State v. Yanez

necessarily themselves from nors distance by coverage provided insuring STATE par- policy. This third

agreements in this coverage ty liability insurance affords the insured can for occurrences Alejandro YANEZ. anticipated legally If the be held liable. 97-110-C.A. No. by damage not necessitated property faulty performance, American National’s Island. Supreme of Rhode for which then we have occurrence legally lia- American National can be held Aug. ble. ‡

‡ ‡ ‡ ‡ placement injury “But if the of the per- fireproofing, then the work defective applies, around and formed exclusion go again.” around we justice Accordingly, although the trial faulty her incorrect in determination fireproofing constituted an installation policy provisions, occurrence under she correctly damages facing concluded that subject Windswept perfor- are to the work policy exclusions in the mance contained coverage which no is available.

IV Conclusion We conclude that the certificates of insur- ance issued American Wilson on behalf coverage of General Accident reflect extend- They ed to American under SMP 610915. do independent insur- not constitute contracts of Ameri- ance issued General Accident to can, principle nor shall we utilize es-

toppel imply a in the contract context of damages facing Windswept The case. subject performance

are the work exclu- policy 610915 for sions contained SMP Therefore, coverage is which no available. any obligation Accident is relieved of General cover the claims. appeal The is denied and dismissed and appealed from is affirmed. judgment papers the case are remanded Superior Court.

BOURCIER, J., participate. did not

OPINION

GOLDBERG, Justice. principal presented by The issue this ease is whether a reasonable mistake fact con- complainant’s cerning a may be asserted a charge to a of statutory-rape. For the opinion, reasons articulated in this we hold that with require- first-degree ment child-molestation sexual strict-liability assault is a offense. Conse- quently charged a of- defendant with this fense not introduce evidence that he regarding she was age, mistaken the child’s is a jury nor defendant entitled to a instruc- regarding tion A same. recitation of the is in facts order.

Facts defendant, (Yanez), Alejandro Yanez eighteen-years-old engaged

was when he (a consensual sexual intercourse with Allison name), case, fictitious the victim this who thirteen-years-old was at the time. The two other, were first introduced each albeit briefly, so in August nearly year ever a before this incident. Allison testified attending Portuguese was she festival with girlfriend boy- when she saw her aunt’s friend, (Victor), Victor Yanez defendant’s Allison, According brother. who at only time was Victor twelve-years-old, intro- duced her Yanez. For the next eleven months virtually Allison and Yanez had except contact with each obliga- other for the tory passing. day “Hello” one Then mid-July while Allison walking was friends, park the local to meet she saw Yanez cruise in his Trans Am white convertible top with the down. She testified that she Yanez, proceeded waved to to turn who Am Trans around and offer her a ride. street, park Since the across the invitation, Allison declined Yanez’s but when persisted. he Allison acceded. The two Weisman, Attorney Aaron L. Asst. Gener- briefly during quarter-mile trip. talked al, plaintiff. gave telephone Yanez Allison his name and number, briefly again and the two conversed Ciresi, Providence, Mary June for defen- night telephone. on the dant. day telephone

The next Allison received WEISBERGER, C.J., Before message from either her mother or her sister LEDERBERG, BOURCIER, FLANDERS that Yanez had called her and asked that she GOLDBERG, JJ. him call back. Allison returned Yanez’s tele- explained Allison later call, arrangements son Derek. two called phone and the made identity be- Joseph’s St. Yanez’s parking to meet in the lot behind had lied about she the church Warwick. From know Church West her mother to cause did want she two in Yanez’s car and went for left engaged in sexual intercourse that she had Allison, they proceeded According to ride. investiga- police A subsequent with Yanez. they a friend of Yanez’s where to the home of had having tion that Yanez admitted revealed on engaged in consensual sexual intercourse but insisted with Allison sexual intercourse the floor in a back bedroom. that she was six- that had told him Allison having told teen-years-old. of their first Allison denied Following the conclusion and, Af- quite returned late. “date” Allison home was Yanez that she sixteen house, proceeded Allison entering ter fact, two three in that on the or testified directly whereup- to the bathroom to shower her inquired Yanez had about occasions when by subsequently confronted her on she was responded that she was age, she had bathroom, mother. Allison’s While thirteen. floor mother noticed her on the underwear count first- on one Yanez was indicted engaged if she had in sexual inter- and asked assault in vi- degree sexual child-molestation having had initially course. Allison denied §§ 11-37- 11-37-8.1 and olation of G.L.1956 evening that but later ad- sexual intercourse 8.2, testimony although the trial would later Subsequently mitted truth. Allison’s an isolated incident reveal that this was not police, whereupon mother Alli- contacted sordid, equally and there were more in that two engaged she son admitted that had trial encounters.1 At defense partner per- uncharged named her intercourse but Um, walking I down the road "[Allison]: that the un- was Far from the dissent’s contention park going Wakefield Street to meet charged to off before this sexual encounters occurred friends, go going my we were to then charged and Yanez incident that Allison going, other, forget were but we I where we out. actually dating were the record sim- each go going to and I had were out somewhere ply Although we not contain this inference. does stopped he and he me if Alex and asked seen entirety are confident that the taken in record no, him it wanted ride. I told because I supports our conclusion that Allison Yanez there, asking. He right thanks but dating, highlight were we Alli- not nonetheless give you anyway, and I said said I’ll one testimony we son’s to counter the notion that sure.” ignored have or the record in this misconstrued cross-examination, Later, during Allison testi- case. concerning one chance encounters fied of her [Allison], meeting the de- ’’[Prosecutor]: after with at her aunt's home. Yanez carnival, fendant, you Portuguese at the did couple just have a "[Defense I Counsel]: again? see him ever have occasion to you questions. At the time indicated more Um, couple of I seen him a times in "[Allison]: your you at met Yanez aunt's that Mr. my passing and I think I him once at seen house? house. aunt’s Yes, "[Allison]: ma’am. you Can how it would "[Prosecutor]: describe present Counsel]: Victor Yanez was "[Defense pass you would see him in time, come correct? at the home passing? Yes, he pretty sure was. "[Allison]: I'm coming like Just either me home "[Allison]: your aunt was there Counsel]: And "[Defense going time, school or down to basketball correct? at that court, something. Yes, and he would drive or ma’am. "[Allison]: ‘hi,’ it. they getting I would wave that’s about And were "[Defense Counsel]: you Did conversations "[Prosecutor]: ready to leave? Yes, during period of time? him with ma’am. "[Allison]: you going to "[Allison]: No. were “[Defense Counsel]: And you How baby-sit? "[Prosecutor]: Well let me ask this. many many long, or how weeks how months Yes. "[Allison]: stopped you Mr. Yanez go would see him occa- And "[Defense Counsel]: did it on brother, you that? you do recall sionally wave? to see his would Yes, year. ma’am. "[Allison]: At least half a “[Allison]: a brief And there was "[Defense Counsel]: you? refreshing the two relating Alli- between [Testimony introduction Yes, ma’am. year "[Allison]: memory concerning she first met son’s took And no conversation Counsel]: "[Defense omitted.] Yanez is point, place my question, at that correct? "[Prosecutor]: [Alli- I believe last son], relationship progress? No. "[Allison]: did was how law, attempts counsel numerous intro- under of this made “Now the terms only demonstrating evidence Ya- prove duce not need the act of concerning nez’s mistaken belief Allison’s against intercourse was committed concerning appar- Thus, also evidence but Allison’s of the victim. in wishes order maturity light appearance, ent her guilty, you return a verdict of the State physical development, and one, demeanor. required prove, is number that this justice rejected this defendant, Yanez; trial evidence and deter- two, Alejandro or mined that cases which conduct made Warwick; 15, 1993, July about West minor, criminal the victim a because three, engage did fact sexual inter- ignorance mistaken belief with [Allison]; four, course that at the to the victim’s is not available. time, you he engage are satisfied did justice trial The further that he indicated [Allison], sexual intercourse with at the jury to the charge intended with to she 14 years. time was under the of unavailability the this of defense and conse- law The also states when conduct is made quently charge declined to in accordance minor, is a criminal because the victim requested with Yanez’s mistake fact in- of in Rhode the Island context of this [in pertinent portion structions. The of the trial 14, age being that it is no case] justice’s charge jury the reads as follows: ignorant the mis- that defendant was of or day “The defendant is accused that aon age. as to taken the victim’s And it mat- 14, July and dates July between 1993 and not that belief ters his mistaken was rea- 15, 1993, Warwick, Alejandro at West Ya- sonable.” nez engage penetration, did sexual Following Superior a deliberations intercourse, [Allison], wit sexual with a jury first-degree convicted Yanez of child- person age, under 14 of in violation justice molestation sexual The trial assault. of the laws of the State of Rhode Island. twenty sentenced Yanez the minimum person degree Now is of first child year suspended eighteen years but sentence assault, molestation, sexual if or she he probation. of sentence with The trial engages penetration per- sexual with justice also ordered that Yanez have no con- son 14 or under. Sexual and, twenty years tact with Allison for penetration includes sexual intercourse. law, by required register that Yanez with the law, By sexual intercourse is defined police local as a authorities convicted sex penetration vagina by penis. pend- Yanez on bail offender. was released There are two essential to first elements ing appeal. the outcome of this degree child molestation sexual assault. First, engage though must in sexual that agree defendant We note even we do not alleged intercourse by with victim. And with the account of the facts set forth second, the victim under the dissent —and we saw no reiterate that evi- years. actually dence that Allison were and Yanez hi, Yes, by[e], just "[Defense It Counsel]: was like a "[Allison]: ma’am. and that’s the end of it? you allege you that were "[Defense Counsel]:— "[Allison]: Yeah." my with client? support suggest Thus we And no in the record to Yes, "[Allison]: ma’am. that had Allison and Yanez encoun- sexual your testimony it "[Defense Counsel]: Is ter, or for that had conver- matter even had a * * * spoke July you on with Denise 14th? sation, briefly they day until talked on speak I "[Allison]: think I did her later Yanez drove down the to meet Allison street night. on 14, park. day, July her friends at the The next night your “[Defense Counsel]: That’s 1993, engaged Yanez Allison and in sexual you mother asked whether or not had had intercourse floor of a bedroom on the back sex? . belonging to one Yanez's friends. Allison's Yes, ma'am.” "[Allison]: testimony cross-examination that this reveals portion regard cited the dissent incident time was the first she and Yanez had suggesting that the incident at the friend’s engaged in intercourse. encounter, actually was house the third your testimony "[Defense Counsel]: Is it we believe that answer refers to fre- July Allison’s 14th of the first quency geography chronology. time— but minor). Athough states have with a some dating are satisfied that even —we true, Assembly through leg- nev- lead —most version was the General California’s followed charge statutory-rape majority er intended of courts islative enactments —the jury. With this be sorted out should this issue continue that have considered analysis. begin assertion in mind we reject of a victim’s the reasonable mistake statutory-rape and main- age as a defense to I law.3 allegiance to the common tain their involving statuto- We note that our research Fact Mistake of Defense highest ry-rape has revealed that the cases legis The crime of judi- appellate only four states courts of latively England during created in the thir cially recognized the of fact defense. mistake century special pro teenth order afford State, v. 332 Md. See Garnett society too tection to those had deemed (1993). cases, Ml four of these appreciate consequences young to however, distinguishable are case I, them actions. See Statute of Westminster bar. (1275); Coke, c. 1E. The 3 Edw. Second England Part Institute Laws of Hernandez, v. People courts in Ran also United States Cal.Rptr. 393 P.2d 673 Cal.2d som, (10th Cir.1991); 942 F.2d (Utah Elton, (1964), P.2d 727 and State v. 680 731, (R.I.1987). Jordan, 4 v. 528 A.2d 732 n. 1984), expressly upon relied the text of both courts, English generally Thus which had codes, which re respective their criminal recognized the of in mistake fact defense a quired concurrence of an act and men the 1638, prosecutions criminal since did not be crime, tal to constitute a as state order gin discuss this defense in the context of language well in their codes unless until later half the cases the of provided, ignorance or mistake of otherwise century. nineteenth See United States v. culpable a mental state. Fur negates fact Cir.1988). (9th Brooks, 268, F.2d 269 At 841 a upon provi the court relied thermore Elton time, the mistake of fact defense was Code, which stated sion of the Utah Criminal rejected by England courts both striet-liability offense be crime Id.2 United States. only expressly provides if a statute Characterizing statutory-rape as a strict- Elton, required. is 680 state not See mental in every offense law remained the entirely Our Laws are P.2d at 728. General jurisdiction until American 1964. See id. at to those provisions of similar devoid (observing 270 California as the first state Elton; upon in Hernandez and there relied judicial- recognize the of fact mistake defense fore, of aid to Yanez. these cases are no 638, Olsen, ly). People v. But see 36 Cal.3d 492, 52, in which the mistake Cal.Rptr. 205 The other two cases 685 P.2d 59 recognized are judicially of (rejecting the mistake of fact fact defense was defense (Aaska Guest, 1978), involving P.2d 836 cases lewd and lascivious conduct State v. 583 Cash, 230, Ransom, 775, (1993); People 419 Mich. 351 2. See also United States v. 942 F.2d v. (10th 99-594, Cir.1991); Searles, H.R.Rep. 822, (1984); 777 No. re- Vt. 826 State v. 159 N.W.2d printed Cong. Admin. 1281, (1993). in 1986 U.S.Code & News 525, See also Anno- 621 A.2d 1283 6186, ("At 6197 common law there was such tation, as to Vic- Mistake or Lack of Information Cases, 1257, defense”); 78 Recent Harv.L.Rev. Statutory Rape, Age 8 A.L.R.3d tim's Defense (1965). Larry Myers, W. 1257 But see Reason- (1966); 3 Law 285 1100 Wharton’s Criminal Age: Needed to Statuto- able Mistake A of Defense 1995) ("It (Torcia is no defense 69-72 15th ed. 105, (1965) ("rea- ry Rape, 64 Mich.L.Rev. 110 age the female’s that the defendant did know age has been denied as sonable mistake of never age reasonably of her to be of believed case”). rape English statutory in an defense (1972) ("It consent”); Rape § 36 is 65 Am.Jur.2d statute, generally that the held in the absence of Ransom, 777; 3. See 942 F.2d at United States v. knowledge age the female is defendant’s 268, (9th Cir.1988); Brooks, 270 841 F.2d statutory of the crime not an essential element 440, County, Superior 104 Ariz. v. Pima rape is no that the ac- and therefore it 982, (1969); Stiffler, 985 State v. 114 454 P.2d 308, prosecutrix 935, reasonably believed that cused (App.1988); 763 P.2d 310 Gar Idaho consent"). State, age 332 A.2d 804 was of nett v. Md. State, Statutory Interpretation Perez v. 111 N.M. A. 803 P.2d (1990). cases, however, In both of these “It is Legis well established that the (fifteen) age of closely ap- the victims may, pursuant police lature powers, its (sixteen). proached of consent See define criminal offenses without requiring Guest, 837; Perez, 583 P.2d at 803 P.2d at proof specific of a criminal intent so 250. In addition the in Perez court observed provide proceed perpetrator that the at his though that even the mistake of fact defense peril regardless own of his igno defense of is available the victim is ages, between the People rance or an honest mistake of fact.” sixteen, pre- Cash, of thirteen and a defendant is v. 419 Mich. 351 N.W.2d (1984). raising cluded from California, this defense when the See also Lambert 225, 228, 240, 242, U.S. victim under the of thirteen. 78 S.Ct. L.Ed.2d 228, 231 Perez, the final ques As arbiter on generally 803 P.2d at 251. See Her- interpretation, statutory tions of we it nandez, Cal.Rptr. 393 P.2d at 676 n. purpose as our to establish and to effectuate (observing that the disallowance the mis- Legislature’s intent. See State v. Pow girl take of fact defense when is of tender ers, (R.I.1994). “[I]n years is not illogical, although as ambiguity, absence of an this must [C]ourt above, limits are raised to sixteen and this give the words of statute ‘their literal and reasoning begins persuasiveness). to lose ” plain meaning.’ Against backdrop Id. Unlike the circumstances Guest and first-degree we examine our child-molesta fifteen, Perez which the victims were how- tion sexual assault statute. ever, Allison age. thirteen provides Section that: 11-37-8.1 Furthermore, has drawn dis- person degree of first “[a] child upon tinctions based of the victim. molestation assault if he or she example, provides § For 11-37-8.2 a mini- engages penetration per- in with' a sexual penalty years twenty prison mum of in (14) years age son of fourteen or under.” penetration person the sexual of a fourteen The in penetration” term “sexual is defined years of age younger, § or while 11-37-7 11-37-1(8) § as follows: prescribes penalty maximum of five “ intercourse, penetration’ ‘Sexual —sexual prison

