State v. MartinezState v. Martinez
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- Before:
- Greenwood
Lead Opinion
OPINION
BILLINGS, Judge:{1 Michael Martinez (Defendant) appeals his conviction for unlawful sexual activity with a minor in violation of
BACKGROUND
1 2 Nineteen-year-old Defendant had sexual intercourse with a fifteen-year-old girl. Defendant was charged with one count of rape, in violation of
13 The trial court denied the motion, ruling unlawful sexual activity with a minor is a strict liability crime, and Defendant was not entitled to produce evidence that he mistook the victim‘s age. Defendant subsequently entered a conditional guilty plea to unlawful sexual activity with a minor. Defendant now appeals the trial court‘s ruling that unlawful sexual activity with a child is a strict liability crime.
ISSUES AND STANDARD OF REVIEW
$4 Whether unlawful sexual activity with a minor is a strict liability crime is a question of statutory interpretation which “we review for correctness and give no deference to the conclusions of the trial court.” Adkins v. Uncle Bart‘s, Inc., 2000 UT 14, ¶ 11, 1 P.3d 528; see also Platts v. Parents Helping Parents, 947 P.2d 658, 661 (Utah 1997) (stating that “matters of statutory construction are questions of law that are reviewed for correctness“).
115 If we conclude that unlawful sexual activity with a minor imposes strict liability, we must determine whether eliminating a culpable mental state as to the victim‘s age violates Defendant‘s federal due process rights. “A challenge to the constitutionality of a statute presents a question of law, which we review for correctness, according no deference to the trial court‘s ruling.” Provo *116City v. Whatcott, 2000 UT App 86, ¶ 5, 1 P.3d 1113.
ANALYSIS
Strict Liability Under
16 Defendant argues the trial court erred in ruling that
17 “It is ‘a fundamental rule of statutory interpretation ... that a statute “be looked at in its entirety and in accordance with the purpose which was sought to be accomplished.“‘” W.C.P. v. State, 1999 UT App 35, ¶ 8, 974 P.2d 302, cert. denied, 984 P.2d 1023 (Utah 1999) (citations omitted). We conclude that the legislature intended a violation of
T8 The plain language of Utah‘s criminal code explicitly precludes the defense of mistake of fact regarding the victim‘s age in crimes involving sexual acts against children:
It is not a defense to the crime of unlawful sexual activity with a minor, a violation ofSection 76-5-401 , ... that the actor mistakenly believed the victim to be 16 years of age or older at the time of the alleged offense or was unaware of the vietim‘s true age.
19 Defendant acknowledges he may not raise mistake of age as an affirmative defense, but argues a mens rea is nonetheless an element of unlawful sexual activity with a minor that the State must prove. Defendant first argues that the burden of proof differs between a mens rea require*117ment and an affirmative defense. Contrary to Defendant‘s assertion, “ilt is fundamental that the State carries the burden of proving beyond a reasonable doubt each element of an offense, including the absence of an affirmative defense once the defense is put into issue.” State v. Hill, 727 P.2d 221, 222 (Utah 1986); see also
‘[ 10 Applying this principle to
11 Defendant further argues that mens rea differs from an affirmative defense in that the former is based on objective criteria whereas the latter is based on subjective criteria. Defendant quotes our supreme court‘s opinion in State v. Elton, 680 P.2d 727 (Utah 1984):
There is no inconsistency in requiring a mens rea of criminal negligence as to age and an affirmative defense of mistake of fact as to age. The mens rea requirement may be based on objective criteria, while the ignorance or mistake of fact defense bears upon the subjective state of mind of the defendant.
Id. at 730 (emphasis added)*4 Defendant argues that Elton and section 76-2-304.5 establish a sort of evidentiary rule permitting the State to present objective evidence bearing on the mens rea, such as the victim‘s appearance, demeanor, and statements to Defendant, but prohibiting Defendant from presenting evidence of his contemporaneous subjective opinion of the victim‘s age. We disagree.
