Garnett v. State
332 Md. 571, 632
A.2d 797 (Md. App. 1993)
Court of Appeals of Maryland.
Raymond Leonard Garnett, the
defendant, was convicted in the Circuit Court, Montgomery County, of
second-degree rape under the statute proscribing sexual intercourse between
persons under 14 and another at least four years older than the victim. Garnett
appealed. The Court of Appeals affirmed.
MURPHY, Chief Judge.
Facts
Raymond
Lennard Garnett is a young retarded man. At the time of the incident in
question he was 20 years old. He has an I.Q. of 52. His guidance counselor from
the Montgomery County public school system, Cynthia Parker, described him as a
mildly retarded person who read on the third-grade level, did arithmetic on the
5th-grade level, and interacted with others socially at school at the level of
someone 11 or 12 years of age. Ms. Parker added that Raymond attended special
education classes and for at least one period of time was educated at home when
he was afraid to return to school due to his classmates' taunting. Because he
could not understand the duties of the jobs given him, he failed to complete
vocational assignments; he sometimes lost his way to work. As Raymond was
unable to pass any of the State's functional tests required for graduation, he
received only a certificate of attendance rather than a high-school diploma.
In
November or December 1990, a friend introduced Raymond to Erica Frazier, then
aged 13; the two subsequently talked occasionally by telephone. On February 28,
1991, Raymond, apparently wishing to call for a ride home, approached the
girl's house at about nine o'clock in the evening. Erica opened her bedroom
window, through which Raymond entered; he testified that "she just told me
to get a ladder and climb up her window." The two talked, and later
engaged in sexual intercourse. Raymond left at about 4:30 a.m. the following
morning. On November 19, 1991, Erica gave birth to a baby, of which Raymond is
the biological father.
Raymond
was tried before the Circuit Court for Montgomery County (Miller, J.) on one
count of second degree rape under § 463(a)(3) proscribing sexual intercourse
between a person under 14 and another at least four years older than the
complainant. At trial, the defense twice proffered evidence to the effect that Erica
herself and her friends had previously told Raymond that she was 16 years old,
and that he had acted with that belief. The trial court excluded such evidence
as immaterial, explaining:
Under
463, the only two requirements as relate to this case are that there was
vaginal intercourse, [and] that ... Ms. Frazier was under 14 years of age and
that ... Mr. Garnett was at least four years older than she. In the Court's
opinion, consent is no defense to this charge. The victim's representation as
to her age and the defendant's belief, if it existed, that she was not under
age, what amounts to what otherwise might be termed a good faith defense, is in
fact no defense to what amount[s] to statutory rape. It is in the Court's
opinion a strict liability offense.
The court
found Raymond guilty. It sentenced him to a term of five years in prison,
suspended the sentence and imposed five years of probation, and ordered that he
pay restitution to Erica and the Frazier family. Raymond noted an appeal; we
granted certiorari prior to intermediate appellate review by the Court of
Special Appeals to consider the important issue presented in the case.
Opinion
Maryland's
"statutory rape" law prohibiting sexual intercourse with an underage
person is codified in Maryland Code (1957, 1992 Repl.Vol.) Art. 27, § 463,
which reads in full:
"Second
degree rape.
(a) What
constitutes.--A person is guilty of rape in the second degree if the person
engages in vaginal intercourse with another person:
(1) By
force or threat of force against the will and without the consent of the other
person; or
(2) Who
is mentally defective, mentally incapacitated, or physically helpless, and the
person performing the act knows or should reasonably know the other person is
mentally defective, mentally incapacitated, or physically helpless; or
(3) Who
is under 14 years of age and the person performing the act is at least four
years older than the victim.
(b)
Penalty.--Any person violating the provisions of this section is guilty of a
felony and upon conviction is subject to imprisonment for a period of not more
than 20 years."
…Now we
consider whether under the present statute, the State must prove that a
defendant knew the complaining witness was younger than 14 and, in a related
question, whether it was error at trial to exclude evidence that he had been
told, and believed, that she was 16 years old….