in penetration the sexual aof fellatio, intercourse, cunnilingus, and anal person over of fourteen but under intrusion, or slight, other however sixteen, of provided that the accused any part body by any person’s of a or Compare over the eighteen. is of 11- §. object openings or anal of genital into the §§ 37-8.2 with 11-37-6 and 11-37-7. We body, person’s another but emission of se- therefore these conclude that two cases are required.” men is not help of no also to Yanez. Clearly plain meaning words and of

Notwithstanding perspective historical prohibit penetration 11-37-8.1 sexual argues light Yanez of that this Court’s underaged person of an and make no refer- interpretation pen- mind, of term “sexual knowledge, ence to the actor’s state (the 11-37-8.1) §of or opinion etration” first element belief. In our this lack of a mens negligent rea not involving digital penetration, cases see results from omission but State legislative Griffith, (R.I.1995), design. v. 660 A.2d 704 interpretation of the term “sexual contact” correctly Yanez that this has asserts (the 11-37-4) first element of cases in- previously the existence of an im- declared assault, volving second-degree sexual see plied respect mens rea with to the element Tobin, (R.I.1992), v. 602 A.2d 528 State we term in cases of “sexual contact” second- imply require- are a mens constrained to rea assault, Tobin, degree see v. sexual State respect age requirement ment with to the (R.I.1992), and to A.2d 528 some but not all (the 11-37-8.1) second element of in a penetration” acts of “sexual cases first- charge first-degree child-molestation degree sexu- sexual child-molestation assault. See (R.I.1995). disagree. Griffith, al assault. We State v. A.2d 704 respect child’s with of mens rea opinions represent our determination ment These permit a Legislature includ- decline to defendant age. conduct that the has We that of a penetration contact” charged within the definitions “sexual with the sexual ed penetration,” younger other than sexual or “sexual fourteen or child intercourse, intercourse, cunnilingus, pur- anal or responsibility on the basis of the escape fellatio, may in rea the absence a mens the victim or a defendant’s ported consent of reasonable, for mistaken, intended element embrace conduct belief albeit purpose purposes and not for an innocent age of consent. Our child was over the In re gratification. arousal or legislative sexual position has both historical Odell, (R.I.1996); v. A.2d State support. (R.I.1996);

Bryant, 670 A.2d Assembly has The Rhode Island General (R.I.1989). Girouard, catego- into two main sexual offenses divided instance, Bryant respect For with and child-molestation assault ries^—sexual charging of the the de- the count indictment perti- of the sexual assault. An examination first-degree with fendant child-molestation provisions reveals nent digital engaging assault for sexual two, carefully distinguished between the has victim, penetration we declared a mens for sexual explicitly requiring rea necessity required concerning “an instruction unknown at com- assaults that were either gratification sexual arousal or in order acts abuse law or for those of sexual mon possibility preclude the that a defendant intercourse, anal that did not involve sexual of an innocent could be convicted because intercourse, or while cunnilingus, fellatio Bryant, How- touching.” 670 A.2d at 783. strict- electing to the common law’s maintain ever, charging pen- to the count assault. liability for child-molestation penetration, ile held that rea we this mens example, Legislature has defined For necessary pur- instruction was not because words: first-degree sexual assault these penetration penile precludes a find- poseful person degree “A of first touching. innocent Id. we ing of Likewise if in sexual engages assault or she he imply have declined to such mens rea penetration person, with another element cases that would be considered following exist: any of circumstances id., law, rape at common see well as to “(1) accused, spouse, being involving cunnilingus or cases fellatio. See reason to know knows Girouard, 561 A.2d at 889. Thus in most mentally mentally incapacitated, is victim assault, statutory-sexual not all but eases of disabled, helpless. physically or except in of the most limited instances assault, “legisla- child-molestation sexual the “(4) upon dependent question engages

tive focus is not medical the The accused the the perpetrator of whether time of the of victim the treatment or examination the for arousal, sufficiently gra- penetration purpose gratifica- aroused and sexual the of (Bourcier, tion, Bryant, tified.” 670 A.2d or Section stimulation.” 11-37-2 added.) J., concurring part dissenting part). (Emphases However, as- pen- second-degree sexual concerning this The definition of debate re- and also language but in no contains similar gratification etration not should sault possess mens rea.4 way willingness imply quires to an ele- accused suggest "(3) engages § medical The accused 4. General Laws 1956 11-37-4's definition of treatment examination of the victim or second-degree sexual assault reads: arousal, gratification purpose stim- or sexual of person guilty degree "A of a second added.) (Emphases ulation." engages if he contact assault or she in sexual 11-37-1(7) as: defines "sexual contact” Section following person with another of the touching victim’s or “the intentional unclothed, exist: circumstances parts, or accused’s intimate clothed "(1) or reasonably The accused knows has reason touching can be if that intentional incapacitated, mentally that the know victim is the accused to be construed as intended arousal, mentally physically helpless. gratification, or purpose disabled or of sexual assault.” Conversely, Legislature 464, 471-73, 101 when the County, drafted the Sonoma 450 U.S. statutes, child-molestation sexual assault it 1205-06, S.Ct. 67 L.Ed.2d 443-45 essentially utilized language the same (1981) with- (observing young risks attendant out reference to intent. The and unam- intercourse). .clear engaging women in sexual biguous § words of 11-37-8.1 state that “[a] person degree Argument first child molesta- B. Due-Process tion sexual assault if engages he or she Despite Legislature’s design Yanez penetration person with a fourteen argue § nonetheless continues to 11-37- (14) years age or Similarly, under.” sec- 8.1 implicit contains an element that the ac- ond-degree child-molestation sexual assault cused must knowledge have that the victim is prohibits sexual contact with person another fourteen younger. Yanez fourteen, under the also without re- suggests 11-37-8.1 violates his due- gard to the accused’s mens rea. 11- process rights because he had neither the 37-8.3. opportunity to learn Allison’s true nor It can be statutory inferred clas- opportunity present meaningful de- sification that the child-molestation sexual concerning fense his reasonable mistake. In assault regard statutes’ silence with to a support argument of this Yanez relies on designed mens rea “is to subserve the state States, Morissette United 342 U.S. interest of protecting female children from 252, 240, 244, 72 S.Ct. 96 L.Ed. physical the severe and psychological conse- (1952),in Supreme which the Court observed quences of engaging in coitus before.attain- “that intent was so inherent the idea of the ing of consent in the statute.”5 required statutory offense that it affirma- Ware, (R.I.1980). State v. Cf tion,” and on in which we relied on Griffith Balint, 250, 251-52, United States v. 258 U.S. Morissette and declared 11-37-8.1 301, 302, S.Ct. 66 L.Ed. implicit contains an requirement mens rea (“While general rule at common law was that a defendant “act with the intent of sexu- that the scienter necessary was a element in gratification” al arousal or and that this stat- proof every indictment and crime ute not “is a strict offense.” 660 * * * there has been a modification of this A.2d at 706. prosecutions view in under stat- correctly Indeed Yanez states that purpose utes the of which would be obstruct- of, existence of “[t]he a mens rea is the rule requirement”). ed such a Had Legis- to, exception rather than principles lature punish intended the act of Anglo-American jurisprudence.” criminal child-molestation sexual assault but also to Tobin, 602 (quoting A.2d at 534 Dennis v. require state, a mental could States, 494, 500, United 341 U.S. 71 S.Ct. easily provided for such an element. (1951)). 857, 862, L.Ed. But its decision to include a mens rea re- Supreme Morissette the Court stated: quirement in the sexual assault statutes “The contention declining provide injury while that can a mens rea re- quirement in amount only the to a crime when child-molestation sexual inflicted as- statutes, provincial sault intention Legisla- demonstrates that is no or transient the no- ture’s tion. It persistent omission was intentional. is as universal and in This is a pragmatic objective systems sensible and with mature of law as in which belief freedom we shall not interfere engrafting consequent ability a mens of the human will and a requirement rea duty where one was not intended. and of the normal individual choose generally Superior See Michael M. v. good Court between and evil. A relation be- assault, second-degree 5. Unlike (18) first- and age eighteen sexual sault if he or she is over the of explicitly requirement, years engaged penetration contain a mens rea and in sexual (§ 11-37-6) third-degree (14) person sexual assault age does not another over the of fourteen provide consent, (16) for such closely years an element and thus age and under the of sixteen parallels language years in age.” opinion the child-molestation of Section 11-37-6. In our sexual language assault statutes. The de- Legislature’s has this further evinces third-degree provide protect fined sexual underage assault to that intent to children from the con- 'person' third-degree sequences "[a] is sexual as- of sexual intercourse.

