Generally, if minors lie about their age online and then you engage in a sexual act with them, you can still be liable for a sex crime. In most states, not knowing that your partner is under the age of consent is not a legal defense. The minor will typically not face any repercussions for lying about their age.
This chart illustrates the potential charges you could face:
| Conduct after the minor lied about their age | Potential criminal charges |
| Sexual intercourse | Statutory rape |
| Other sexual activity | Sexual assault, oral copulation with a child, lewd acts with a minor, or sexual abuse |
| No sexual activity | Online solicitation of a minor |
Not knowing your partner’s age is not a defense in most states
In most states, not knowing how old your sexual partner is cannot be used as a legal defense. Adults are generally required to make sure that their partner is over the age of consent.
Some states, like Utah, have passed laws that forbid the use of the mistake-of-age defense against sex crime charges involving minors.[1] In other states, courts have forbidden the use of the defense.[2] These states include:
In these states, misrepresentations about a minor’s age are not a legal defense, no matter how convincing they are.
There are exceptions
Some states do allow for the mistake-of-age defense. These states fall into two categories:
- the mistake-of-age defense is always available, and
- the defense is available, but only if the minor is above a certain age.
Only a couple of states always allow the defense. These states are:
Most states only allow for the mistake-of-age defense if the minor is over a specific age. These states include:
In many of these states, the age is 13 or 14, though the criminal law in some states differs. The minimum age is set because it is impossible to reasonably believe that a minor under that age is over the age of consent.
In some of these states, mistake-of-age is an affirmative defense. You would have to prove that you had a good faith, honest, and reasonable belief that the minor was over the age of consent. In other jurisdictions, once you raise the mistake-of-age defense, it is up to the prosecutor to overcome it. The criminal defense attorneys at our law office have supported this defense strategy with the following types of evidence:
- the underage person’s true age was close to the age they claimed to be,
- the minor looked much older than they actually were,
- the minor showed a fake ID that was convincing, and
- the young person crafted an extensive online profile to cover up their real age.
Potential sex crime charges
If you had a sexual encounter with a minor after they lied about their age online, you could face criminal charges. The specific charge you could face would depend on the nature of the sexual encounter. Generally, these charges would be:
- sexual assault, and/or
- statutory rape.
Different states may have different names for these offenses. Additionally, other charges can be filed depending on the factual circumstances of your case. In many states, you could face charges even if there was no sexual conduct.
Sexual assault
If the sexual encounter did not involve intercourse, it is often the crime of sexual assault. Sexual assault is generally the crime of nonconsensual sexual contact.
This offense is often a misdemeanor. Some states, however, treat it as a felony. Aggravating factors can also make it a felony.
The sexual contact with the minor would be nonconsensual even if the minor consented to it, and even if the minor initiated it. People under the age of consent cannot legally consent to sexual activity.
Statutory rape
If there was intercourse, the crime charged would typically be statutory rape. This is the crime of having sex with someone under the age of consent. This is a strict liability crime. You can be convicted by law enforcement even if you thought the minor was of age.
The age of consent varies by state. In the U.S., it is either 16, 17, or 18.
Most states have a close-in-age exemption to statutory rape charges. Also known as a Romeo and Juliet law, this is a defense for a defendant who had sex with someone who was under the legal age of consent, but there was only a couple of years of difference between the ages of the defendant and the minor. For example, under Pennsylvania law:
“A person commits a felony of the second degree when that person engages in sexual intercourse with a complainant to whom the person is not married who is under the age of 16 years and that person is either: (1) four years older but less than eight years older than the complainant; or (2) eight years older but less than 11 years older than the complainant.”[15]
This law would protect you if you were 17 years old and had sexual intercourse with a 15 year-old.
However, some states’ statutory rape laws, like California’s, do not have a Romeo and Juliet law. In these states, it is always illegal to have sex with someone underage.
Other offenses
The criminal defense lawyers at our law firm have found that, depending on the state and your particular factual circumstances, you could also be charged with other offenses like:
- child pornography,
- sexual abuse,
- lewd acts with a minor, and
- oral copulation with a minor.
You could face criminal charges even if you did not have a sexual relationship with the minor. Arranging a meeting with a minor for lewd purposes, also known as online solicitation of a minor, is a crime.
Penalties of a conviction
A conviction for any of these offenses will typically come with:
- prison or jail time,
- probation, sometimes instead of prison, and often after prison time has been served,
- criminal fines,
- requirements to register in a sex offender registry, and
- social stigmatization of being a child sex offender.
A conviction for the most serious charge, which is typically statutory rape, can carry numerous years in prison. In California, for example, a conviction for statutory rape involving bodily harm and a child under the age of 14 carries life in prison.[16]
If minors lie about their age they rarely face consequences
As for the minor who lied about their age online, they will rarely face consequences for their actions. This online activity, known as “catfishing,” is common on social media and online dating sites and dating apps like Tinder.
Legal Citations:
[1] Utah Code 76-2-304.5 (ruled constitutional in State v. Martinez, 52 P.3d 1276 (2002)).
[2] Fleming v. State, 455 S.W.3d 577 (2014) (Texas).
[3] State v. Blake, 63 Conn. App. 536 (2001).
[4] State v. Buch, 926 P.2d 599 (1996).
[5] State v. Stiffler, 788 P.2d 220 (1990).
[6] Jenkins v. State, 877 P.2d 1063 (1994).
[7] Alaska Statute 11.41.445(b).
[8] Kentucky Revised Statute 510.030.
[9] Arizona Revised Statute 13-1407(B).
[10] CRS 18-1-503.5(1).
[11] Indiana Code 35-42-4-3.
[12] Perez v. State, 803 P.2d 249 (1990).
[13] Oregon Revised Statute 163.325(2).
[14] Revised Code of Washington 9A.44.030(2).
[15] 18 Pennsylvania Consolidated Statutes 3122.1.
[16] California Penal Code 288(i) PC.