112 Defendant misunderstands the Elton court‘s reference to subjective and objective criteria. That comment does not refer to the type of evidence that the parties may present, le., objective facts versus subjective opinions. Rather, it refers to whether the defendant‘s mental state is to be judged by what the defendant was actually aware of-a subjective test-or what the defendant ought to have been aware of-an objective test.5 Because the Elton court held that the defendant could be convicted for criminal negligence, the mens rea could be based on objective criteria: what the defendant ought to have been aware of. See id. at 729-30. Neither Elton nor section 76-2-304.5 establishes any evidentiary rule, by implication or otherwise.6
€{13 Defendant finally argues that the Utah Supreme Court has previously held that
T14 In concluding section 76-2-304.5(2) imposes strict liability, we note that we have previously held that nearly identical parallel language in section 76-2-304.5(1) indicates a legislative intent to impose strict lability for sexual acts against children under fourteen.9 See W.C.P., 1999 UT App 35 at ¶¶ 6-10, 974 P.2d 302. We observed that by “expressly removing] mistake as to age as a defense,” “the criminal code‘s treatment of this issue evinces a clear legislative intent to impose strict lability.” Id. at ¶ 10. Notably, no such provision precludes a mistake of fact defense when the alleged vietim is a minor of sixteen or seventeen.
€15 Finally, we note that a majority of jurisdictions impose strict liability for sexual offenses against fourteen- and fifteen-year olds under statutes similar to Utah‘s. See Colin Campbell, Annotation, Mistake or Lack of Information as to Victim‘s Age as Defense to Statutory Rape, 46 A.L.R.5th 499, 508 (1997).10
T16 We conclude that
Constitutionality of
117 Defendant next argues that if
*11918 We are persuaded by the reasoning of a decision from the United States Court of Appeals for the Tenth Circuit which held that the absence of a mens rea in a federal statutory rape statute did not render the statute unconstitutional. See United States v. Ransom, 942 F.2d 775, 776-77 (10th Cir.1991).
T19 In Ransom, the defendant was charged with having sexual intercourse with a girl under the age of twelve, in violation of
120 The court in Ransom reasoned that “Itlhe Supreme Court has recognized that the legislature‘s authority to define an offense includes the power ‘to exclude elements of knowledge and diligence from its definition‘“” Id. (quoting Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 242, 2 L.Ed.2d 228 (1957)). Therefore,
[i]n order to show that the exercise of [the legislature‘s] power is inconsistent with due process, appellant must demonstrate that the practice adopted by the legislature “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” That is not the case here. The history of the offense of statutory rape indicates that from ancient times the law has afforded special protection to those deemed too young to understand the consequences of their actions.
Ransom, 942 F.2d at 777 (quoting Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934)).
121 Defendant concedes that states have historically imposed strict eriminal liability for sexual activity with children, but takes issue with the age at which our legislature has drawn the line for imposing strict liability. Defendant insists there is a fundamental distinction between children thirteen years old and children fourteen years old for constitutional purposes. Although imposition of strict Hability may at some point run afoul of the Constitution, we cannot say, as Defendant argues, that Utah‘s statutory scheme for protecting minors from sexual encounters lacks any acceptable rationale for imposing strict liability.
122 Utah‘s criminal laws protecting minors from sexual encounters divides minors into three age groups and afford greater protection for progressively younger minors in three ways. First, the class of persons subject to felony prosecution expands as the age of the minor decreases.11 Second, sexual activity with the youngest group is penalized most severely.12 Third, mistake as to the age of the minor is a defense if the minor is sixteen or seventeen, but not if the minor is under sixteen. See
123 This statutory scheme reflects our legislature‘s careful consideration of the level of protection required for minors of different ages. We simply cannot say that our legislature‘s determination to preclude the mistake of age defense for sexual activity with a minor fourteen or fifteen is so arbitrary as to run afoul of the Constitution. Like the statute at issue in Ransom,
124 To satisfy substantive due process, a statute must rationally further a legitimate governmental interest. See Ransom, 942 F.2d at 777. The Ransom court concluded:
the statute rationally furthers a legitimate governmental interest. It protects children from sexual abuse by placing the risk of mistake as to a child‘s age on an older, more mature person who chooses to engage in sexual activity with one who may be young enough to fall within the statute‘s purview.
Id. at TT7 (citations omitted). Our state legislature likewise has a legitimate interest in protecting the health and safety of our children. We therefore conclude that
CONCLUSION
“I 25 We conclude
26 I CONCUR: PAMELA T. GREENWOOD, Presiding Judge.
Notes
. Under the facts of the present case, unlawful sexual activity with a minor is a lesser included offense to rape, the sole distinction being whether the victim consented. Compare
.
(1) For purposes of this section “minor” is a person who is 14 years of age or older, but younger than 16 years of age, at the time the sexual activity described in this section occurred.