767 assault, punish first-degree sexual some mental and child-molestation tween element prove beyond must a reasonable a harmful almost as instinc the state ment for act is (1) in exculpatory only engaged ‘But the child’s familiar that accused tive as doubt to,’ penetration of the victim I didn’t mean and has afforded the sexual fourteen) (now thirteen tardy for a unfinished victim was rational basis Girouard, A.2d younger. or See 561 age substitution of deterrence and reformation place vengeance in of retaliation as the 889. at public prosecution.” motivation for Moris Griffith, involving digital In a ease sette, 250-51, at 72 at 342 U.S. S.Ct. in distinguished penetration, as L.Ed. at 293-94. 96 tercourse, first element we addressed the Despite well-recognized judicial princi- this sexual assault first-degree child-molestation prove that

ple, in order Yanez to 11-37-8.1, the ac namely, in that codified afoul Legislature’s power exercise of its runs penetration engage must the sexual cused guaranteed by protections of the the due- A.2d of the victim. 660 at 705. With clause, process Yanez that must demonstrate first-degree we to this first element held that jus- practice principle this “offends some sexual assault contained child-molestation tice so rooted traditions and conscience requirement rea that the ac implied mens people as to of our be ranked as fundamen- purposes act for the sexual arousal cused Ransom, Sny- (quoting tal.” at 777 F.2d further gratification. or See id. at 706. We Massachusetts, 97, 105, 54 der v. 291 U.S. “first-degree stated that child-molestation 330, 332, (1934)). Yanez 5.Ct. L.Ed. 674 assault, which a minimum carries satisfy cannot this test. sentence, is twenty-year not a strict nearly Indeed same that the Id. Yanez relies on this dictum breath offense.” proclaimed re Supreme “[unqualified Court invites us to the mens rea extend acceptance” of the a mens to the second of the stat requiring quirement doctrine element crime, eveiy broadly, read rea for Morissette Court We do not this ute. Griffith rule, however, exceptions subsequently also observed several to this since we deter offenses, including rape, implied applica rea is “sex such as mined that this mens only penile victim’s involve which the actual was determina- ble cases do not Odell, despite tive belief In re A.2d at penetration. defendant’s reasonable See 460; girl Bryant, that the had consent.”6 783. Thus reached at Morissette, necessary penile involving 342 U.S. n. at 251 S.Ct. mens rea cases Furthermore, implicit 244 n. 96 L.Ed. at do penetration 294 n. 8. is in the intentional Therefore, Supreme ing Court never held that an act. in the context of “[t]he has of the prosecu- emphatically as to Yanez’s honest mistake this case we decline statutory prove trix is a must constitutional defense to invitation and hold the state rape.” only v. Yanez Moriarty, beyond Nelson 484 F.2d a reasonable doubt (1st Cir.1973). Brooks, person engaged See also sexual intercourse with 270; younger. Stiffler, v. fourteen F.2d Idaho who was Girouard, 561 A.2d at (App.1988). 763 P.2d We therefore Yanez’s due-process conclude that attack Tobin, Bryant, Griffith, cites dissent without merit. (R.I.1998), Tevay, 707 A.2d and State proposition opinion support we addition are of the distinguishable required a rea for child- previously from the case at mens Griffith we sexual assault crimes opinion bar. Prior to our in molestation Griffith gear and in to for throws itself into reverse that order obtain a conviction “now stated Supreme sever- opinion, Court articulates 6. In a manner similar the dissent note where to our States, general including exceptions "sex U.S. to this rule also relies on Morissette 246, 342 al offenses, v. United 240, (1952) rape, which the victim’s 72 S.Ct. 288 for such L.Ed. despite concerning Unfortunately defendant's analysis actual was determinative mens rea. age of require- girl reached analysis general belief that the had heavily relies reasonable this crime, n. accompany every Id. at 251 n. 72 S.Ct. at 244 rea ment that mens consent.” attempts distinguish foot- L.Ed. at 294 n. and Morissette backpedaling furiously” prior starts strongly disagree Tevay from our does and “reaf- precedent. Naturally disagree. we requirement prosecution firmed the that the prove must .wrongdoing intentional for the These cases refer to situations which we guilty defendant to be child .molestation required interpret have been chapter 37 of specifically a mistake-of-faet endorsed 11 following title the 1979 amendment to the only question defense.” Not not sexual assault statutes. At common law the Tevay, Tevay us in simply before does but rape crime of consisted of “the act of sexual proposition. for that stand by intercourse committed a man with a wom- consent, an not his wife and without her Tevay challenge concerned a to the ade- committed when the victim’s resistance is quacy jury light of a instruction in fact fear, overcome force or or under other presented testimony the defendant Golden, prohibited conditions.” any which he engaging inappropri- denied (R.I.1981). A.2d “In 1979 the Gen- twelve-year-old step- ate conduct with his Assembly chapter eral amended 37 of title daughter, though acknowledge even he did provided penalties rape had for heavy being sleeper occasionally who would seduction and substituted these terms the pull his attempted wife into bed when she ” crime of ‘sexual assault.’ State v. Mc- Tevay wake him. 707 A.2d at 701. then Donald, (R.I.1992). 602 A.2d This percent conceded that there was a ‘“ten 1979 amendment broadened the definition of charged chance’” that (pulling incident penetration include, sexual force to bed, stepdaughter touching his into her but- intercourse, addition to sexual the intrusion tock, forcing penis) to touch her his could any part person’s body into one’s anal knowledge. occurred without his Id. Babbitt, genital cavities. State v. justice jurors The trial instructed the that in (R.I.1983). Likewise, the amend- Tevay guilty second-degree order to find ed version also created an offense unknown assault, they child-molestation sexual must law, second-degree the common “Tevay’s find that intentional conduct was assault, contact,” which criminalized “sexual purpose and had as its sexual arousal or 11-37-1(7); §§ that term is defined. See gratification.” justice Id. at 702. The trial 11-37-4. Tevay might added that not be found you “‘of conduct which feel from the evi- out, points As past the dissent over the dence, you causes to conclude that the con- required this Court has been to inter- ” Tevay’s request duct was accidental.’ Id. pret meaning pen- of the terms “sexual denied, for a mistake of fact instruction was etration” and “sexual contact” with only approved jury and this Court not the crimes of sexual assault as well as the instruction as a but found no error whole subsequently enacted offenses of child-moles- justice’s an (inter- give trial refusal to instruc- Bryant, tation. See 670 A.2d at 783 tion Id. on mistake of fact as well. preting penetration); Griffith, (extending pen- A.2d at 706 Tobin to sexual We that in the context of the determined etration); Tóbin, (interpret- 602 A.2d at 534 by Tevay, alleged factual scenario as accident contact). However, ing sexual the common fact to the same and mistake of related de- rape always law crime of has been embodied theory, fense and we therefore concluded statute, first-degree sexual assault see jurors adequately that “the were informed Babbitt, A.2d and this crime has they Tevay’s if had found conduct to- always general-intent been considered a stepdaughter] ward was unintentional [the interpreted by crime never been reason, they were to return a verdict requiring Bryant, Court as a mens rea. See guilty.” of not Id. The reasons assert- 670 A.2d at 783. We have never deviated (1) by Tevay in ed his defense were that he general principle purposeful from the “that (2) crime, that if he did not commit the did penile penetration precludes finding of in- accident, commit the crime it was touching.” nocent Id. it he did commit the crime and was accident, In addition we do not read our recent not an the crime was not intended opinion Tevay broadly gratification. so as the dissent for his sexual arousal or Our imprisonment; and holding Tevay substantial terms of has no relevance to the case Tevay merely at bar since reflects our com- presumably they require do a mens rea touching mon sense that a determination girl]. age to the of the it relates [unless is “accidental” cannot have been intended for that mistake of fact as to the The reason reason, including purposes of sexual is, not girl’s age constitutes no defense gratification. arousal or public of- these crimes like welfare rea, majority rejects require no but that

In sum a of this Court fenses mens Tobin, Griffith, Bryant, dissent’s reliance on contrary strip the victims of result would Tevay proposition these and to af- protection which the law exists require cases a mens rea with to the policy requires it. de- ford. Public Unless age statutory-rape of the victim cases. at their fendants were made to determine applicable age These cases are not to the peril with- whether or not their victims fall solely perpetra- the victim and relate protec- peculiarly needing class performing tor’s intentions in the act. We apart, tion of the law and thus set there pass upon never have had occasion to protection.” no real Francis could be question presented by this case—whether Sayre, Offenses, Public Bowes Welfare age charge requirement attendant to a (1933). Colum.L.Rev. 73-74 first-degree child-molestation sexual assault requires certainly a mens rea —and we did In addition since Rhode Island’s first-de- specifically not endorse the mistake of statute gree child-molestation sexual assault Tevay question defense in since before us Legislature, nature a creation of the jury adequacy that case was the provision introducing new either a mens rea relating instructions to intent. mistake of or the defense reasonable should also come into existence from the dissent also maintains since by judicial not fiat. In this twenty year 11-37-8.1 carries a minimum justice in his sus- case the trial discretion sentence, prison this offense is not a strict- pended eighteen years of the minimum twen- However, liability crime. this factor alone ty year sentence. We conclude that persuasive not since laws fre case, presented by this and in circumstances quently impris involve substantial terms of direction, legislative the absence of the “bet- onment. Ann. See Miss.Code 97-3-65 (1972) (18) permit any mitigating procedure ter (“Every [is] person eighteen years of ameliorating support evidence in rape or older who shall be convicted of by carnally unlawfully knowing a child mistaken belief as to the com- defendant’s years, upon under the fourteen plainant’s age to be considered the trial conviction, shall be to death or sentenced sentencing.” People v. judge at the time of imprisonment in the State Peniten Cash, 419 Mich. 351 N.W.2d for life added); tiary”) (emphasis see also Collins v. (Miss.1997) (re State, 922-23 So.2d sentencing hearing the We note that at the defense). jecting the mistake of fact One justice fully cognizant of Yanez’s trial succinctly commentator has observed: presentence report, his work histo- favorable “[cjrimes rape, intent such as assault with remorse, supportive expressed his ry, his seduction, rape, knowledge, carnal However, escaping the family. there is no like, depends upon where offense following a very first “date” fact that on their girl’s being designated age, below a are three lasting two or brief encounter punishable if the victim is in fact under the day, eighteen-year- previous minutes the specified age, irrespective of the defen- intercourse engaged in sexual old defendant age, no matter how dant’s belief as to her floor of his friend’s house on the bedroom reasonable his mistake of fact thirteen-year-old girl. The trial with this are been. It is obvious that these offenses that there was justice appropriately observed

