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Mens Rea: Returning To Texas Statutory Rape

  • By: Fertitta & Reynal, LLP
  • Published: February 7, 2019

Our discussion of mens rea started out with a brief exploration of statutory rape and Texas case law. Let’s go back to that context for a few posts. After the Texas Court of Criminal Appeals announced its decision in Fleming v. State, 441 S.W.3d 253 (Tex. Crim. App. 2014), which we discussed in this blog a few weeks ago and which involved a conclusion that mens rea related to age is not necessary to support a conviction for statutory rape in Texas, the defendant Mr. Fleming sought review in the U.S. Supreme Court. In his petition for a writ of certiorari, he explored the history of statutory rape and the evolution of the law related to this offense.

You can read the cert petition here.

The question presented for review was whether § 22.021 of the Texas Penal Code was unconstitutional under the Due Process Clause of the Fourteenth Amendment because of its failure to require the state to prove a culpable mental state/mens rea relating to a sexual partner’s age, or because of its failure to permit presentation of an affirmative defense based on a subjectively and objectively reasonable belief that a sexual partner was of legal age.

In examining the issue, Mr. Fleming considered nineteenth-century English opinions on statutory rape and mens rea in related contexts. He cited Judge Hawkins, who wrote in Queen v. Tolson (a bigamy case) in 1889. “The ground upon which I have arrived at this conclusion,” Judge Hawkins said, “is simply this; that, having contracted her second marriage under an honest and reasonable belief in the existence in a state of things which, if true, would have afforded her a complete justification, both legally and morally, there is an absence of that mens rea which is an essential element in every charge of felony.”

Mens rea comprised a fundamental concern.

The confusion related to its application in the statutory-rape context arose because the act of unmarried sexual conduct was itself a violation of law and morality “in the olden days.”

As Mr. Fleming laid out in his cert petition, treatises from the 1800s considered a defendant’s “intent to violate the laws of morality and the good order of society,” regardless of “the consent of the girl” or lack of knowledge of her age. Essentially, “at the time the Fourteenth Amendment was ratified, proof of a defendant’s ‘knowledge’ that he was, in any event, violating other written ‘laws’ (whether ‘criminal’ or ‘moral’), would allow for his conviction of statutory rape notwithstanding his lack of knowledge that his minor consort was under a prescribed legal age.” The same principles applied “with regard to Texas decisional law, insofar as it would reveal the status of the mens rea requirement in the Nineteenth Century.”

Texas cases from this era considered the issue in this manner. “Connection with a child under the age of consent being criminal, one 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.” Old fornication statutes prohibited unmarried sexual conduct regardless of age. So as Mr. Fleming pointed out in his petition, “a ‘connection with a female’ was, ‘in any event,’ unlawful in certain circumstances under Texas statutory law.”

Because the law has evolved, application of mens rea concepts needs to evolve. We will discuss, in upcoming posts, more of this history, the evolution of the law, and the need for new approaches.

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