Section
463(a)(3) does not expressly set forth a requirement that the accused have
acted with a criminal state of mind, or mens rea. The State insists that the
statute, by design, defines a strict liability offense, and that its essential
elements were met in the instant case when Raymond, age 20, engaged in vaginal
intercourse with Erica, a girl under 14 and more than 4 years his junior.
Raymond replies that the criminal law exists to assess and punish morally
culpable behavior. He says such culpability was absent here. He asks us either
to engraft onto subsection (a)(3) an implicit mens rea requirement, or to
recognize an affirmative defense of reasonable mistake as to the complainant's
age. Raymond argues that it is unjust, under the circumstances of this case
which led him to think his conduct lawful, to brand him a felon and rapist.
Raymond
asserts that the events of this case were inconsistent with the criminal sexual
exploitation of a minor by an adult. As earlier observed, Raymond entered
Erica's bedroom at the girl's invitation; she directed him to use a ladder to
reach her window. They engaged voluntarily in sexual intercourse. They remained
together in the room for more than seven hours before Raymond departed at dawn.
With an I.Q. of 52, Raymond functioned at approximately the same level as the
13-year-old Erica; he was mentally an adolescent in an adult's body. Arguably,
had Raymond's chronological age, 20, matched his socio-intellectual age, about
12, he and Erica would have fallen well within the four-year age difference
obviating a violation of the statute, and Raymond would not have been charged
with any crime at all.
The
precise legal issue here rests on Raymond's unsuccessful efforts to introduce
into evidence testimony that Erica and her friends had told him she was 16
years old, the age of consent to sexual relations, and that he believed them.
Thus the trial court did not permit him to raise a defense of reasonable
mistake of Erica's age, by which defense Raymond would have asserted that he
acted innocently without a criminal design. At common law, a crime occurred
only upon the concurrence of an individual's act and his guilty state of mind.
In this regard, it is well understood that generally there are two components
of every crime, the actus reus or guilty act and the mens rea or the guilty
mind or mental state accompanying a forbidden act. The requirement that an
accused have acted with a culpable mental state is an axiom of criminal
jurisprudence….
To be
sure, legislative bodies since the mid-19th century have created strict
liability criminal offenses requiring no mens rea. Almost all such statutes
responded to the demands of public health and welfare arising from the
complexities of society after the Industrial Revolution. Typically misdemeanors
involving only fines or other light penalties, these strict liability laws
regulated food, milk, liquor, medicines and drugs, securities, motor vehicles
and traffic, the labeling of goods for sale, and the like. See Richard G.
Singer, The Resurgence of Mens Rea: III--The Rise and Fall of Strict Criminal
Liability, 30 B.C.L.Rev. 337, 340-373 (1989) (suggesting, however, that strict
liability doctrine in the United States in the late 19th century was motivated
largely by moralistic fervor, such as found in the prohibitionist movement).
Statutory rape, carrying the stigma of felony as well as a potential sentence
of 20 years in prison, contrasts markedly with the other strict liability
regulatory offenses and their light penalties.
Modern
scholars generally reject the concept of strict criminal liability…. Conscious
of the disfavor in which strict criminal liability resides, the Model Penal
Code states generally as a minimum requirement of culpability that a person is
not guilty of a criminal offense unless he acts purposely, knowingly,
recklessly, or negligently, i.e., with some degree of mens rea. The Code allows
generally for a defense of ignorance or mistake of fact negating mens rea. The
Model Penal Code generally recognizes strict liability for offenses deemed
"violations," defined as wrongs subject only to a fine, forfeiture,
or other civil penalty upon conviction, and not giving rise to any legal disability.
With
respect to the law of statutory rape, the Model Penal Code strikes a compromise
with its general policy against strict liability crimes. The Code prohibits the
defense of ignorance or a reasonable mistake of age when the victim is below
the age of ten, but allows it when the critical age stipulated in the offense
is higher than ten. Model Penal Code, supra, at §§ 213.1, 213.6(1). The
drafters of the Code implicitly concede that sexual conduct with a child of
such extreme youth would, at the very least, spring from a criminally negligent
state of mind. The available defense of reasonable mistake of age for
complainants older than ten requires that the defendant not have acted out of
criminal negligence.