totally ordinary police offenses unlike planning in Ya- measure of involved some involving penalties requiring minor Allison, which were Very frequently they involve nez’s encounters with mens rea. Assembly already sought to restrict by avoiding detection her mother.7 aimed rape-shield justice through the fact the enactment of the The trial further noted that protection “experienced” This been statute. See 11-37-13. that Allison have encourage rape victims to age designed her unfortunate to someone her or that was crimes; might report somewhat unstable or thus we past have been come forward and Indeed, past not a the trial a victim’s sexual troubled is defense. limited the use of justice appropriately relating complaining concluded that Allison to a history questions to Oliveira, exactly type victim whose credibility, is vulnera- see State v. witness’ Lemon, protect (R.I.1990); Legislature had intended to bility the A.2d (R.I.1983), perpetrated upon specifically one and that an offense and have A.2d harmful than one inquiry her circumstances “is more such an is not relevant to held that Alger, a stable upon committed someone who has State v. the issue of consent. See Thus, (R.I.1988). observing although Therefore if a vic- environment.” A.2d * * * Allison, tim, subject public policy “it is of this state is to be to that in this case cross-examination, engage suggests, intercourse that those who sexual as the dissent person experience,” should be treated concerning with a under her “evident sexual well, justice appear- fash- harshly,” “developed physical the trial nonetheless as her designed ance, compassionate sentence to with poise, ioned a her association her [and] promote only but also de- for a to teenagers,” not rehabilitation in order defendant older justice, trial that the terrence. the words of the reasonable belief establish his or her only sixteen-years-old, to deter this we con- this sentence is “[n]ot victim was least crimes, committing come from the young man from similar such action should clude that discourage or deter others This is but to not from this Court. Legislature and community; they’re opened, that if if at to let them know closed until it is a door best left passion all, with someone to debate all going to succumb who are better able those very high age, there’s a consequences. under jus- price pay.” agree with the trial We Second, that were we we are mindful tice find no error his decision. in cases of age adopt a mistake firmly recognize We that the dissent be- assault, this defense sexual child-molestation Assembly the General intended lieves charged persons all be available to would jurors “to sort out true cases of child with children engaging in sexual contact with involving from those consensual molestation age fourteen and under the teenagers based premarital sex between The availabili- defendant. eighteen-year-old reasonably held belief upon a mistaken but course, would, inevitably ty of this defense enough legally.”8 old to dó so both were concern- presentation of evidence lead however, observe, policy the social and We to avail of consent. In order ing the issue engen- such a defense would considerations defense, age the mistake of oneself of prosecutions for child-molesta- der future case, accused, be in this would like Yanez tion. only that he or she allege not required to victim to have been First, reasonably believed the open the intro- it would the door to age but also that years of concerning past at least sixteen of evidence victim’s duction act. This defense conduct, victim consented evidence that the General sexual 11-37-6, provides point During con- 8. We trial Allison’s mother testified engages eighteen and is over the one who cerning Allison. Alli- the first time Yanez saw person penetration over the in sexual evening out that after an son’s mother testified consent, sixteen, of fourteen but under Victor, Yanez, sister, a car driven with her third-degree assault. This guilty of driveway. pulled When her sister into her penalty of five a maximum crime carries concerning inquired the identities of the Yanez legisla- represents a imprisonment. This section window, mother Allison's two individuals teenagers who are over tive determination daughters, responded they who were her may engage in "exuberant of fourteen aged and twelve and that Yanez were eleven behavior,” criminal in fact not which is stay away.” "to however, line, drawn at under our law. age of fourteen. children who are under involving prosecution having in that since sex-offense cases would result the stated credibility on of one proving beyond a minors often turn burden of reasonable doubt other, prior false party or the evidence of the fact that the victim did not consent to a parties is relevant to charges by crime in which the has decreed one of the question guilt ultimate of or innocence. that consent is irrelevant. case, however, credibility In this Allison’s II respect elements of the with to essential Testimony concern- was not in issue. offense Scope of Cross-Examination may about Yanez ing the false accusations argument appeal on Yanez’s second only if the mistake of have become relevant justice’s concerns the trial refusal to allow fact was available to this defendant. Allison con the defense to cross-examine that Allison Accordingly, It is not. evidence cerning her identification of Yanez as false impreg- was have told others she of her unborn the father child. Had by simply not relevant nated Yanez was permitted develop defense been this line we have determined that this offense. Since inquiry, of Yanez claims that Allison’s credi (1) inquiry relevant was whether bility challenged would have been since tests in with engaged Yanez sexual intercourse (and later confirmed Allison later admitted years Allison fourteen of Allison and was trial) during that she had not made been less, pertaining evidence to Allison’s pregnant by During pretrial Yanez. hear prior about the fa- inconsistent statements ing preclude the state moved in limine to properly unborn was exclud- ther of her child presenting any sug defense from evidence by justice grounds on the ed the trial both gesting given to a Allison had birth light balancing in of the test relevance and child, the father of whom was not Yanez. required by Island Rule 403 Rhode The state maintained that the fact Allison Rules of Evidence. given simply had birth was not relevant to any in issue the case. Yanez maintained that Conclusion evidence, he intended to offer such not to articulated, deny For the reasons we conduct, present prior evidence of but appeal judgment and affirm the defendant’s impeach credibility. Specifically Allison’s papers in this case are conviction. alleged though Yanez that even one or more hereby Superior Court. remanded pregnancy performed nega tests were with subsequent tive results to his encounters Justice, Flanders, dissenting. Allison, falsely she nonetheless named Although Yanez the father. Yanez acknowl respectfully I cannot believe I dissent. edged that neither offense of element Legislature intended that G.L.1956 that the first-degree child-molestation sexual assault (Rhode § 11-37-8.1 Island’s dispute,9 was in he maintained that Allison’s law) carrying mandatory-minimum sen- — credibility was at issue because she had al twenty years jail be con- tence of —should legedly him that was informed she sixteen Judiciary to bar an accused strued conclude, however, years age. We teenager’s mistake-of-age defense reasonable justice prohibited the appropriately the trial charges upon engaging his con- based cross-examination of Allison with teenaged girl- acts with his sensual sexual having impregnated her another become result of such friend. The unavoidable man after the encounters with Yanez on the interpretation of this law is the draconian proposed testimony to ground that the was defendant, Alejandro Ya- imposition on this tally irrelevant. (Alex) barely man young nez who —a Izzi, inci- at the time of this eighteen years R.I. old relies on Yanez brutal, harsh, (1975), uncommonly which we dent —of had informed investigation in son but maintained that Allison 9. At outset of the criminal age. This voluntarily gave police him that she was sixteen Yanez a written this case without having engaged admitted into evidence he admitted statement was statement wherein objection. intercourse on one occasion with Alli- in sexual rationally interpret- punishment out violator should be undeserved so between these two reality virtually whack with that it is without ed to draw distinction when, especially parallel any jurisdiction very different the United scenarios — here, question the sexual conduct in would States.10 unquestionably legal been if Alex’s sex- apparent any legislative If intent old, partner ual had been sixteen language 11-37-8.1 to criminalize used allegedly she said she was. children, sex with it is the intent manifest case, hap- by In this two versions of what its title to outlaw sexual abuse of children acceptance. According to the punish severely pened those who com- vie for adults and (who defense, Alex, eighteen-year-old an was mit such “child molestation.” But there is a involving only participation too world of difference between a crime six months old dating juvenile system), situation court had been a intentional child molestation and a teenage mature-looking young one in which two lovers woman whom he had like this (or acts) previously phoned times and who engage fully in a consensual act of met several go him on fateful in the mistaken on him and asked out that sexual intercourse belief part they evening.12 young Alex claims that the wom- the of one of them that are both of (unbe- legal age Although him she was sixteen when a to do so. their exuber- told him) by really at knownst to she a month and ant sexual behavior be sniffed a was “sordid,” shy birthday. Her tongue-clucking majority as it a half of her fourteenth certainly more credible. Alex con- not “child molestation” within the deceit was made Island’s, tends, by developed physical meaning her mature and Rhode poise, Any appearance, law.11 criminal statute that carries a her her association expe- mandatory twenty-year jail teenagers, im- her evident sexual sentence and older prepared pro- poses lifelong predator The stigma a as a sexual rience.13 twenty- they're having Although date sexual intercourse. 10. Alex received the minimum sécond changed." year justice Apparently the refused to times sentence after trial defense, mistake-of-age jus- the trial consider his years tice ordered him to serve the first two majority that there was "no evi- 12. The claims prison suspended his sentence in the remain- actually dat- dence that Allison and Yanez were ing eighteen placing proba- while Alex on they actually dating? ing." were No evidence Thus, period. tion for this even after Alex fin- candidly informed the trial court that Allison sentence, serving prison ishes his he will be they together multiple went out on occasions re-imprisonment up eighteen subject to beyond charged Although the one incident. she keep peace engages if he fails to the response gave to the cross-exami- an affirmative any hearing justice testimony July a question your other conduct that causes nation "Is it that on reasonably you alleged that he violated the to be satisfied has the time 14th of first Moreover, client?,” probation. girlfriend you my terms his he will be were with Alex’s required register as a convicted sex offender also testified follows: stigmatized a and will be forever convicted Yes, relations "Allison: I had had ma’am. Accordingly, in the felon and child molester. with Alexon three occasions. disagree of this case I with the circumstances occasions? "Defense Counsel: So it’s three repre- majority's conclusion that this outcome Yes, "Allison: ma’am. compassionate "a sentence." sents When was the third occa- "Defense Counsel: sion? by uncharged 11. The sexual conduct alluded to we had went out "Allison: It was once when testimony by majority Allison that relates to dune, by and then the a sand and it was over activity engaged she and Alex had in sexual on house, and time it was at his then second occasions, apparently charged other added.) (Emphasis before house." his friend’s at the house of Alex's incident occurred friend. sure, shop prom the malt were not To be Thus, painting picture far from of a apparently whirlwind court- included in their infra. tryst dingy the floor of a "sordid” one-time on excerpt ship, the above from the record but room, the evidence indicated that Allison they back majority’s contention that refutes the dating and Alexhad been each other and suggests "actually dating,” but never also were relationship activity grew of their out uncharged sexual conduct between them that the pre- any was no more sordid than other case of charged house incident occurred before Indeed, marital, teenage justice the trial sex. . of Alex’sfriend. sentencing hearing that the himself noted at the Indeed, by had time of Alex’s trial Allison for which Alex was consensual sexual encounter "[Ojn boyfriend, pregnant a con- charged become different was not a one-time affair: concerning age of his or her con- witnesses to corroborate the reason- take duee partner. senting sexual being ableness of Alex’s taken in these justice misrepresentations but the trial surprised disappointed that I am both event, doing him from so. barred majority this believes otherwise dispute there is no that Alex and his date statutory- and thinks that Rhode Island’s fully engaged in consensual sexual relations interpreted as a strict- rape law must be prosecution, other.14 with each it crime when comes hand, paints fully say other Alex as a accountable I be partner. accused’s who, eighteen-year-old having recently unequiv stated adult after cause this Court Griffith, ocally in young been warned woman was not (R.I.1995), interpreting a case this same stat him, enough seeing old to be nonetheless ute, first-degree child-molestation sexual her, proceeded advantage knowing to take by § proscribed assault 11-37-8.1 “is not sophist- full that the allure of his relative well added.) (Emphasis strict together ownership with his of a car offense.” ication — based this conclusion on Court apartment to a and access friend’s Griffith —would recognition its that existence of a mens “[t]he magic impressionable work on an thir- rule, exception than rea is the rather the justice But teen-year-old. because the trial deep jurisprudence, principle ‘so under prevented introducing any Alex from evi- ” ly in American law.’ 660 A.2d at 706 rooted concerning dence the reasonableness of his Tobin, (citing v. 602 A.2d State teenage girlfriend that mistaken belief his States, (R.I.1992), Morissette v. United sex, legal age engage in was of consensual 240, 244, 72 S.Ct. 96 L.Ed. U.S. jury got the never to hear of this testi- J.)). (Jackson, And even mony. recently Bryant, more (R.I.1996), type I that in we reaffirmed that Rhode would hold of situation upon Island’s law drew com Assembly jury— the General intended that a gener requiring mon-law at least a tradition judges prosecutors appropri- or the—is ally guilty mind. body ate to sort out true cases of child involving molestation from those consensual very recently during this Most —indeed

premarital teenagers sex between based necessity term —this reaffirmed the upon reasonably a mistaken but belief held proving criminal intent for a defendant to be enough that legally. both were old to do so Tevay, guilty of molestation in State v. child end, curiam). (R.I.1998) To this a criminal defendant indicted (per 707 A.2d 700 There under 11-37-8.1 should be afforded the the claimed a mistake-of-faet de- defendant opportunity fense, against charges arguing per- to defend such he the that had believed by showing was his good-faith a reasonable and mis- son with whom he had sexual contact repu- initially falsely dition which she blamed on should not be allowed to besmirch Allison’s activity Alex in order to conceal her sexual by introducing her irrelevant evidence of tation family. her history, jury sexual the should have been allowed initially blamed her later to learn that Allison majority allowing 14. The claims that a defendant Alex, pregnancy allegation that she knew on an statutory rape present evidence accused of relating time made it. Such evi- to be false at the she concerning to a reasonable mistake the animosity certainly dence would tend to show person’s age "open other would the door to the question Alex and would call into bias toward concerning of evidence introduction victim's credibility veracity well the of her her contrary past sexual conduct” to G.L.1956 11- testimony supposedly informed critical that she 37-13 and to Rule 412 of the Rhode Island Rules Furthermore, age. Alex true no other of her concedes, First, majority of Evidence. as the history would be evidence of Allison’s sexual neither 11-37-13 nor Rule 412 bars the intro- unless Alex could show that he knew admissible complainant’s duction of evidence of a history. experiences he these other sexual and that merely Rather the rules restrict its ad- concluding so, upon knowledge topics relied missibility, properly to relevant sixteen-year-old credibility. in fact the that she complaining Allison was such as the Here, witness’s allowed, Thus, mistake-of-age represented the allegedly had a defense been herself to be. credibility testimony ”open[ing] the of Allison’s that she told specter majority raised Alex that she was thirteen old would door” to inadmissible evidence is unfounded. important trial issue. While Alex have been Second, Tevay. twelve-year-old appears nowhere in even nnderaged wife and not his in that did not have the counsel case ap- defense stepdaughter. The criminal defendant audacity suggest that when the defendant on one count of second- pealed his conviction step- Jody twelve-year-old “grabbed [his. molestation, arguing that degree child bed, daughter], pulled her into his touched justice’s jury that trial instruction to the buttock, Jody to touch his her and forced Tevay’s “they must find conduct intentional A,2d not for the penis,” 707 it was as a beyond a reasonable doubt and not gratifica- purpose of the defendant’s adequately of an did not result accident” Tevay contrary, holding of tion. On at 702. convey a mistake-of-fact defense. Id. justice’s use of quite simply that the trial was conviction, holding This Court affirmed than “mistake” the word “accident” rather justice properly the trial had indeed jury adequate to instruct was jury instructed the because wit, mistake-of-fact defense —to defendant’s mistake-of-fact in the “both accident and defendant, having groggy while after that the context of this case relate to the same just deep sleep, mistook his emerged from acci- theory. In other words the stepdaughter his wife. twelve-year-old [the dent was the mistaken belief very In the words of Court: Id. stepdaughter] Tevay’s wife. There- justice Tevay’s trial denied “Although the fore, jurors were ade- we conclude mistake-of-fact, we are request to instruct on they had found quately informed and mis- opinion that both accident Tevay’s stepdaughter] [the conduct toward in of this case relate take-of-fact the context reason, unintentional, they any was for theory. words other to the same defense guilty.” a of not Id. were to return verdict that the accident was the mistaken belief added.) (Emphasis (Emphasis Jody Tevay’s Id. add- was wife.” Tevay require- in Thus we reaffirmed ed.) jury may have scoffed at Although the prosecution prove must inten- ment that the under the facts such a far-fetched defense wrongdoing for the defendant to be tional case, proposition Tevay stands for the that specifically guilty of child molestation and charged with sexu- that a criminal defendant by ap- endorsed a mistake-of-fact defense ally assaulting a minor nonetheless is entitled proving jury a that would excuse instruction “mistaken belief” defense. to offer such a if it was based on a a defendant’s conduct majori- Tevay is irreconcilable with the Thus unintentional, identity “was for mistake of stance, its ineffectual at- ty’s current Moreover, Tevay empha- any reason.” Id. tempt distinguish this case serves with sized that if an accused’s sexual conduct departure from the unjustified its underscore a minor was indeed based on reasonable a § 11-37-8.1 is not prior rulings that Court’s fact, jury required mistake of was strict-liability a offense. notwithstanding not-guilty a return verdict— declined I note also that other courts have that the defendant’s sex- the undeniable fact mistake-of-age between to draw a distinction twelve-year-old girl ual contact a mistake-of-identity Massachu defenses. admittedly purpose of his case was for setts, imposed below has which as noted gratification.15 arousal or sexual child-rape liability in its laws under strict attempts Tevay by majority theory, to dismiss a legislative-reenactment addressed holding Tevay contending that in the case of Commonwealth Tevay-type “[o]ur situation Tevay since 592 N.E.2d Knap, relevance to the case at bar 412 Mass. v . (1992). There, merely Supreme common sense determi- Judicial reflects our mistake-of-identi touching rejected is ‘accidental’ an asserted nation that a reason, holdings prior ty in adherence to have been intended cannot to statu arousal or that mistake of is not defense including purposes of sexual (citing at 749 First, tory 592 N.E.2d “holding” rape. Id. this so-called gratification.” accurate; is, had been purported purpose” tion of the facts Tevay's "innocent was activity with a engaging motive when he not that he had a nonsexual engaged he had been challenged but that his lawfully conduct acts. person consent to such who could percep- perfectly legal if his sexual behavior was Miller, long recognized Commonwealth v. Mass. mon that a law has reason- (1982)). N.E.2d Thus whatever else able mistake of a fact essential to the com- position, negate requisite be said about the wisdom of its mission of a crime can required Massachusetts at least exhibits the virtue of evil of a intent be held consistency. particular generally But in LaFave Rhode Island defen- offense. See W. (2d Scott, Jr., dant accused of child-molestation sexual as- A. Law 5.1 Criminal ed.1986). may present Tevay sault a defense under

