Suppose a state legislature enacted a law making any theft a crime punishable by twenty years' imprisonment. Within this law was a provision precluding an accused from introducing evidence that he unwittingly took property to which he was not entitled. Suppose further that after this law was enacted, an elderly woman hung her black coat in a restaurant's lobby and, upon leaving, mistakenly retrieved another's black coat. Under the hypothetical statute, her mistake could neither hinder the prosecution's case against her nor be asserted by her as a defense. By inadvertently taking another's coat from a crowded restaurant, the woman could and would be convicted and sentenced to a mandatory twenty years in prison.
Most would argue that such a statute would be egregious-it seems inconceivable that a legislature could turn an otherwise simple mistake into a top-level felony. However, most states have statutes or judicial rules with a similar effect in the area of sex crimes against children. Nearly every jurisdiction prevents a person accused of engaging in sexual intercourse with a child from introducing evidence that he did so under the mistaken belief that his paramour was above the age of consent, yet there is hardly the public outcry of injustice that one would expect if the hypothetical theft statute were enacted. On one hand, this is completely understandable. Protecting our children is of fundamental importance to our society, and rape, as the Supreme Court has said, is "the ultimate violation of self." Sexual predators who prey on children are considered among the most deviant members of society. Most, if not all, people rest easier knowing that anyone who engages in such activities is locked away for extensive periods of time. Moreover, pedophiles are viewed as heinous and vicious precisely because they actively prey on and derive sexual pleasure from children. It is for these reasons that statutory rape and child rape statutes carry such severe penalties, and rightly so. What happens, though, to the person who engages in sexual relations with a child only because he mistakenly believes his partner to be of age? Suppose, for instance, that a graduate student meets a girl at a college party. The girl enters the party with a group of friends, and seems comfortable in her surroundings; she even rebuffs some prospective suitors who attempt to dance with her and pour her a drink. The graduate student strikes up a conversation with this girl, and she tells him that she is a nineteen-year-old sophomore. Her physical appearance, dress, demeanor, and presence at such an event seem to confirm her representations. Shortly thereafter, the two engage in sexual intercourse. It is only then that the girl reveals that she is just shy of her thirteenth birthday. Under the law applicable in all but a very few jurisdictions, this graduate student would face a jail sentence of twenty years and would be unable to proffer any evidence of his mistake of the girl's age.
Jarrod F. Reich,
"No Provincial or Transient Notion": The Need for a Mistake of Age Defense in Child Rape Prosecutions,
57 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol57/iss2/5