The
commentators similarly disapprove of statutory rape as a strict liability
crime. In addition to the arguments discussed above, they observe that
statutory rape prosecutions often proceed even when the defendant's judgment as
to the age of the complainant is warranted by her appearance, her sexual
sophistication, her verbal misrepresentations, and the defendant's careful
attempts to ascertain her true age. Voluntary intercourse with a sexually
mature teen-ager lacks the features of psychic abnormality, exploitation, or
physical danger that accompanies such conduct with children.
Two
sub-parts of the rationale underlying strict criminal liability require further
analysis at this point. Statutory rape laws are often justified on the
"lesser legal wrong" theory or the "moral wrong" theory; by
such reasoning, the defendant acting without mens rea nonetheless deserves
punishment for having committed a lesser crime, fornication, or for having
violated moral teachings that prohibit sex outside of marriage. Maryland has no
law against fornication. It is not a crime in this state. Moreover, the
criminalization of an act, performed without a guilty mind, deemed immoral by
some members of the community rests uneasily on subjective and shifting norms.
"[D]etermining precisely what the 'community ethic' actually is [is] not
an easy task in a heterogeneous society in which our public pronouncements
about morality often are not synonymous with our private conduct."…
We
acknowledge here that it is uncertain to what extent Raymond's intellectual and
social retardation may have impaired his ability to comprehend imperatives of
sexual morality in any case.
The
legislatures of 17 states have enacted laws permitting a mistake of age defense
in some form in cases of sexual offenses with underage persons…. In the landmark
case of People v. Hernandez, 61 Cal.2d 529, 39 Cal.Rptr. 361, 393 P.2d
673 (1964), the California Supreme Court held that, absent a legislative
directive to the contrary, a charge of statutory rape was defensible wherein a
criminal intent was lacking; it reversed the trial court's refusal to permit
the defendant to present evidence of his good faith, reasonable belief that the
complaining witness had reached the age of consent. In so doing, the court
first questioned the assumption that age alone confers a sophistication
sufficient to create legitimate consent to sexual relations: "the sexually
experienced 15-year-old may be far more acutely aware of the implications of
sexual intercourse than her sheltered cousin who is beyond the age of consent."
The court then rejected the traditional view that those who engage in sex with
young persons do so at their peril, assuming the risk that their partners are
underage:
"[I]f
[the perpetrator] participates in a mutual act of sexual intercourse, believing
his partner to be beyond the age of consent, with reasonable grounds for such
belief, where is his criminal intent? In such circumstances he has not
consciously taken any risk. Instead he has subjectively eliminated the risk by
satisfying himself on reasonable evidence that the crime cannot be committed.
If it occurs that he has been mislead, we cannot realistically conclude for
such reason alone the intent with which he undertook the act suddenly becomes
more heinous.... The courts have uniformly failed to satisfactorily explain the
nature of the criminal intent present in the mind of one who in good faith
believes he has obtained a lawful consent before engaging in the prohibited
act."
The
Supreme Court of Alaska has held that a charge of statutory rape is legally
unsupportable unless a defense of reasonable mistake of age is allowed. State
v. Guest, 583 P.2d 836, 838-839 (Alaska 1978). The Supreme Court of Utah
construed the applicable unlawful sexual intercourse statute to mean that a
conviction could not result unless the state proved a criminal state of mind as
to each element of the offense, including the victim's age. State v. Elton, 680
P.2d 727, 729 (Utah 1984) (Utah Criminal Code since amended to disallow mistake
of age as a defense to unlawful sexual intercourse). [FN6] The Supreme Court of
New Mexico determined that a defendant should have been permitted at trial to
present a defense that his partner in consensual sex told him she was 17, not
15, that this had been confirmed to him by others, and that he had acted under
that mistaken belief. Perez v. State, 111 N.M. 160, 803 P.2d 249, 250-251
(1990). Two-fifths of the states, therefore, now recognize the defense in cases
of statutory sexual offenses.