that he or she mistaken about the identi- extremely actuality, “In the basic rule is * * * (because ty of the minor child he or she had simple: ignorance or mistake fact a reasonable belief that the child was fact negatives is a defense when it the exis- different, person) older but not about the tence of a mental state essential to the age. minor child’s Indeed, charged. simple crime it is so * * * merely because it is a restatement Tobin, Griffith, Notwithstanding Bryant, somewhat different form of one of the ba- Tevay, majority now throws itself premises sic of the criminal law. Instead gear into backpedaling reverse and starts speaking ignorance or mistake of fact furiously to distance itself from what defense, just or law as a it would be Despite Court has said these eases. easy simply to note defendant previous unequivocal Court’s statements that cannot be convicted when it is shown that child strict-liability molestation is not a of- required he does not have the mental state fense and that accident and mistake of fact particular law for commission of that crime, constitute a defense to type * * * Yet, practice offense. has de- statutory rape now we are told that is indeed veloped dealing with such mistakes as a strict-liability offense when it comes to the defense, perhaps matter of because the age of the consenting defendant’s showing usually facts their existence are result, partner. As a the child-molestation Id., brought out the defendant.” 5.1 statutes have been prover- scrambled into a at 406. bial hash conflicting requirements, intent mandating Thus the same act can a proof of be crime an wrongdoing intentional act, accident, except depending for all innocent mistake or elements one: the of the on the intention of the victim. For the first actor. the words opens time the Court a Supreme black hole of the United States liability of strict Court: under these laws and withdraws safety previ- the mens rea net injury “The contention that an can ously part required included as of the scaf- only amount to a crime when inflicted folding for all other elements of these crimes. provincial intention is no or transient no only This decision not flies the face of persistent tion. It is as universal and what this Court has every prior stated on systems mature of law as belief freedom interpreted occasion it when has this statute consequent ability of the human will a and spurns but it also one of the most fundamen- duty and of the normal individual to choose * * * principles tal of the criminal law. good Unqualified between evil. and acceptance by English of this doctrine system jus- The essence of our of criminal Century Eighteenth common law tice, student, any first-year familiar to law is sweeping was indicated Blackstone’s principle the venerable that actus non facit statement to constitute crime reum, rea; words, nisi mens sit inor other a ” a there must first be “viciouswill.’ Mor only act criminal flows from the “concurrence issette, 250-51, 342 U.S. at 72 S.Ct. at 243- evil-meaning of an evil-doing mind with an 44, 96 293-94. L.Ed. at Morissette, hand.” 342 U.S. at 72 S.Ct. Blackstone himself wrote: at (refusing L.Ed. at 294 to extend law); liability “And, strict to federal conversion as a vicious will without a vicious act (Tor- crime, so, hand, § Wharton’s Criminal Law at 100 is no civil on the other an ed.1978). eia 14th Because the element of act a will is unwarrantable without vicious that, intent predicate culpability, is essential no crime at all. to constitute a So laws, be, liability, against and therefore to criminal the com- crime human there must first, will; and, secondly, an un- to constitute a crime. a vicious for the forbidden.acts consequent upon act such vicious lawful Rather the common-law tradition mandates will. that the forbidden acts must be the result of

(cid:127) ^{[*] [*]} intentional wrongdoing.17 “Ignorance or mistake is another defect long Notwithstanding venera- mil, man, intending when a to do a upon ble common-law tradition insists inten- act, does that which is unlawful. lawful being misconduct offenses tional for criminal acting here the deed the will For proven, widely argued it has with re- been conjunction separately, there is not statutory legislative rape laws that spect them, necessary between form concerning requisite intent means silence Blackstone, a act.” Com- criminal W. know that “the defendant is bound to at his *21, England mentaries on Laws of prosecutrix’ Bailey F. Lee peril age.” added.) (Emphasis *27 Rothblatt, Rape H. Crimes Violence: Or, homey aphorism more to recall (1973), at 299 and Other Sex Crimes Holmes, dog Mr. a distin- “[e]ven Justice 76; Law see also Wharton’s Criminal guishes being between over and stumbled (1962) (not- Penal Code 213.6 cmt. Model Holmes, being O.W. The kicked.” Common time, ing one this rule obtained virtu- “[a]t ed.1991). (Dover Law every ally jurisdiction” rape American century that over It is true the last offenses). al- and other related sex And half, many jurisdictions American impose though some states continue to such adopted statutory-rape laws. so-called And strict-liability upon their statu- construction Island’s, statutes, many of these like Rhode laws, tory-rape not. Indeed in others do express set out two elements —sexual bailiwicks strict contin- those where penetration say nothing about —and convincing argument no reign, ues to omission required mental state.16 This put forth to this harsh rule been reconcile dispositive, not however. Because “intent principles rea sur- with the normative mens so inherent [is] [criminal] idea Nevertheless, veyed in Morissette. whatever require[s] statutory affir- offense that it jurisdictions, Morissette, state of the in other law mation,” at 72 S.Ct. U.S. to Rhode Island’s criminal stat- 96 L.Ed. most noteworthy. specify required points utes mental state law three are do footnote, omitted). knowledge continued in The common law forbade carnal offenses, girl regard her a consent, under the without “[exceptions ten came to include sex such by years reason she is "as of her tender rape, age in victim’s actual was as which the incapable judgment of discretion.” W. despite be- determinative defendant's reasonable Blackstone, Eng- the Laws Commentaries on age of girl of consent.” lief that had reached law land *212 Thus the common was 8, 8, at 244 n. L.Ed. at Id. at 251 n. 72 S.Ct. regard to the of consent. But strict with element Supreme merely Court ac- 294 n. 8. Thus the says nothing Blackstone about whether a even do, many states knowledged, as I came to effectively age of ne- reasonable mistake would recognize exception the common-law rule an to gate felony. this mistake-of-age to a of mens rea with prosecutions. The Court defense in sex-offense majority 17. faults reliance The the dissent’s imposition opine to whether never ventured principles set forth the fundamental criminal-law proper, princi- liability was 246, in cases States, of strict such v. United 342 U.S. in Morissette infra, 240, pled, As I discuss twen- (1952), or constitutional. suggesting L.Ed. 288 S.Ct. recognize form Supreme ty-three some of the placed states now States Court has the United prosecu- statutoiy- type imprimatur mistake-of-age of on strict defense in this excep- Moreover, endorsing rape relying But far in context. from I note that would also tion. general requirement a "vicious of why tion upon passages to Morissette show these from cases, statutory-rape Supreme Court statute, will” in strict-liability § I am 11-37-8.1 is not a describing simply passage in dicta noted—in plowing ground. Rather this hardly new (cid:127) development the historical of law—that already fundamental mens rea harvested the "[cjommon-law of the Nineteenth commentators previous principles in such sown Morissette Century early pronounced principle, the same sexual-assault cases as child-molestation and exceptions although to our a few not relevant Tobin, Bryant. Griffith, Tevay,and present problem recognized.” came Id. to be at 244, (Footnotes 72 S.Ct. at L.Ed. at 294. 1798,1822,1844,1857,1872, i penal- rape specified ties for are but no articulation Rhode Island Law rape elements the offense is set foremost, today First and until Rhode Is- out, rape separately.18 nor child mentioned joined striet-liability land had never fold law, approximate precursor today’s The crimes. Our earlier colo- and, 11-37-2, passed G.L.1956 in 1889 simply nial laws echoed the common law originally phrased, essentially as restated the England. example, received from For a stat- (which early colonial statutes in turn had passed by ute Assembly the first General in English prohibition echoed the common-law 1647read: knowledge girl) of carnal of a but raised the “Rape present is forbidden As- * * * age threshold ten to fourteen sembly throughout colony the whole P.L.1889, age. ch. The statute like knowing hereunto is the of a maid was amended five later increase the carnally who is years, under the of ten critical to sixteen and the law thereafter though it be with her eonsént. penal- substantially unchanged remained until ty felony we do declare of death. See for 1979.19 confirmation 13 Ed. 34.” Acts and Or- ders of Assembly, the First General re- Surprisingly Tevay reported until not one printed in J. Cushing, The Earliest Acts nearly Rhode Island case in the one hundred Colony and Laws Rhode Island intervening years specifically addressed 164-7-1719, and Providence Plantations: whether a defendant could raise mistake of (1977) (J. at 26 Cushing). fact as a charge. valid defense to such a compilation A of Rhode Island colonial conspicuous From this lacuna our state’s laws in 1705 included this jurisprudence, decree whose es- might easily we infer that sential term is lost history: “Rape. defendant Rhode Island has ever been Assembly strictly This Forbid the Same & refused this as that defendants have we hereby doe declare that it is when a man very never been allowed to raise it.20 At the * * * through his wild & unbridled affection might least one large infer that the measure Forcéth A against woman judicial her will like unto discretion written into former him Knowing Carnally a maid who is fifteen-year 11-37-2’s maximum sentence under the though [lost text] o Years it respond b was any mitigating sufficient to Her Consent.” Laws and Acts of Rhode circumstances if they par- when and arose in Island and Providence noted, Plantations of at ticular though, cases. And even 11-12, reprinted in Cushing J. rape 65. See felony nonforcible of a child was also Acts Majesties Colony and Laws of His punishable by puritanical death under the of Rhode Island and Providence Plantations standards of our colonial forebears —a sanc- America reprinted equally applied J. tion that was burglary, death). Cushing (penalty rape at 142 blasphemy, or argue witchcraft —few would compilations later of the Public propriety Laws for the penalty today of this America, 1844). 18.As with most felonies in colonial penalty through This constant remained penalty rape rape for both forcible and of a child compilations the 1857 and 1882 of our See laws. by hanging. under ten was death See Act to 1857, 212, 4, 530; § Revised Statutes of ch. 6,§ Reform the Penal Laws Public Laws of the 1882, 240, 5,§ Pub.Stat. of ch. at 667. State of Rhode Island and Providence Planta- (Jan.1798) ("And enacted, tions 585 be it further 11-37-2, G.L.1896, compiled § 19. Former ch. every person That who shall be convicted of the 281, 3,§ unlawfully read: “Whoever shall rape, being accessory crime of or of thereto carnally any girl know and abuse under the fact, death”); before the shall suffer Act to Re- imprisoned of sixteen ing shall be not exceed- 3,§ form the Penal Laws Public Laws of the P.L.1894, 1270, years.” fifteen See also ch. of Rhode Island and Providence Planta- State 1; Ware, 1, (R.I.1980) § State v. 2 However, (Jan. 1822). tions 339 1844 the laws). (tracing history of sexual-offense penalty impris- for this offense was amended to life, onment "for or for term not less than years.” Concerning ten An Act Crimes and Pun- Tevay 20. Indeed would seem to confirm this in- 13, § ishments of the State Public Laws of Rhode ference. (Jan. Island and Providence 380 Plantations 778 provision general rape out of the carved at bar. See J. Cush- like the case situations —an always required at least has § offense that 26; 213.6 2 Model Penal Code ing, at cf. P.L. See intent to convict. that, general criminal 2, whatever (arguing at 415 cmt. 783; 59, 2; A.2d at law, 1984, Bryant, § 670 ch. at common

