Mistake of age can be a defense to a criminal charge for statutory rape. If you honestly and reasonably believed that the alleged victim was at or above the age of consent, this can serve to negate the crime in certain states and jurisdictions.
What is statutory rape?
Statutory rape is the crime of having sexual intercourse with someone who is:
- Under the age of consent,
- Physically incapacitated, or
- Mentally disabled.
Statutory rape laws forbid all sexual intercourse in these situations, even when it is consensual. This is because these groups of people are legally unable to consent to sex. They can agree to have sexual relations or even initiate them. However, because they are not capable of consenting, any sexual act is a non-consensual one.
How old is the age of consent?
Many statutory rape cases involve alleged victims who are under the age of consent.
Different states have different age of consent laws. In California, for example, the age of consent is 18 years of age.[1] In most states, like Iowa, it is 16.[2] In a few states, like New York, it is 17.[3]
Unless a state has a “close-in-age” exemption, also known as a Romeo and Juliet law, it is statutory rape to have sex with someone under the age of consent.
What is the mistake of age defense?
The mistake of age defense to statutory rape is a reasonable belief that the alleged victim was over the age of consent at the time of the offense. Not all states recognize mistake of age as a defense to statutory rape.
The defense is a form of the mistake of fact defense. It argues that you could not have formed the necessary mens rea, or criminal intent, to commit the crime.
The California Supreme Court first recognized that a reasonable mistake of age was a defense to a statutory rape charge in 1964.[4] Some other states have come to recognize the defense through the common law process[5] or by enacting statutes.[6]
However, many other states still do not recognize that a good faith belief in the alleged victim’s age is a defense to statutory rape charges. The criminal law in these other states still considers statutory rape to be a strict liability sexual offense. This means that your intent does not matter. All that matters is whether the alleged victim was actually underage.
The Model Penal Code recommends a middle-ground between these extremes. It recommends allowing mistake of age to be an affirmative defense for cases involving children over the age of 10.[7]
The age of consent varies by state from 16 years old to 18 years old.
Is it an affirmative defense?
In some states, mistake of age is an affirmative defense. In others, it is not.
Contrary to the law in some states, mistake of age is not an affirmative defense in California.[8] This means that you do not have the burden of proving your mistake of age defense. Instead, the prosecutor has to prove, beyond a reasonable doubt, that you did not reasonably and actually mistake the alleged victim’s age.
In lots of other states, though, you have the burden of proving that you had mistaken the alleged victim’s age. If you do not convince the trial court of your defense, you can be liable for statutory rape or other sexual assaults involving a minor, like child molestation.
[1] California Penal Code 261.5 PC.
[2] Iowa Code Ann. § 709.4.
[3] New York Penal Law § 130.25.
[4] People v. Hernandez, 61 Cal. 2d 529 (1964) (overruling People v. Ratz, 115 Cal. 132 (1896)). See also Mistake of Age as a Defense to Statutory Rape, 22 Wash. & Lee L. Rev. 119 (1965).
[5] See State v. Fremgen, 889 P.2d 1083 (Alaska Ct. App. 1995).
[6] See Minn. Stat. § 609.345(b).
[7] Model Penal Code § 213.6(1) (“Mistake as to Age. Whenever in this Article the criminality of conduct depends on a child’s being below the age of 10, it is no defense that the actor did not know the child’s age, or reasonably believed the child to be older than 10. When criminality depends on the child’s being below a critical age other than 10, it is a defense for the actor to prove by a preponderance of the evidence that he reasonably believed the child to be above the critical age”).
[8] CALCRIM 1072 – Misdemeanor Statutory Rape. (“The defendant is not guilty of this crime if (he/she) reasonably and actually believed that the other person was age 18 or older. The People must prove beyond a reasonable doubt that the defendant did not reasonably and actually believe that the other person was at least 18 years old. If the People have not met this burden, you must find the defendant not guilty of this crime.”)