We think
it sufficiently clear, however, that Maryland's second degree rape statute
defines a strict liability offense that does not require the State to prove
mens rea; it makes no allowance for a mistake-of- age defense. The plain
language of § 463, viewed in its entirety, and the legislative history of its creation
lead to this conclusion….
Section
463(a)(3) prohibiting sexual intercourse with underage persons makes no
reference to the actor's knowledge, belief, or other state of mind. As we see
it, this silence as to mens rea results from legislative design. First,
subsection (a)(3) stands in stark contrast to the provision immediately before
it, subsection (a)(2) prohibiting vaginal intercourse with incapacitated or
helpless persons. In subsection (a)(2), the Legislature expressly provided as
an element of the offense that "the person performing the act knows or
should reasonably know the other person is mentally defective, mentally
incapacitated, or physically helpless." Code, § 463(a)(2) (emphasis
added). In drafting this subsection, the Legislature showed itself perfectly
capable of recognizing and allowing for a defense that obviates criminal
intent; if the defendant objectively did not understand that the sex partner
was impaired, there is no crime. That it chose not to include similar language
in subsection (a)(3) indicates that the Legislature aimed to make statutory
rape with underage persons a more severe prohibition based on strict criminal
liability.
Second,
an examination of the drafting history of § 463 during the 1976 revision of
Maryland's sexual offense laws reveals that the statute was viewed as one of
strict liability from its inception and throughout the amendment process. As
originally proposed, Senate Bill 358 defined as a sexual offense in the first
degree a sex act committed with a person less than 14 years old by an actor
four or more years older. The Senate Judicial Proceedings Committee then
offered a series of amendments to the bill. Among them, Amendment # 13 reduced
the stipulated age of the victim from less than 14 to 12 or less. Amendment #
16 then added a provision defining a sexual offense in the second degree as a
sex act with another "under 14 years of age, which age the person
performing the sexual act knows or should know." These initial amendments
suggest that, at the very earliest stages of the bill's life, the Legislature
distinguished between some form of strict criminal liability, applicable to
offenses where the victim was age 12 or under, and a lesser offense with a mens
rea requirement when the victim was between the ages of 12 and 14.
Senate
Bill 358 in its amended form was passed by the Senate on March 11, 1976. 1976
Senate Journal, at 1566. The House of Delegates' Judiciary Committee, however,
then proposed changes of its own. It rejected the Senate amendments, and defined
an offense of rape, without a mens rea requirement, for sexual acts performed
with someone under the age of 14. The Senate concurred in the House amendments
and S.B. 358 became law. Thus the Legislature explicitly raised, considered,
and then explicitly jettisoned any notion of a mens rea element with respect to
the complainant's age in enacting the law that formed the basis of current §
463(a)(3). In the light of such legislative action, we must inevitably conclude
that the current law imposes strict liability on its violators.
This
interpretation is consistent with the traditional view of statutory rape as a
strict liability crime designed to protect young persons from the dangers of
sexual exploitation by adults, loss of chastity, physical injury, and, in the
case of girls, pregnancy. The majority of states retain statutes which impose
strict liability for sexual acts with underage complainants. We observe again,
as earlier, that even among those states providing for a mistake-of-age defense
in some instances, the defense often is not available where the sex partner is
14 years old or less; the complaining witness in the instant case was only 13.
The majority of appellate courts, including the Court of Special Appeals, have
held statutory rape to be a strict liability crime.
Maryland's
second degree rape statute is by nature a creature of legislation. Any new
provision introducing an element of mens rea, or permitting a defense of
reasonable mistake of age, with respect to the offense of sexual intercourse
with a person less than 14, should properly result from an act of the
Legislature itself, rather than judicial fiat. Until then, defendants in
extraordinary cases, like Raymond, will rely upon the tempering discretion of
the trial court at sentencing.