justification penalty of the (R.I.1987) 731, Jordan, 733 A.2d v. 528 State of mistake “the disallowance traditional history). (detailing legislative rape been rendered statutory has the law of by legislative extension intolerable of the fact that majority makes much The consent”). Certainly reworking of the included the Assembly has the General general penalty minimum rigid ten-year in the to know” has reason phrase “knows or statute, Pub.Stat. see rape set out 11-37-2(1) laws, §§ see sexual-assault adult 30-240-5, fifteen-year maxi- into a 11-37-4(1), not included it has sentencing range applica- discretionary mum that the It claims laws. its child-molestation 1894, underage sexual intercourse ble to language to use similar failure Legislature’s 1270, 1, P.L.1894, suggests that the eh. see shows statutes in the child-molestation for a more recognized the need Legislature that, there- was intentional the omission rape was statutory than treatment of flexible by en- fore, interfere should “not the courts rape. Compare necessary with common-law one where requirement mens rea grafting a (statutory rape) with § 30-281-3 G.L.1896 problem with The not intended.” was rape).21 (general § 30-277-5 G.L.1896 above, conclusion, is that as demonstrated rejected such previously has this Court judicial si- Rhode Island’s Regardless of that the statu- analysis. In we said before mistake-of-age defense on the lence Griffith strict-liability statute not a tory-rape law was 1979, Assembly year in that the General provided for seemingly despite language that se- nineteenth-century rape and discarded A.2d. at 706. element. 660 revamped no scienter entirely in favor of an duction laws second-degree sexual as- Tobin we held that chapter defining offense integrated sex strict-liability because offense was not a aspects. See sault myriad in its sexual assault minor touching of a 302, 1, Unfortunately the accidental P.L.1979, §§ ch. 2.22 charge. .a to such be a defense very specific child would provided little Tevay we held 535. And provi- 602 A.2d at these interpretation of guidance for jury instructed the justice properly concerning the trial express indication sions and mistake-of-fact defense in abrogate on defendant’s preserve it intended whether second-degree child- prosecution under existing to be the it considered whatever Thus at 702. statute. 707 A.2d But molestation state.23 statutory law this common or majori- how the loss to understand 1984, I am at a § 11-37-8.1 was significant that in it is statutory any unambiguous absence of jurisdiction, But in the 21.Admittedly Mas- our close sister other, sachusetts, way we should assume judicially or the answer one refused the defense a mens rea early v. insistence on See Commonwealth the common law’s as 1896. (1896) Murphy, prevails 42 N.E. until it has been requirement 165 Mass. unless and (defense prosecution for assault refused in expressly statute. modified intended rape the defendant's because intent animus); Com- provided mains fornication thoroughly rewrote the law so new statute The Moore, 269 N.E.2d 359 Mass. v. monwealth rape that this Court sexual assault (1971) long- (citing Murphy for "the apply of abatement the rule constrained interpretation” standing that defendant charges against who had a defendant dismiss rape as defense raise mistake of committing law of under the old accused been Miller, child); v. 385 Mass. Commonwealth boy. thirteen-year-old awith fellatio (1982) (holding legisla- 432 N.E.2d (R.I.1983). Souza, A.2d rejection adopted prior judicial reenactment tive defense); ch. Mass.Gen.Laws of mistake-of-fact 265, accompa- explanation legislative council 23. punishable by (rape of child com- provided the barebones nying 79-H imprisonment). But our of five minimum existing relat- repeal laws "This act would ment: way, goes neighbor the other good Connecticut provides for a sexual ing offenses to sexual mistake-of-age defense. See expressly allowing a defining general vari- chapter law assault Island's Judicia- Whether Rhode note infra. offenses, delineating ad- further ous sexual or Con- Massachusetts ry have followed would penalties providing for evidence presented missible proper been case had necticut if the upon conviction." pure speculation. during pre-1979 era is ty Legislature’s can now claim that the special language fail- should be inserted into the specific language clarify ure to include rea in mens sexual-assault statutes to that more § 11-37-8.1 means that than wrongdo- person intentional mere intentional sex with a ing required physical capacity is not for a limited mental or defendant to be would be transgressing needed to someone of this crime. underage the statute’s convict requirement. In Legislature sum the fact that the special precautions by chosen to take insert-

Additionally majority’s premise is un- ing explicit language mens rea for a small Legislature’s phrase sound. The use of the subset of certain adult in sex crimes which “knows or has reason to know” the adult may objec- the victim’s disabled status not be only sexual-assault statutes is limited tively interpreted ascertainable should not be cases in consent defense is unavail- negating to mean that it is mens rea in all able to a defendant because the victim was other sex-crime contexts. To me all this mentally disabled, incapacitated, mentally or indicates is that has taken physically helpless at the time of the sexual special extraordinary care in this one situa- contact. Because there is no similar consent tion to make sure that defendants are not available child-molestation they of such crimes unless are convicted charges, the Assembly General no occa- had guilty of the same wrong- kind intentional sion or warrant language to use this same doing required that is to convict in all other dealing statutes with child molestation. sex-crime situations. Moreover, in all involving the cases adult rape second-degree or event, sexual assault any In lacking any explicit clues to which the victim is not mentally physically issue, or legislative particular intent on this ei helpless, prosecution prove extratextual, still has to ther textual or I believe that regard mens rea with remaining ele- lenity common-law rule of militates despite ments of the complete offense statutory favor of a construction that is fa absence of statutory language requiring vorable to the accused and counsels this proof. such If majority’s reasoning were adopt possi Court to “the less harsh of two correct, Legislature’s Jordan, then the failure to in- meanings.” ble 528 A.2d at 735 clude the same (holding knows-or-has-reason-to-know is well “[i]t settled” language respect with types lenity to all other applied rule of must be 11-37- 8.1). rape Foster, and sexual-assault cases would convert As this Court said in State v. these striet-liability R.1.163, 167, 46 crimes to offenses as A.

well. already But here too we have held sight “We do not lose of the rule that otherwise. penal statutes are to receive a strict inter- pretation, general and that words majority also overlooks the most obvi- thereof should be restrained for the benefit Assembly’s ous reason for the General deci- against penalty of him whom the is inflict- sion to include the knows-or-has-reason-to- (Potter’s Stat.245); [except] ed Dwarris on language know mentally defi- legislature when the intention of the cient victims for sexual-assault crimes that language plain, obvious and the no room is already implicit an require- include mens rea judicial left for refinement or construc- ment. In involving cases ac- defendant tion.” having mentally cused illicit sex with a person, deficiency, deficient only ambiguity the mental dis- Here not an com- but the ability, physical helplessness may plete statutory language not be absence of address- objectively ing typically verifiable a requirement condition discernible infused by the every accused defendant. Such conditions common law into offense criminal weighs applying lenity be subtle or ascertainable to a in favor of the rule of professional Moreover, broadly who knows phrased how to test and mea- to this case. contrast, holding sure for such disabilities. 11-37-8.1 does not Griffith person objectively impose liability, coupled of a is an verifiable strict with our re- Legislature may Tevay recognizing fact. The well con- cent statements type that in is a cluded the former of situation unintentional sexual contact with child 780 Hernandez, (1994); 47, People 79 v. charge, adds L.Rev.

defense to a child-molestation 361, 673, to Cal.Rptr. the force of settled law the momentum 393 P.2d 61 39 Cal.2d by previous application (1964) (one created contemporary 674 n. 1 of the first lenity rule of to crime. judicial opinions analyze statutory-rape to thoroughly). The of this criti- laws thrust Accordingly necessary I it is do believe liability cism is that strict context due-process to the constitutional issues reach justified felony sex cannot be either offenses simply accept raised I cannot defendant. public-welfare as or under the mor- a offense that intended sub silentio to typically negate mistake-of-age al-wrong theory apologies defense a reasonable two —the that would cashier the mens rea is es- imposing strict liabili- offered type all of this sential to criminal offenses ty.24 I expressly unless it has been eliminated. brief, strict-liability styled “pub- as laws judicial creation of would note lic wake of offenses” followed welfare liability statutory rape strict for a offense nineteenth-century industrialization.25 These any advance notice of such crime

without imposed typically strict regulatory statutes problems can due-process raises serious (that is, or no mens rea criminal by allowing a and should be avoided mistake- accused) proved need be convict the intent of-age Fremgen, See State v. 889 defense. (Alaska response dependable need ad- Ct.App.1995) P.2d 1084-85 regulatory enforcement mistake-of-age ministrative and (holding refusal defense vi- due-process potential- olative of state constitution’s that could mechanisms contain clause). ly expanding widespread flowing harm from practices. commercial See industrial and II Morissette, 252-54, 342 at 72 at U.S. S.Ct. 294; Sayre, 96 L.Ed. at see also F. Liability Criticisms of Strict Offenses, 55 Public 33 Colum.L.Rev. Welfare Statutory-rape laws foreclose a mis targets public- The usual these subject take-of-age defense been processing, phar- offenses were food welfare legal scathing widespread criticism. Be maceuticals, liquor, traffic offenses. 1970’s, ginning seemingly in the 1960’s and (usually light penalties Convictions carried legal commentary unanimous front of fines) monetary imparted scant social opposed concept liability for this of strict Morissette, 253-56, stigma. See 342 U.S. at type lacking philosoph of crime sound 295-97; 244-46, 72 96 at F. at L.Ed. S.Ct. ical, historical, and, legal or what foundation They were Sayre, 33 Colum.L.Rev. at 62-67. worse, having faulty origin is even is, prohibita, of- to be mala deemed judicial analysis applicable pre inept illegal for fenses made reasons societal See, e.g., 1 Wharton’s Criminal cedents. being efficiency rather than convenience or Law, Code, 76; 213.6 at Model Penal se, inherently acts that are mala or 413-17; Scott, & emt. at LaFave Criminal or evil moral natural-law wicked 5.1; Myers, Law L. Mistake at Reasonable justified Regulatory expediency standpoint. Statutory Age: A Needed Defense relatively minor swift imposition of but (1965); Tonry, R. Rape, Mich.L.Rev. 105 Morissette, punishment. 342 U.S. Rape: Critique, 26 La.L.Rev. Statutory A 296; 255-56, 72 S.Ct. at 96 L.Ed. (1965); Singer, R. Lia Strict Criminal Garnett, (Bell, J., at 810-11 Way A.2d dissent- bility: Alabama Courts Lead the State im- Century, expediency justify But cannot Twenty-First ing). Into Ala. intoxicating illegal exhaustively of wares his re character his 24. These modem criticisms are nuisance); Maryland high Bell of viewed Justice State v. Mel- creates a common sale scholarly dissenting opinion ville, (1877) his in Gar court in (dealing 11 R.I. 417 of faro brands State, 332 Smith, nett v. Md. A.2d 810-17- gambler); one as common J., (Bell, dissenting). (1872) (sale subject of adulterated milk R.I. 258 $100). upof to fine See, e.g., Hughes, State v. 16 R.I. 16 A. (1889) (liquor merchant bound know 781 position believing.” majority of strict of- Id. at 156. A of an en sexual-abuse panel English judges of fenses. bane held that provided Prince’s mistake no de- reasonable regulatory prohibitions Unlike at directed conclusion, reaching this all the fense. prohibita mala offenses such as the sale of place judges recognized the central held milk, adulterated child molestation does not concept of mens rea in the criminal law naturally heading statutorily fall under the of but nonetheless denied the on two prohibited public-welfare offenses. Child First, grounds. the court attributed to the inherently contemptible molestation is an protect par- an intent “to [the against crime an identifiable victim. To right possession” legal of the ents’] lump petty such a gambling crime with or girl without the inconvenience of meet- child mislabeling gravity commercial belittles the ing mistake of as an excuse. Id. 172 of intentional sexual-abuse crimes. Con- J.). (Blackburn, Second, adopted the court versely, degree punishment of and socie- what has come “moral to be known as the opprobrium befitting tal true sexual-abuse wrong” theory under which a mistake-of-fact cavalierly imposed crimes cannot so be with- defense will be denied if the ac- defendant’s regard culpable out intention of the tions, under facts that the defendant reason- light actor as can slap-on-the- fines and true, ably yet morally believed be are or penalties typical public- wrist attached “intrinsically wrong” though legally welfare offenses. wrong any sense. Id. at 176. In Prince intrinsically justification wrong A act was the commonly second interfer- advanced possessory rights ence with the of the four- support of strict laws is the teen-year-old’s mother father —not any and legal wrong” wrong” “lesser or “moral theo- corruption teenager harm to or her- ry. origin apology The of this lies self.27 English Prince, Regina celebrated case