(2) A person commits unlawful sexual activity with a minor if, under circumstances not amounting to rape, in violation ofSection 76-5-402 , object rape, in violation of Section 76-5-402.2, forcible sodomy, in violation of Section 76-5-403, or aggravated sexual assault, in violation of Section 76-5-405, the actor:
(a) has sexual intercourse with the minor
(3) A violation of Subsection (2) is a third degree felony unless the defendant establishes by a preponderance of the evidence the mitigating factor that the defendant is less than four years older than the minor at the time the sexual activity occurred, in which case it is a class B misdemeanor.
Two days after Defendant committed the crime, an amendment to subsection three became effective, making a violation of
. Our able colleague in dissent chooses to make a thorough and persuasive argument for why we should determine the element of the victim‘s age is not one of strict liability. We do not feel free to do so. It is our view that the plain statutory language in our criminal code, see
. The Elton court seemed to be struggling with a perceived inconsistency between imposing liability for criminal negligence and permitting an affirmative defense of mistake of fact. See Elton, 680 P.2d at 730. As we have shown, the inconsistency lies instead where the affirmative defense is prohibited but the mens rea is required.
, Liability for criminal negligence attaches where the defendant “ought to be aware of a substantial and unjustifiable risk,”
. Indeed, such a rule would be anathema to our system of justice. If proof of an element of a crime is required, then the defense must be permitted to meet the State‘s evidence with any relevant admissible evidence. Defendant‘s testimony as to his subjective opinions would clearly be relevant and admissible. The only exception is where strict liability eliminates the mens rea requirement as to an element of a crime, rendering evidence bearing on Defendant‘s mental state irrelevant to that element.
. - At the time of the Elton decision,
. We also note that our legislature has relaxed the standard for determining whether a crime should be interpreted as one of strict liability. Previously, a crime was considered strict liability “only when a statute defining the offense clearly indicate([d] a legislative purpose to impose strict liability for the conduct by use of the phrase ‘strict liability’ or other terms of similar import.”
.
[it is not a defense to the crime of child kidnaping, ... rape of a child, ... object rape of a child, ... sodomy upon a child, ... sexual abuse of a child, ... aggravated sexual abuse of a child, ... or an attempt to commit any of those offenses, that the actor mistakenly believed the victim to be 14 years of age or older at the time of the alleged offense or was unaware of the victim‘s true age.
. Jurisdictions imposing strict liability include Alabama, Arizona, Colorado, Connecticut, Delaware, Florida, Hawaii, Idaho, Illinois, Louisiana, Maryland, Massachusetts, Michigan, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, South Dakota, Texas, Virginia, and Wisconsin. See Colin Campbell, Annotation, Mistake or Lack of Information as to Victim‘s Age as Defense to Statutory Rape, 46 A.L.R.5th 499, 510-13.
. Consensual sexual activity with a minor sixteen or seventeen years old is a felony only if the older participant is at least ten years older than the minor. See
. - Sexual activity with a minor under fourteen is a first degree felony. See
Dissenting Opinion
(dissenting):
127 I dissent from the majority opinion. It is my view that
[ 28 The basic principle of criminal Hability in our system is expressed by the maxim, actus not facit reum nisi mens sit rea-an act does not make one guilty unless one‘s mind is guilty. The Supreme Court of the United States has acknowledged that legislatures may eliminate the mens rea element from certain crimes. However, the Court has made the following doctrinal observations: “[Wle must construe [a] statute in light of the background rules of the common law ... in which the requirement of some mens rea for a crime is firmly embedded.” Staples v. United States, 511 U.S. 600, 605, 114 S.Ct. 1793, 1797, 128 L.Ed.2d 608 (1994). “‘[Thhe existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American - criminal - jurisprudence.!” United States v. United States Gypsum Co., 438 U.S. 422, 436, 98 S.Ct. 2864, 2873, 57 L.Ed.2d 854 (1978) (citation omitted).
The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.
Morissette v. United States, 342 U.S. 246, 250, 72 S.Ct. 240, 243, 96 L.Ed. 288 (1952). “There can be no doubt that this established concept has influenced our interpretation of criminal statutes.... Relying on the strength of the traditional rule, we have stated that offenses that require no mens rea generally are disfavored....” Staples, 511 U.S. at 605-06, 114 S.Ct. 1793 (emphasis added); see also Liparota v. United States, 471 U.S. 419, 426, 105 S.Ct. 2084, 2088, 85 L.Ed.2d 434 (1985); cf. United States Gypsum, 438 U.S. at 438, 98 S.Ct. 2864.