JUDGMENT AFFIRMED, WITH COSTS.
Dissent
ROBERT M. BELL, J.
…I do not
dispute that the legislative history of Maryland Code (1957, 1992 Repl.Vol.),
Art. 27, section 463 may be read to support the majority's interpretation that
subsection (a)(3) [FN1] was intended to be a strict liability statute. See
majority opinion at 804. Nor do I disagree that it is in the public interest to
protect the sexually naive child from the adverse physical, emotional, or
psychological effects of sexual relations. I do not believe, however, that the
General Assembly, in every case, whatever the nature of the crime and no matter
how harsh the potential penalty, can subject a defendant to strict criminal
liability. To hold, as a matter of law, that section 463(a)(3) does not require
the State to prove that a defendant possessed the necessary mental state to
commit the crime, i.e. knowingly engaged in sexual relations with a female
under 14, or that the defendant may not litigate that issue in defense,
"offends a principle of justice so rooted in the traditions of conscience
of our people as to be ranked as fundamental" and is, therefore,
inconsistent with due process.
In…[this]
case…, according to the defendant, he intended to have sex with a 16, not a 13,
year old girl. This mistake of fact was prompted, he said, by the prosecutrix
herself; she and her friends told him that she was 16 years old. Because he was
mistaken as to the prosecutrix's age, he submits, he is certainly less culpable
than the person who knows that the minor is 13 years old, but nonetheless
engages in sexual relations with her. Notwithstanding, the majority has
construed section 463(a)(3) to exclude any proof of knowledge or intent. But
for that construction, the proffered defense would be viable. I would hold that
the State is not relieved of its burden to prove the defendant's intent or
knowledge in a statutory rape case and, therefore, that the defendant may
defend on the basis that he was mistaken as to the age of the prosecutrix.
Generally, a culpable mental state, often referred to as mens rea, or intent,
is, and long has been, an essential element of a criminal offense. A crime
ordinarily consists of prohibited conduct and a culpable mental state; a
wrongful act and a wrongful intent must concur to constitute what the law deems
a crime, the purpose being to avoid criminal liability for innocent or
inadvertent conduct. Historically, therefore, unless the actor also harbored an
evil, or otherwise culpable, mind, he or she was not guilty of any crime.
The
Supreme Court in Morissette, recognized that ordinarily, a defendant cannot be
convicted when he or she lacks the mental state which is an element of the
offense charged. That concept--crime as a compound concept--gained early
acceptance in the English Common law and "took deep and early root in
American soil." In that case, Mr. Justice Jackson stated the proposition
thusly:
The
contention that an injury can amount to a crime only when inflicted by
intention is no provincial or transient notion. It is as universal and
persistent in mature systems of law as belief in freedom of the human will and
a consequent ability and duty of the normal individual to choose between good
and evil. A relation between some mental element and punishment for a harmful
act is almost as instinctive as the child's familiar exculpatory "But I
didn't mean to," and has afforded the rational basis for a tardy and
unfinished substitution of deterrence and reformation in place of retaliation
and vengeance as the motivation for public prosecution. Unqualified acceptance
of this doctrine by English common law in the Eighteenth Century was indicated
by Blackstone's sweeping statement that to constitute any crime there must
first be a "vicious will."
…More
recently, in Anderson v. State, 328 Md. 426, 444, 614 A.2d 963, 972
(1992), we held that the trial court improperly convicted the defendant for
carrying concealed, a utility knife without considering the intent with which
the utility knife was being carried. Noting that the utility knife could be
used both as a tool and as a weapon, we rejected the State's argument that no
intent was required. We said instead that, when the object is not a dangerous
weapon per se, to convict a defendant of carrying a concealed dangerous weapon
requires proof that the defendant intended to use the object as a weapon.
Although
it recognized that Congress could dispense with the intent requirement if it
did so specifically, the Court made clear that that power was not without
limit. Thus, when a legislature wants to eliminate intent as an element of a
particular crime, it should expressly so state in the statute. Legislative
imposition of strict criminal liability, however, must be within constitutional
limits; it cannot be permitted to violate the Due Process requirement of the
Fourteenth Amendment, or a comparable state constitutional provision.
