
Thus, on the basis of the we find that court did not abuse its discretion in the trial excluding this evidence. Improper Argument
IV. Prosecutor’s during Defendant refers to several instances prosecutor improperly trial where he claims tending argued support a or elicited rape. theory of Defendant that forcible contends as placed predicament a in the result he was having greater uncharged to defend required by offense without fair notice as due process.
The initial reference to occurred forcible during prosecutor’s opening statement when argued complainant "unwilling he was an partner”. grounds given We find no for reversal objection im- defendant’s to this remark was mediately by sustained the trial court. complainant,
Then, on direct examination of the prosecution inquired into evidence of bullet by holes on the dashboard of the car driven defen- putting dant, defendant’s use of razor blade plate, being on the car’s license gun told trunk, that a was in the vehicle’s
although
gun
was not found at the time
Bennett,
People Gengels,
218 Mich
the events to the sex- explain complainant’s depar- act, ual and to covert summoning ture from the motel room and the police. Spillman, the 313, See v 399 Mich (1976). 321; However, NW2d view the overwhelming defendant, evidence we any may find that which error have resulted from jury introduction of this before beyond harmless a reasonable doubt.17 singles prosecutor’s Defendant next out the in- quiry examining physician as to whether he expert was "an in sexual as assault matters” example prosecutor’s injection another Again, forcible evidence. we find no cause objection reversal where the defendant’s to this particular question by was sustained the trial court. during closing argument, prosecutor
Last,
jury
regarding
testimony
reminded the
about the
gun
quickly
knife,
and the
but
this
dismissed
testimony
only argued
the elements
charged
timely
offense. The
did
not
object
argument
alleged preju-
to this
at
This
trial.
by
prosecutor
closing argu-
dicial remark
prejudicial
ment where the
effect was minimal and
People Robinson,
(1972);
See
386 Mich
V. Conclusion Legislature intentionally We find that the omit- ted the defense of a reasonable mistake of from its nal sexual conduct definition of crimi-
involving 16-year-old. a 13- to *17 Moreover, we hold that this defense is not consti- tutionally compelled.
Furthermore, we find that the trial court did not excluding regard- abuse its discretion in ing complainant’s lifestyle since such evidence was impeach credibility irrelevant her or to show her bias toward defendant.
Finally, requiring we find no error in reversal prosecutor’s brief references to evidence of argument jury forcible in his to the and on direct examination of the and the examining physician.
Accordingly, we affirm defendant’s conviction. Ryan, Brickley, Cavanagh, Boyle, JJ., and Williams, concurred with C.J. (dissenting). J.
Kavanagh, Defendant was con- by jury victed third of criminal sexual conduct in the
degree, 750.520d(l)(a); 28.788(4)(l)(a), 7, trial, March 1980. Prior to present defendant moved to be allowed to age, arguing defense of mistake of that conscious- wrongdoing ness of is an essential element of liability. Defendant’s motion was denied. v Dissenting Opinion by Kavanagh, J. Defendant’s entire defense at trial was mistake of honestly fact. He claimed that he believed that the prosecutrix was 17 at the time of the Appeals offense. The Court of affirmed defendant’s unpublished per opinion. conviction in an curiam Michigan long history has a of insistence on the felony establishment of mens rea in cases. In Pond (1860), People, Campbell 150, v 8 Justice observed:
"A criminal intent is a necessary ingredient every crime. And therefore it is well remarked Baron Thurborn, Regina 832, Parke in 2 C K& 'as the law, justice reason, rule of founded on is that actus reum, rea, non facit nisi mens sit guilt depend accused must on the they circumstances as appear to him.’ Bishop expressed And Mr. has the same very clearly, rule party, by declaring 'in all cases where a carelessness, without fault or is misled concern- facts, ing justified acts as he doing would be in if be, facts were what he believed them to he is legally L, as he morally innocent’: Bish Cr 242.” § Fitzgerald principle
Justice adverted to this quoting Gegan, Criminal Homicide Revised New (1966), York Law, Penal LNY Forum Aaron, 708; 299 NW2d (1980): *18 " 'If one had to choose the principle most basic of the * * * general criminal liability law in it would be that criminal causing particular for justified result is not culpable absence of some in respect mental state * * that result
Disallowing a defense of
reasonable mistake
proof
practice
fact obviates
of mens rea. While this
approved
has been
cases,
in misdemeanor
we are
case,
cited no
one,
nor has our research uncovered
Recognizing the defense of a reasonable mistake rape, however, to a does imply not the defendant must have in fact person age. Instead, under known the when only raised, the defense is the factfinder need honestly determine whether the defendant be- prosecutrix and, so, lieved that the was an adult if whether the belief was reasonable.
Reasonable mistake should not be con- fused with the rule that a tory under the statu- legally incapable of consent. Consent of underage person is not the issue here. It is the gravamen defendant’s state of mind. The charged voluntary offense is intercourse with an underage person. proof Just as of coercion of a charge, defendant would defeat the so should de- age. fendant’s reasonable mistake of the fact of In rea, neither instance could there be mens each case there would be no free election to do the thing forbidden. J., J.
Levin, Kavanagh, concurred with