129 Courts have generally looked to the following factors to determine whether a statute should be interpreted as imposing strict liability: (1) the statute‘s legislative history, title, or context; (2) other statutes that may provide guidance as to whether *121strict Hability was intended; (8) the severity of the punishment-the greater the possible punishment, the more likely mens rea is required; (4) the seriousness of the harm to the public which may be expected to follow from the forbidden conduct; (5) the defendant‘s opportunity to ascertain the true facts-the harder to find out the these facts, the more likely the Legislature meant to require fault in not knowing; (6) the difficulty prosecuting officials would have in proving a mental state for this type of crime; and (7) the number of prosecutions expected-the greater the number, the more likely the legislature meant to impose strict liability. See 1 Wayne R. LaFave & Austin W. Scott, Substantive Criminal Law § 3.8 (1986); see also Reese v. State, 106 N.M. 498, 745 P.2d 1146, 1150-51 (1987) (Ransom, J., concurring); State v. Stoehr, 134 Wis.2d 66, 396 N.W.2d 177, 180 (1986); of State v. Semakula, 88 Wash.App. 719, 946 P.2d 795, 797-98 (1997).
T 30 The majority concludes that the crime of unlawfal sexual activity with a child is a strict dability offense because
T 31 Analyzing the first factor-the legislative history of the statute, its title, and its context-I do not find support for the proposition that the Legislature intended section 76-5-401 to describe a strict liability offense. The State claims that the legislative history of section 76-5-401 supports the argument that the Legislature intended a strict liability offense. However, the legislative statements cited by the State merely shed light upon the 1998 amendments to section 76-5401.1 Furthermore, neither the title nor the context2 of section 76-5-401 lends support to the proposition that unlawful sexual activity with a minor should be construed as a strict liability offense.
132 Additionally, the plain language of
133 The second factor used by courts to determine whether a statute should be interpreted as a strict lability offense-whether other statutes and case law support strict liability-also cuts against the majority‘s position. Specifically, I do not find our decision in W.C.P. v. State, 1999 UT App. 35, 974 P.2d 302, as supporting the conclusion that
€34 I do not agree with the proposition that this court should look to other sections in the criminal code to determine whether the Legislature intended a crime to be one of strict liability because the statute governing strict liability offenses in this jurisdiction explicitly states that the statute defining the crime must clearly indicate a legislative purpose to impose strict liability. See
135 The third factor, the severity of the punishment, is perhaps the most compelling factor used by courts to determine whether a statute should be interpreted as a strict liability offense. Here the severity of the punishment cuts against the proposition that the Legislature intended that
This section makes a frontal attack on absolute or strict liability in the penal law, whenever the offense carries the possibility of criminal conviction, for which a sentence of probation or imprisonment may be imposed.... The liabilities involved are indefensible, unless reduced to terms that insulate conviction from the type of moral condemnation that is and ought to be implicit when a sentence of probation or imprisonment may be imposed.
Id. erat. 1.
T36 The severity of the punishment for violating section 76-5-401 strongly weighs against finding that it is a strict liability offense. Unless the defendant can put on evidence mitigating the level of offense, the violation of this statute is a third degree felony that carries severe direct and collateral consequences. A person who has been convicted of unlawful sexual activity with a minor may be sentenced to imprisonment for up to five years in the Utah State Prison. See
T37 The fourth factor, whether unlawful sexual activity with a minor creates serious harm to the public, is contextual and does not necessarily indicate a legislative intent to impose strict liability. This is not to say that unlawful sexual activity with a minor may not be seriously harmful in certain cases. On the contrary, I consider the crime to be of such a nature that while it could be seriously harmful to a minor or the public in one case, it may be far less harmful in another case. Due to the factually intensive inquiries that need to be conducted in determining the culpability of a defendant accused of unlawful sexual activity with a minor, I do not find that the crime is one that is so absolutely *124harmful that the Legislature meant to impose liability without regard to fault.