Strict
liability crimes are recognized exceptions to the "guilty mind" rule
in that they do not require the actor to possess a guilty mind, or the mens
rea, to commit a crime. His or her state of mind being irrelevant, the actor is
guilty of the crime at the moment that he or she does the prohibited act.
In the
evolution of the statutory criminal law, two classes of strict liability crimes
have emerged. One of them consists of "public welfare" offenses.
Typical of this class are statutes involving, for example, the sale of food,
drugs, liquor, and traffic offenses, designed to protect the health, safety,
and welfare of the community at large; violation of such statutes "depend
on no mental element but consist[s] only of forbidden acts or omissions."
In the case of public welfare offenses, strict liability is justified on
several bases, including: (1) only strict liability can deter profit-driven
manufacturers from ignoring the well-being of the consuming public; (2) an
inquiry into mens rea would exhaust the resources of the courts; (3) imposition
of strict liability is not inconsistent with the moral underpinnings of the
criminal law because the penalties are small and carry no stigma; and (4) the
legislature is constitutionally empowered to create strict liability crimes for
public welfare offenses….
The second class of strict
liability offenses, having a different justification than public welfare
offenses, consists of narcotic, bigamy, adultery, and statutory rape crimes.
State legislatures have historically used two theories to justify imposing
strict liability in this class of offense: "lesser legal wrong" and
"moral wrong." The lesser legal wrong theory posits that a defendant
who actually intended to do some legal or moral wrong is guilty not only of the
crime intended but of a greater crime of which he or she may not have the
requisite mental state….
A
man who engages in consensual intercourse in the reasonable belief that his
partner has reached [the age of consent] evidences no abnormality, no
willingness to take advantage of immaturity, no propensity to corruption of
minors. In short, he has demonstrated neither intent nor inclination to violate
any of the interests that the law of statutory rape seeks to protect. At most,
he has disregarded religious precept or social convention. In terms of mental
culpability, his conduct is indistinguishable from that of any other person who
engages in fornication. Whether he should be punished at all depends on a
judgment about continuing fornication as a criminal offense, but at least he
should not be subject to felony sanctions for statutory rape.
In
utilizing the moral wrong theory, State legislatures seek to justify strict criminal
liability for statutory rape when non-marital sexual intercourse is not a crime
[Fornication is not a crime in Maryland.] on the basis of society's
characterization of it as immoral or wrong, i.e., malum in se. The intent to
commit such immoral acts supplies the mens rea for the related, but unintended
crime; the outrage upon public decency or good morals, not conduct that is
wrong only because it is prohibited by legislation, i.e., malum prohibitum, is
the predicate.
There are
significant problems with the moral wrong theory. First, it is questionable
whether morality should be the basis for legislation or interpretation of the
law. Immorality is not synonymous with illegality; intent to do an immoral act
does not equate to intent to do a criminal act. Inferring criminal intent from
immorality, especially when the accused is not even aware that the act is
criminal, seems unjustifiable and unfair. In addition, the values and morals of
society are ever evolving. Because sexual intercourse between consenting
unmarried adults and minors who have reached the age of consent is not now
clearly considered to be immoral, the moral wrong theory does not support
strict criminal liability for statutory rape.
Second,
classifying an act as immoral, in and of itself, divorced from any
consideration of the actor's intention, is contrary to the general consensus of
what makes an act moral or immoral. Ordinarily, an act is either moral or
immoral depending on the intention of the actor. Holmes, Early Forms of Liability,
in The Common Law 7 ("Even a dog distinguishes between being stumbled over
and being kicked.").
Third,
the assertion that the act alone will suffice for liability without the
necessity of proving criminal intent is contrary to the traditional demand of the
criminal law that only the act plus criminal intent is sufficient to constitute
a crime. "Moral duties should not be identified with criminal
duties," and, thus, when fornication is itself not criminal it should not
become criminal merely because the defendant has made a reasonable mistake
about the age of the girl with whom he has had intercourse.