jury teen-year-old much defendant was & Viet. e. ^[1875] 25 found that “the older, L.R. 2 from her father’s household. A 100,26 Annie charged Cr.Cas.Res. 154. There the girl Phillips, under section 55 of 24 illegally taking went with the who looked four- pris- without tors nal A united front of modern 213.6 cmt. 5.1(c) law. lambastes precedent or at 410-11.28 See, e.g., moral-wrong theory foundation Furthermore, 2 n.6; Model Penal LaFave & legal commenta- the crimi- whatever Scott, Code, willingly, oner prisoner that she told the theory in bygone suasion this have had eighteen years she was age, era, of that he be- dissipated. that force has now Fornica- eighteen lieved that she years age, of longer tion in and of is no itself a crime grounds he had reasonable girlfriend for so Rhode Island.29 If Alex’s in this provided, 26. provided Section 55 of &24 25 Viet. c. 100 the defense in the 1885 statute was unlawfully "Whosoever shall take or cause to be later limited to first-time offenders under the any girl, being taken unmarried under the of twenty-four by the Criminal Law of Amendment years, possession against sixteen out of the Act of 12 & 13 Geo. 5 ch. 56. See Sexual mother, any the will of her father or or of other (4 69) §§ Act & Eliz. 2 c. Offences of 1956 her, person having charge the lawful care or 6(1)(3), reprinted Halsbuiy's in 8 Statutes shall be of a misdemeanor.” (3d ed.1969). England 419-20 notes 27. England Amendment Act of Res. anyone’s no mens anyone.” Regina v. statutory rape §§ teen and sixteen father’s explains that Notably Interestingly, 154, 175. after its consent, though wrongly, 907-08 possession, rea; 5, reprinted Prince was “[i]f so if he did not know she was in (defilement) issuance, (2d ed.1948). Bramwell, J., the taker Prince, nor in the care or in 5 rejected by at least with age. (48 Halsbury’s of a ^[1875] believed he in the same breath & Viet. See Criminal Law girl he would have L.R. 2 availability between thir- statute ten Statutes of charge had Cr.Cas. c. 69) 29.See fense puritanical Ten Town where such Fact shall be Committed with sonable mistake of fornicator "shall be lacks. Thus in 1662 the law carried a gressions Myers, defense in At least Stripes Reasonable P.L.1989, Statutory Rape, 64 other than those for degree one scholar times, English ch. punishments for moral trans- Mistake more, flexibility publickly Whipped 214, § has never been denied as statutory Mich.L.Rev. concluded that pay Age: 1. Even in more required capital a Fine or rape A Needed De- case.” 11-37-8.1 felonies in said Forty "rea- L. (as especially when the debate alleged in fact cases. This is so ease had been sixteen she Alex), during on this reached crescendo ly told no crime of kind would issue very period enacted Legislature either them in which have been committed of yet chapter in on assault and merely by having engaged consensual sex. revised Garnett, (Bell, J., to conspicuously at 812 still omitted reference Accord it as a the constitute dissenting). because General As child molestation would And as- say strict-liability we should sembly unwilling has been to that con offense. Thus teenagers aware of sexual relations between sume that the was well sensual widespread the of strict-lia- age the of sixteen is as a matter of law extant criticism over not have intrinsically judges bility statutory-rape not laws and would wrong, we as should adopt widely con- condemning likely It is also safe been such a be such behavior. by the espoused as has predict position that this Court would raise more demned been including any explanation or eyebrows say, majority of it as did than one set should without Prince, girl suggest a striet-liabili- majority plain language that a the such the under majority possession ty her age interpretation of is a mere of was warranted. Prince, 2

father. See Cr.Cas.Ees. at J.). (Bramwell, (Blackburn, J.), Rather, Ill Legislature expressly and until the unless Emerging The Rule otherwise, I believe that we commands principle adhere to bedrock should the points triad I would last of the of facts, of criminal law that “a mistake growing of American make is that a number grounds, to the extent that if the reasonable jurisdictions adopted now a new and prison facts were as the acts of the believed antiquates emerging still American rule make of no guilty er would him criminal judicially imposed strict-liability schemes all, excuse, such offence is an of statutory rape. The Penal Code Model implied every charge is criminal excuse 1962(MPC) rejects liability in expressly strict every at 170 criminal enactment.” Id. rape the or sexual-assault context. Section (Brett, J., dissenting). 213.3(l)(a) code, rough equivalent of that the 11-37-8.1, in- though prohibit of our would against Even academic criticism age the of does with a female under strict cases tercourse years sixteen the actor is at least four contrary-minded bind this or a when the MPC ex- profound reflect a older than the victim.30 But Assembly, General it does pressly legal about the allows a reasonable-mistake-of-fact thought shift mistake-of- here, when, alleged victim is as age defense context of sex offenses. defense the the old, § 213.6 Moreover, years 2 MPC give pause it this Court at least ten see should adopt an deafening although emt. the does it detonate MPC before decides to victim presumption that a child strict-liability of cham- irrebuttable blast within silent age of cannot rea- actually ten be of Rhode Island’s child-molestation under bers sixteen-year-old.31 The recently sonably for a especially we have so taken when laws— attach- has effect of Tevay approach MPC thus otherwise in the declared Griffith Shillings of His Use of ed in Providence Plantations tations: added.) duction sexual intercourse with (MPC) less Section Colony than J. the Poor provides, Majesties Colony Cushing, 1647-1719 at 143 into the ^[16] of 213.3(l)(a) Offense Defined. Rhode Island offense if: of such Town." "Corruption Town The Earliest Acts old a female not Treasury, and the the Model Penal (a) America, of the other Rhode A male Providence Minors actor Acts and Laws and Laws his and for the Island (Emphasis is at least person who wife and Se reprint- Plan- Code *** of 31. believed the child to below critical criminality actor criminality depends sions take the critical ets in actor ^[4] Section years he as to did not know Generally Applicable original.) reasonably prove older age.” 213.6(i) of conduct Age. other by preponderance than of (Emphasis than Whenever in this Article believed the of MPC the child's on the depends be it is other older it is a to Article child's added.) age, person.” on a child’s child to be provides, defense that the than 10. being 213(1) reasonably evidence below a (Brack “Provi- being above When Mis- “mens rea ing a recklessness to if victim [at least] able over twelve old where MPC, statutory rape.” element in legislature’s bring “the failure to forward § 213.6 cmt.2 at 415.32 prohibition knowledge either the as * * * a defense leaves the court without Today some fifteen American states have Alaska, noted, guidance”). And has held adopted the inMPC some form. Some set a age higher constitutionally critical the defense to be than the MPC’s common- mandated. designation (occasionally high law of ten In Hernandez Supreme Court of Cali- sixteen) as fourteen or for the no-credible- departed prior fornia from its own decisional presumption, error but all these states estab- rejected law that had the mistake-of-fact de- penalties lish rigid far more flexible than our fense context. Califor- twenty-year minimum sentence —even for statute, punished underage nia’s inter- egregious type the most of forcible child misdemeanor, course as a mere contained expressly molestation.33 Six additional states general language employed similar to that provide for a mistake-of-fact defense without language any statute —that devoid of limitation,34 states, age and two California explicit requirement reference to an intent Mexico, and judicially recognized New The Hernandez court de- liability. to strict mistake-of-age defense ge- construction of cided that such a statute no room for left statutory provisions neric similar to ours. liability. explaining strict Hernandez, holding its People 629, 61 Cal.2d 39 score, noted, 361, (1964) (en Cal.Rptr. 673, high the California court 393 P.2d 677 State, banc); Perez v. 160, penalty imposed [statutory “The severe 111 N.M. 803 P.2d (1990) (mistake-of-fact 249, 251 avail- rape], reputation the serious loss of convic- England adopted 20-01(2), 12.1-20-03(1), 12.1-32-01(3) approach early (1997) a similar as 1885, expressly providing (critical sentence); for the mistake-of- age fifteen and no minimum age punishing defense for its law 2907.02(A)(1)(b), defilement of Page's §§ Ohio Rev.Code Ann. girl ages between the of thirteen and sixteen. 2907.04(A) (1996) (age sep- and 2929.14 thirteen (48 See Criminal Law Amendment Act of 1885 & ten-year arates maximum sentence for strict-lia- 69) 5, §§ reprinted, 49 Viet. c. 4 and in 5 Hals- misdemeanor); bility felony from Or.Rev.Stat. (2d ed.1948). bury's England Statutes 907-08 161.605, (1997) (critical age §§ 163.325 sixteen English statute remains silent with sentence); and no minimum 18 Pa.Cons.Stat. applied provision punishing defense as ato 1103(2), (West 1998) (critical §§ 3102 and 3122 thirteen, girl age intercourse with a under the maximum); age ten-year fourteen and provides years. but for a sentence of term of 61-8B-3, §§ W .Va.Code 61-8B-9 and 61-8B-12 1446, Halsbuiy's England See 10 § The Laws of (Michie 1997) (critical age of eleven and one-to- (3d ed.1955). at 750 five-year range age less than and victim eleven sixteen); days ninety age Wyo. if victim under 13-701(C) §§ 33. See Ariz.Rev.Stat.Ann. and 13- 6-2-303, 2—306(iii) § Stat.Ann. and 6-2-308 6— 1407(B) (West 1997) (critical age fourteen and (1997) (critical age fourteen raised from twelve sentence); seven-year maximum Ark.Code Ann. fifteen-year in 1997 and maximum sentence if 5-4-401(a)(l) 5-14-103(a)(4) (Michie §§ and years actor more than four and older victim over 1997) (critical age forty-year fourteen and maxi- twelve). age sentence); §§ mum Colo.Rev.Stat.Ann. 18-1-105 (West 18-3-403(l)(e) 1997) (critical age fif- 53a-67(a) (West § 34.Conn.Gen.Stat.Ann. cmt. sentence); two-to-eight-year teen and Haw.Rev. Hernandez, 1998) (following People v. 61 Cal.2d 702-204, 707-730(b) §§ Stat. (1996) 706-659 and (1964) (en Cal.Rptr. 39 P.2d 673 crime, (mandating every a mens rea for banc)); § (requiring Del.Code Ann. tit. fourteen, age twenty-year critical sentence); maximum legislative "plainly ap- state mental unless intent 5/12-16(d), Ill.Comp.Stat. 5/12- 1995) 441(1) (Michie § pears”) and tit. 8—l(a)(l)(5)(West Ill.Comp.Stat. 17 and 730 5/5— (recognizing generally); mistake of fact Ind.Code 1997) (critical age thirteen and three-to-seven- 4-3(e) (reasonable §Ann. mistake-of-fact sentence); 17-A, 35-42— year Me.Rev.Stat.Ann. tit. molestation) § defense to child 35-41-3-7 254(1), (2) (West 1997) (critical § age fourteen (mistake generally); Ky.Rev.Stat.Ann. fact age and actor must be nineteen and five 1990); (Michie § §Ann. 39- 510.030 Tenn.Code crime); years older than victim to constitute Parker, (Michie 1997); 11-502 see also State v. 609.344(l)(b) (1997) (critical age Minn.Stat. 1994) (Tenn.Crim.App. (general 887 S.W.2d 825 fifteen-year thirteen and five or de- maximum provision mistake-of-fact fenses); extends to sexual of- pending ages); on (1994) (critical relative Mo.Rev.Stat. 9A.44.030(2) (West Wash.Rev.Code 566.020 and five- thirteen 1998) (allows twelve); year mandatory mistake-of-fact defense when rea- minimum if child over 45-5-502, predicated §§ on victim's declara- MontCode Ann. 45-5-511 sonable belief tions). (critical thirteen); §§ 12.1— N.D.Cent.Code ** * entails, condemn person fact would hesitate to and the it has sible

