We’ve been considering the evolution of concepts of mens rea in the context of statutory rape, especially as that offense is defined in Texas. In our last post, we started examining the cert petition that arose out of the decision in Fleming v. State, 441 S.W.3d 253 (Tex. Crim. App. 2014). You can read the cert petition here.
Basically, in this country’s early legal climate, even a “reasonable but mistaken belief” concerning an alleged victim’s age could not vitiate culpability for statutory rape because that alleged victim being of age would not have rendered a defendant’s actions legal under old common-law rules. A defendant’s culpable mental state (knowledge he or she was committing another offense like that of fornication) provided the mens rea necessary to support a conviction—the prosecution didn’t need to show that the defendant knew his or her sexual partner was not of legal age because the defendant was committing a crime regardless.
A 1909 Texas opinion (Zachery v. State, 122 S.W. 263, 265 (Tex.Crim.App. 1909)) explained that a person “who has connection with a female which would, in any event, be unlawful, must know at his peril whether her age is such as to make the act a rape.”
Strict liability in this context thus seems like an arguably recent development, relatively speaking. As Mr. Fleming traced the history in his cert petition, beginning in the early twentieth century, state courts began to dispense with a “transferred-intent” theory in this context and began adopting a truly strict-liability interpretation of statutory and common law, one that eliminated any requirement of proof concerning knowledge of age—or even proof of a defendant’s knowing commission of another offense.
Academic authorities and legal commentaries, however, have recognized that the exception to the mens rea requirement in this context has rested on a theory of “transferred intent.” In Massachusetts, in 1896, for example, knowledge of fornication could substitute for lack of knowledge concerning a victim’s age. Transferred intent mattered.
And following Lawrence v. Texas, 539 U.S. 558 (2003), a defendant’s knowledge that he or she is engaging in fornication or adultery can no longer provide the necessary culpability; it can’t substitute for a defendant’s lack of knowledge that a sexual partner was not of legal age.
The Texas statute defining statutory rape does not qualify as a “public welfare” provision: The conduct proscribed doesn’t somehow threaten the entire community’s health or safety. The complete elimination of any mens rea requirement would only protect a discrete (and very small) class of people, namely those under the age of seventeen, who reasonably appear older, and who deliberately conceal or affirmatively mislead others concerning their true age. The idea of a “public-welfare exception” to the mens rea requirement generally focuses on statutes condemning individual acts capable of inflicting widespread injury on the broader community. Courts have recognized that statutory rape does not qualify as a public-welfare offense.
In addressing due-process fundamentals, Mr. Fleming’s cert petition explained that, “[b]y completely dispensing with a mens rea requirement concerning a sexual partner’s age, and by imposing as punishment a potential life sentence to confinement,” the Texas statute was “offensive to principles ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental.’”
This issue merits attention now. As Mr. Fleming’s cert petition pointed out, state courts of last resort and state legislatures across the U.S. “have reached diametrically divergent conclusions regarding whether a criminal defendant’s knowledge of his sexual partner’s age is relevant or legally necessary for conviction of the offense of ‘statutory rape.’” Where the fundamental right to engage in consensual adult sexual relations is chilled by adoption of purely “strict liability” offenses, but is not similarly chilled in other states because of mens rea requirements, the U.S. “Supreme Court’s intervention to resolve this constitutional disparity is surely warranted.”