Therefore,
although in the case sub judice, the defendant engaged in sexual relations with
a girl 13 years old, a minor below the age of consent, his conduct is not malum
in se, and, so, strict liability is not justified.
Generally,
a mistake of fact negates the mental state required to establish a material
element of the crime. A person who engages in proscribed conduct is relieved of
criminal liability if, because of ignorance or mistake of fact, he or she did
not entertain the culpable mental state required for the commission of the
offense.
Statutory
rape is defined as sexual intercourse, by a person four or more years older,
with a person under the age of 14. That statute conclusively presumes that a
person under that age is incapable of legally consenting to sexual intercourse.
That the female is incapable of consenting means that any act of intercourse in
which she engages, even with her consent, is conclusively presumed to have been
against her will. Consequently, a person engaging in intercourse with a female,
whom he knows to be under 14 may not set up her consent as a defense. This does
not mean, however, that one who does not know that the female is under 14
should not be able to set up his mistake of fact as a defense. This is because
the closer a minor is to the age of consent, the more the appearance and
behavior of that minor can be expected to be consistent with persons who have
attained the age of consent. Indeed, one may plausibly mistake a minor 13 years
old as being of the statutory age of consent.
The
inadequacy of age as a demarcation line actually points up the flaws in the
strict criminal liability analysis. First, it would seem reasonable to allow
the accused to introduce evidence of the minor's maturity, sophistication, and
past sexual experience, since maturity, not age, is the chief concern, age
being but a factor. Second, the age standard (unless it is low enough) with its
universal application draws an arbitrary line, resulting in the imposition of
disproportionate penalties. Thus, for example, pursuant to section 463(a)(3)
sexual intercourse with a person under 14 years of age, if the actor is at
least four years older than the victim, is a second degree rape offense
punishable by a possible twenty years imprisonment. Under section 464C,
defining a fourth degree sexual offense, the same conduct if committed with a
child 14 or 15 is punishable by a possible 1 year sentence. Thus, the law
creates a potential disparity of up to 19 years for a difference of as little
as one day in the victim's age. Third, placing the age standard too high may
result in the anomaly of a female being legally able to consent to marriage,
but unable to consent to intercourse.
A
girl 13 years old may appear to be, and, in fact, may represent herself as
being, over 16. If she should appear to be the age represented, a defendant may
suppose reasonably that he received a valid consent from his partner, whom he mistakenly
believes to be of legal age, only to find that her consent is legally invalid.
In this situation, the majority holds, his reasonable belief as to the girl's
age and consequent lack of criminal intent are no defense; the act alone
suffices to establish guilt. But it is when the minor plausibly may represent
that she has attained the age of consent that need for a defendant to be able
to present a defense based on his or her belief that the minor was of the age
to consent is the greatest….
Thus, it has
been observed that, "by the middle teens most girls have reached a point
of maturity which realistically enables them to give meaningful, although not
legal, consent." It is for this reason that "intercourse with a girl
who is in her middle to late teens lacks the qualities of abnormality and
physical danger that are present when she is still a child.... It is clear that
the element of 'victimization' decreases as the girl grows older and more
sophisticated."…
In
[this] case… the defendant does not dispute that he had sexual relations with
the 13 year old prosecutrix. He seeks only to be able to defend himself against
being labeled a rapist. He may only do so, however, if he is allowed to present
evidence that he acted under a mistake of fact as to the prosecutrix's age,
that he believed, and reasonably so, that she was above the age of consent. The
proof he proposed to present to prove his defense was that the victim and her
friends told him that the victim was 16 years old. He should have been allowed to
show that he lacked the "guilty mind" to have sex with a 13 year old.