tion as a in regarded good for centuries crime been a claimed faith belief untenable extremely make it volving turpitude, moral of an ‘infant’ female whose of consent unlikely meant to in obviously preclude exis- tender morally make innocent to sure the clude grounds for that tence of reasonable belief. * * * Hernandez, escape.” did not 39 Cal. only hold that in the absence of We Rptr. (quoting 393 P.2d at 677 otherwise, a charge a legislative direction adopting previously applied reasoning statutory rape wherein a defensible People v. bigamy Vogel, statute Hernandez, lacking.” criminal intent is (1956) (en Cal.2d P.2d Cal.Rptr. 393 P.2d at 677. banc)). The court also noted that California taking the With Hernandez and the MPC principle exists no conflict between lead, jurisdictions, twenty-three American culpability flows malicious intent half, nearly explicitly recognize now some policy participants in sexual form mistake-of-age defense. duty activity charged are to ascer remain arguably Of those states tain their bedfellows: camp, expressly striet-liability seven states departure [prior precedent] “Our the defense statute.35 re- disallow a in no manner of withdrawal indicative jurisdictions ju- maining nineteen either it policy from the is in the sound rape construing dicial silent stat- public protect sexually interest ac- decisions blithely or are assumed to exploitation. respon- tive female from No utes like ours36 Cash, 230, (Michie 1996) (but People § 419 N.W.2d 822 35. D.C.Code Ann. 22—4111 v. Mich. 351 sentence); 750.520b(2) (1984); Mich.Comp.Laws § § no (1998); Fla.Stat.Ann. 794.021 minimum Ann. (West 1988) (West 1990) (no sentence); § 14:80 Mississip La.Rev.Stat.Ann. minimum (ten-year State, (Miss. 1997) sentence and actor must be maximum pi: 691 918 Collins v. So.2d older); least two N.J.Stat.Ann. capi (refusing in forcible mistake-of-fact defense 2CJ4-2, (West 2C:14-5(c) 1995) §§ and 2CJ4-6 prosecution tal-rape-of-child-under-fourteen older, (actor be at must four and five- least proposed where instruction not limited rea mandatory year for minimum second of good-faith no mistake and evidence of sonable fense); 15.20(3) §§ N.Y. Penal Law and 130.35 belief); State, (Miss. Warren v. 456 So.2d 735 (West 1998) (but unless no minimum sentence 1984) (death fully discretionary); or life sentence eleven); victim under Utah Code Ann. 14, Campbell, Neb. 473 Nebraska: State v. 239 (1995) (abrogating §§ 76-2-304.5 and 76-3-203 (1991) (even misrepresenta 420 defense); active N.W.2d Elton, (Utah decision in State v. 680 P.2d 727 §§ tion 28-105 and no Neb.Rev.Stat. 1984), implied a mistake-of-fact defense (but (1995) one-to-fifty-year sentencing 28-319 sentence); five-year and § minimum Wis.Stat.Ann. State, 865, range); 110 Nev. Nevada: Jenkins v. (West 1996) 939.43(2) (forty-year maximum (1994); 877 P.2d 1063 Nev.Rev.Stat.Ann. incarceration). sentence of 1997) (one- 193.140, 200.366(3)(b) (Michie §§ year twenty- if defendant under maximum State, 534, Ala.App. 16 36. Alabama: Miller v. 79 Perrin, one); Hampshire: v. 119 New Goodrow 13A-5-6, (1918); §§ So. 314 Ala.Code 13A-6-61 483, (1979) (divided court) 864 N.H. (1994) (ten-year if vic and 13A-6-62 minimum (mistake-of-fact constitutionally man twelve, two-to-twenty- tim less than otherwise dated); §§ 632-A:3 and N.H.Rev.Stat.Ann. sentence); State, year Georgia: Tant v. 158 Ga. (but 651:2(II)(b) (1996) seven-year maximum and 624, (1981); App. 281 S.E.2d 357 Ga.Code Ann. discretion); judicial State v. North Carolina: 16-6-3(b) (1996) (one-to-twenty-year § sentence 197, (1970); Murry, 176 S.E.2d 738 277 N.C. twenty); less v. if actor is than Idaho: State (1997) 14-1.1(a)(2) §§ sentence; 14-27.2 N.C.Gen.Stat. (no 405, (1990) (one- Stiffler, Idaho 220 117 788 P.2d imprisonment maxi minimum life mitigat year minimum and court consider State, mum); Reid 290 P.2d 775 Oklahoma: v. factors); (1997); § ing 18-6104 Idaho Code 21, (Okla.Crim.App.1956); tit. Okla .Stat.Ann. (1981); Tague, v. N.W.2d Iowa: State 310 209 (West 1983) (five-year §§ manda and 1115 (West 1998) 1112 709.4(2), §§ Code Ann. 902.9 Iowa sentence, tory no crime defendant sentence); minimum (ten-year maximum Kansas: no cases age eighteen and over fourteen 21-3502, under victim §§ point; 21- on Kan.Stat .Ann. consents); cases sentence); South Carolina: no on 4501(d)(1) (but two-to-ten-year (1985) (twen 571, point; State, Ann. 16-3-653 S.C.Code Maryland: Garnett v. 332 Md. Ann., Pun., ty-year (1993); where over eleven maximum victim & A.2d 797 Md.Code Crimes discretion); 27, (1996) (but judicial Dakota: State v. 464A(b) South twenty-year Article Fulks, (1968), sentence); N.W.2d 418 83 S.D. Massachusetts: Common maximum Ree, grounds, State v. Knap, overruled on other 592 N.E.2d 747 wealth v. 412 Mass. (S.D.1983); Mass.Gen.Laws, (West (1992); S.D. Codified Laws N.W.2d ch. sentence); 22-22-1(5) (fifteen-year 1998) §§ (five-year Michigan: maxi- 22-6-1 and minimum Moreover, judicial impose liability strict a recent decisions without definite stat- when judicial opinion directly point.37 ute or on impose legislative have discovered a intent to Notably, putatively of these states that im- they legisla- liability strict have done so on pose liability, impose strict almost all persuasive far tive evidence that is more mandatory provide minimum for sentence extensive than that on which we have to minimum; relatively many low of these Garnett, example, content ourselves. incorporate flexibility statutes measures such Maryland high Mary- court found that imposing lighter sentence or no criminal legislature adopting a land’s had considered liability alleged when the actor and the vic- mistake-of-fact defense a number of bills relatively age. tim are close in See notes reports ultimately or committee but had re- 35, 36, swpra. 804-05; jected proposal. 632 A.2d at see Of those states which strict Searles, also Vt. A.2d judicially mandated rather than decreed (1993). legisla- such We have no statute, only high eleven state courts have history tive before us. mistake-of-age visited the issue in the con- statutory rape resurgence text of since the Supreme The Massachusetts Judicial question during interest the mid- Court, earlier, as noted canon of relied Virginia, example, 1960s. squarely last statutory construction when statute is addressed of age mistake as a defense to judicial following pronounce- reenacted statutory rape in 1878. See Lawrence v. ment, legislature adopt is deemed to Commonwealth, 71 Va. 845 Accord- judicial interpretation as its own intention. ingly many jurisdictions only authority legislature’s Thus the Massachusetts failure strict-liability for a musty judicial rule ais provision to amend the at issue was taken as product radically decision—the of an era of judicial confirmation of the notion set out in different mores and social attitudes —when nineteenth-century Massachusetts case law sex, extramarital let alone sex between engag- mistake of was no defense to consenting teenagers, generally consid- See, ing e.g., in sex awith child. Common- morally reprehensible. ered Obviously these Miller, 521, wealth v. 385 Mass. 432 N.E.2d yet courts have not opportunity had an (1982). Cash, Similarly People v. respond consider or to contemporary (1984), 419 Mich. 351 N.W.2d 822 against criticism leveled their earlier strict- Michigan high legisla- court decided that its liability holdings. probable Thus it is that at ture, law, (like by reenacting a California) had least some of these courts today reject tacitly liability holding would strict acceded to a 1922 of that given court chance to do so.38 rejecting mistake-of-age defense. Id. 351 ten); Age Statutory mum sentence if Rape, victim over Texas: As To 46 A.L.R.5th Defense State, Vasquez (1997). (Tex.Crim.App. v. 622 S.W.2d 864 1981); 12.33(a) §§ Tex.Penal Code Ann. (West 1994) (two-to-twenty-year range .011 likely 38. Alabama is one of numerous candidates. victim); defendant three older than Ver One commentator has attacked Alabama’s lead- Searles, mont: State v. 159 Vt. ing mistake-of-age case on the defense to statuto- (1993); 3252(b)(2) Vt.Stat.Ann. tit. ry citing rape, a decision rendered in as (1994) (no thirty-five-year minimum and maxi controlling erroneously rely- Alabama cases and sentence); Virginia: mum Lawrence Common v. ing precedents contrary on that "were all to this wealth, (1878); 71 Va. 845 Va.Code Ann. 18.2-' point” "totally point.” Singer, off See Strict (Michie 1996) (mandatory five-year 67.1 mini Liability: Criminal Alabama State Courts Lead thirteen, mum sentence if child less than other Way Twenty-First Century, into the 46 Ala. minimum). wise no State, (1994) (discussing L.Rev. Miller (1918)). Ala.App. 79 So. 314 The author Interestingly, §§ 37. the MPC commentators as- Ala- concludes that 13A-2-4 and 13A-2-6 of (which penal expressly recog- sumed without elaboration that Rhode Island bama’s 1977 code MPC, impose liability. would strict nize mistake-of-fact defenses in blanket terms commentary every 213.6 cmt. 2 n.5 Other a crime mens rea element mandate dubiously liability legislative impose strict strict attributes to states absent clear intent to clearly Campbell, liability) legislatively abrogated follow the MPC model. See C.' the decision Mistake or Lack As To Victim’s Miller. of Information “double-whammy” rains unjustified In N.W.2d 826.39 contrast Rhode Island indiscriminately prior crushing law for Assem- had no case the General down its blows bly adopt silentio it enacted the upon teenage sub when intentioned lovers innocently statutory-rape provision in Certainly current molesters alike. and heinous child Moreover, twenty-year mandatory-mini- Legislature may enact strict measures mum term of incarceration all dis- withdraws discourage intercourse minors or with sentencing court save for cretion from the mandato- teenage pregnancy. to avoid But a option suspending portion of ry twenty-years-to-life sentencing range is years to be served —a measure of somewhat if mis- utterly proportion goal out of to this illusory flexibility because it can be nullified not available as a defense. take probationary a later as minor infraction as Furthermore, Assembly’s the General § 12-19- frequenting a tavern. See G.L.1956 punish and inten- manifest aim to to deter 8(a) (sentence may be “on such suspended not tional sexual molestation of children does fix”); may terms conditions the court judicial require the creation of strict 5.4, Campbell, Sentencing § A. Law Allowing a in this situation. criminal defen- (2d ed.1991) (wide range probation condi- upon accused sexual assault a teen- dant upon tions even noncriminal conduct based aged minor claim mistake imposed, including refraining from be prosecutors un- defense will neither burden consuming associating partic- alcohol or duly nor insulate true child molesters persons). ular juryA out a societal retribution. can sort For the I am unwill- above-stated reasons mistake-of-age in this con- legitimate Assembly ing to attribute to General an text from fabricated excuses.41 unexpressed place intention to Rhode Island sum, plain a statute language absent legal fringes current outermost otherwise, boy’s teenaged indicates practice thinking regarding actual premarital sex improvident participation defense, vir- mistake-of-age especially when reasonably he be- teenaged girl with a tually country no other state the whole enough to should lieved was old consent imposes inflexibly penalty harsh such teenager beginning his adult result in that culpa- true regard without defendant’s prison life in a convicted child molester as bility.40 majority’s my judgment con- twenty mandatory with a minimum term strict-liability version of 11-37-8.1 into a jail for the hanging over his head eases, mistake-of-age coupled crime foreseeable future. mandatory twenty- minimum statute’s I the trial prison sex-of- For these would reverse year sentence convicted reasons status, for a unparalleled an this case fender creates court’s conviction remand read, Notably, Michigan rejected upon conviction "[the defendant] 3-65 that 39. decision also penitentia- challenge liability, imprisoned noting shall be the state constitutional to strict for life ry jury by prescribes,” al- highly punishment its verdict so that the flexible attached to offense, penalty imprison- provided the court to "affix the for incarceration for lowed “any open possibility penitentiary term as the years,” ment in the state term of left may than "any ameliorating less mitigating and evidence in court in discretion determine jury impose a life support as to did not choose to mistaken belief life” if of defendant’s * * * added.) Although (Emphases the Mis- complainant’s age be sentence. considered provide People sissippi judge sentencing.” statute was later amended to trial Cash, at the time of v. possibility capital punishment well as 351 N.W.2d 827-28 Mich. Mississippi suggest that imprisonment, cases sentencing judicial has been discretion State, 918, removed. See Collins v. 691 So.2d majority Mississippi as the last 40. cites (Miss.1997) ("a impris- of death or life sentence puritanical justice bastion of its statuto because imposed”). be onment capital ry-rape possibility provide for the laws fitting rape. punishment But cases of child require clearer 41.Accordingly, I would much Mississippi Island —allows even Rhode —unlike negate a sentencing. legislative intent to mistake- justice evidence the trial broad discretion in State, of-age I would alter this Court's defense before Thus in v. So.2d 738-39 Warren (Miss. 1984), previous Mississippi law's insistence high court noted common every offense. 97- element of criminal Ann. mens rea that the version Miss.Code former new trial that would allow Alex to raise a

reasonable-mistake-of-age defense to the

charges.

NEWPORT COURT CLUB

ASSOCIATES et al. TOWN COUNCIL OF the TOWN

OF MIDDLETOWN. 96-646-Appeal.

No. Supreme Court of Rhode Island.

Aug. Souza, Jr., Kelly, Fred A.

Randall Provi- dence, for Plaintiff. Richard; McGinn,

Steven M. Peter J. Re- Providence, Partington, becca Tedford Defendant. WEISBERGER, C.J.,

Before LEDERBERG, BOURCIER, FLANDERS GOLDBERG, JJ.

Case Details

Case Name: State v. Yanez

Court Name: Supreme Court of Rhode Island

Date Published: Aug 4, 1998

Citation: 716 A.2d 759

Docket Number: 97-110-C.A.

Court Abbreviation: R.I.