88 The fifth factor courts look at in determining whether the Legislature intended to create a strict liability offense is the defendant‘s opportunity to ascertain the true facts. “The harder to find out the truth, the more likely the legislature meant to require fault in not knowing; the easier to ascertain the truth, the more likely failure to know is no excuse.” 1 Wayne R. LaFave & Austin W. Seott, Substantive Criminal Law § 8.8 (1986). This factor is particularly fact intensive and can involve, among other things, the true age of the minor, his or her appearance, level of maturity, representations made by the minor and the cireumstances surrounding the relationship. These matters can be addressed without regard to a defendant‘s subjective belief and should be determined by a jury or court as fact finder. Thus, it is unlikely that the Legislature meant section 76-5-401 to describe a strict liability offense because there may be numerous occasions when a reasonable person would be unable to ascertain the minor‘s true age.
139 The sixth factor in determining whether the Legislature intended section 76-5-401 to be a strict liability offense is the difficulty the prosecution would have in proving the mental state for this type of crime. Although the Legislature, in a separate seetion of the criminal code, declared that the actor‘s mistaken belief respecting the age of the minor was not a defense to unlawful sexual activity with a minor, I do not agree with the assertion that to require the State to prove a mens rea is to allow the defendant, in rebuttal, to assert a mistake as to age as an affirmative defense.
140 “Every offense not involving strict liability shall require a culpable mental state, and when the definition of the offense does not specify a culpable mental state and the offense does not involve strict lability, intent, knowledge, or recklessness shall suffice to establish eriminal responsibility.” _
when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor‘s standpoint.
1 41 A prosecution under section 76-5-401, requiring the State to prove that the defendant was criminally reckless as to the minor‘s age, would not allow the defendant to rebut evidence of recklessness by establishing the defendant‘s subjective belief as to the minor‘s age. Specifically, the State could prove that the defendant acted recklessly by introducing evidence regarding the minor‘s appearance at the time in question, the minor‘s statements, the setting in which defendant met the minor, and other evidence indicating that defendant was aware of a risk that he or she was involved with a minor under sixteen years of age. Perhaps most importantly, the jury or court as fact finder would have an opportunity to observe the minor. The defendant could then rebut by showing that his disregard of the risk did not constitute a gross deviation from the standard of care that an ordinary person would exercise, without regard to his mistaken belief, but on his or her own actions and whether an ordinary person would have exercised a greater degree of care. Even if the State‘s evidence otherwise opened up the issue of defendant‘s subjective belief, he could rebut without any reference thereto by objective evidence relative to the minor‘s age. Thus, depriving the defendant of the affirmative defense of his mistaken belief as to the minor‘s age does not convert an offense described in section 76-5-401 to a strict liability offense.
42 The final factor that courts look at in determining whether the Legislature intended to create a strict liability offense is the number of prosecutions expected-the greater the number, the more likely the Legislature *125meant to impose strict liability. Because unlawful sexual activity with a minor is a consensual act7 that presumably cceurs under less than open cireumstances, it is improbable that there will be a high number of prosecutions for this crime. Therefore, it is unlikely that the Legislature intended to make section 76-5401 a strict liability offense as a way of easing the burden created by a very high number of prosecutions.
43 The existence of mens rea is the rule rather than the exception in American criminal jurisprudence, and courts should be extremely cautious when attempting to determine a clear legislative intent to create a strict liability offense, especially where the legislature has not done so. Therefore, in light of the above analyses and because the statute defining the offense does not indicate a clear legislative purpose to impose strict liability, I do not find that the Legislature intended section 76-5-401 to be a strict liability offense. Accordingly, I would reverse the trial court‘s conclusion that the crime of unlawful sexual activity with a minor is a strict liability offense and I would remand defendant‘s case so that he could withdraw his conditional guilty plea.
. These amendments focused on the type of prohibited sexual activity and the age difference required for a lower level of offense.
. In fact, in looking at section 76-5-401 in the context of the chapter of the criminal code in which the crime is defined-Chapter 5, Offenses Against the Person-it is clear that almost all of the offenses described therein require some level of criminal intent.
. If a crime is a strict liability offense, the defendant‘s age is irrelevant because the defendant‘s culpability is determined by the mere commission of the forbidden act.
. Section 76-2-304.5 eliminates mistake as to the minor‘s age as a defense to both rape of a child and unlawful sexual activity with a minor.
. _ It appears that strict liability offenses that pass constitutional muster almost invariably involve minors of very tender years suggesting a sort of presumptive level of culpability, i.e., the younger the minor, the less likelihood of a mistake as to age.
. See
. If it were not consensual, the defendant would more appropriately be charged with rape under