A State
Legislature does have the power to define the elements of the criminal offenses
recognized within its jurisdiction. In fact, the Supreme Court has said:
"There is wide latitude in lawmakers to declare an offense and to exclude
elements of knowledge and diligence from its definition." Accordingly, a
State legislature may constitutionally prescribe strict liability for public
welfare offenses, discussed supra, committed within its boundaries. But
"far more than the simple omission of the appropriate phrase from the
statutory definition is necessary to justify dispensing with an intent
requirement."
To
recognize that a State legislature may, in defining criminal offenses, exclude
mens rea, is not to suggest that it may do so with absolute impunity, without
any limitation whatsoever. The validity of such a statute necessarily will
depend on whether it violates any provision of the federal constitution. It is
ordinarily the due process clause, either of the federal constitution, or the
corresponding provision of the appropriate state constitution, which will
determine its validity.
The
phrase "Law of the land" has been held to be equivalent to "due
process" of the law, as used in the 14th Amendment to the United States
Constitution. In that regard, therefore, Supreme Court cases on that subject
are practically direct authority for the meaning of the Maryland provision. The
essential elements of due process as it relates to a judicial proceeding are
notice and opportunity to defend.
Due
process, whether pursuant to that clause of the Fourteenth Amendment or the
corresponding clause in a state constitution, protects an accused from being
convicted of a crime except upon proof beyond a reasonable doubt of every
element necessary to constitute the crime with which the accused is charged. It
thus implicates the basic characteristics, if not the fundamental
underpinnings, of the accusatorial system.
Under
our system of justice, a person charged with a crime is presumed innocent until
he or she is found guilty beyond a reasonable doubt. That means that he or she
may not be found guilty until the State has produced evidence sufficient to
convince the trier of fact, to the required extent, of that person's guilt.
Moreover, although not required to do so, the defendant may present a defense,
in which event the evidence the defendant produces must be assessed along with
that of the State in determining whether the State has met its burden. The State's
burden is not reduced or changed in any way simply because the defendant elects
not to interpose a defense. In those cases, the defendant may still seek to
convince the trier of fact that the State has not met its burden of proof by
arguing that the inferences to be drawn from the evidence the State has
produced simply is not sufficient to support guilt….
The
prosecution of statutory rape in Maryland necessarily brings into conflict the
State's interests in protecting minors and defendants' due process rights
because section 463(a)(3) operates " 'to exclude elements of knowledge and
diligence from its definition,' " and, thus, removes reasonable ignorance
of the girl's age and consequent lack of criminal intent as a defense. The
failure of section 463(a)(3) to require proof of a culpable mental state
conflicts both with the substantive due process ideal requiring that defendants
possess some level of fault for a criminal conviction of statutory rape and the
procedural due process ideal requiring that the prosecution overcome the
presumption of innocence by proof of the defendant's guilt beyond a reasonable
doubt. Notwithstanding the maxim that criminal statutes dispensing with the
intent requirement and criminal offenses requiring no mens rea have a "generally
disfavored status," the rationale of parts V and VI of the majority
opinion is that the legislature has absolute authority to create strict
liability crimes. For the reasons reviewed, I do not agree. On the contrary, I
believe that due process both under the Fourteenth Amendment and under the
Declaration of Rights, precludes strict criminal liability for statutory rape.
Interpreting section 463(a)(3) as the majority does has the effect of largely
relieving the State of its burden of proof and burden of persuasion. By making
the defendant's intent, and, hence, blameworthiness, irrelevant, the
Legislature has made inevitable, the petitioner's conviction. Moreover, upon
conviction of the felony offense of statutory rape under section 463(a)(3), in
addition to a substantial penalty of up to 20 years imprisonment, a defendant's
reputation will be gravely besmirched. Where there is no issue as to sexual
contact, which is more likely than not to be the case in statutory rape
prosecutions, proof of the prosecutrix's age is not only proof of the
defendant's guilt, it is absolutely dispositive of it and, at the same time, it
is fatal to the only defense the defendant would otherwise have. So
interpreted, section 463(a)(3) not only destroys absolutely the concept of
fault, but it renders meaningless, in the statutory rape context, the
presumption of innocence and the right to due process.
I respectfully dissent.