Robert Sheridan
[EMAIL PROTECTED]
> [Original Message]
> From: Robert Sheridan <[EMAIL PROTECTED]>
> To: Discussion list for con law professors
<[EMAIL PROTECTED]>
> Date: 7/15/2003 6:52:28 PM
> Subject: RE: Lawrence v. Texas and statutory rape
>
> Question: Now that the Court has held that the Constitution secures
> > a right to have sex with consenting adults, is it still constitutionally
> > permissible for states to make statutory rape a strict liability
offense as
> > to age?
>
> Ans: Not in California.
>
> People v. Hernandez (1964) [61 Cal.2d 529]
>
> Which holds that knowledge of minority is an element of mens rea, thus
must be proved by the prosecution. Lack of knowledge on the part of the
defendant, or an honest and good faith belief that the female is of age,
are thus defenses.
>
> Below is a bit of cut-and-paste from Hernandez setting forth the
rationales for the existence of the crime of stat-rape.
>
> The conlaw question is whether any of these are put in serious question
with the advent of Lawrence.
>
> ***
> "Consent of the female is often an unrealistic and unfortunate standard
for branding sexual intercourse a crime as serious as forcible rape. Yet
the consent standard has been deemed to be required by important policy
goals. We are dealing here, of course, with statutory rape where, in one
sense, the lack of consent of the female is not an element of the offense.
In a broader sense, however, the lack of consent is deemed to remain an
element but the law makes a conclusive presumption of the lack thereof
because she is presumed too innocent and naive to understand the
implications and nature of her act. (People v. Griffin, 117 Cal. 583, 585
[49 P. 711, 59 Am.St.Rep. 216]; Golden v. Commonwealth, 289 Ky. 379 [158
S.W.2d 967].) The law's concern with her capacity or lack thereof to so
understand is explained in part by a popular conception of the social,
moral and personal values which are preserved by the abstinence from sexual
indulgence on the part of a young woman. An unwise disposition of her
sexual favor is deemed to do harm both to herself and the social mores by
which the community's conduct patterns are established. Hence the law of
statutory rape intervenes in an effort to avoid such a disposition. This
goal, moreover, is not accomplished by penalizing the naive female but by
imposing criminal sanctions against the male, who is conclusively presumed
to be responsible for the occurrence. (See Elkins v. State, 167 Tenn. 546
[72 S.W.2d 550].)
>
> The assumption that age alone will bring an understanding of the sexual
act to a young woman is of doubtful validity. Both learning from the
cultural group to which she is a member and her actual sexual experiences
will determine her level of comprehension. 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. A
girl who belongs to a group whose members indulge in sexual intercourse at
an early age is likely to rapidly acquire an insight into the rewards and
penalties of sexual indulgence. Nevertheless, even in circumstances where a
girl's actual comprehension contradicts the law's presumption, the male is
deemed criminally responsible for the act, although himself young and naive
and responding to advances which may have been made to him. fn. 1 {Page 61
Cal.2d 532}
>
> The law as presently constituted does not concern itself with the
relative culpability of the male and female participants in the prohibited
sexual act. Even where the young woman is knowledgeable it does not impose
sanctions upon her. The knowledgeable young man, on the other hand, is
penalized and there are none who would claim that under any construction of
the law this should be otherwise. However, the issue raised by the rejected
offer of proof in the instant case goes to the culpability of the young man
who acts without knowledge that an essential factual element exists and
has, on the other hand, a positive, reasonable belief that it does not
exist.
>
> The primordial concept of mens rea, the guilty mind, expresses the
principle that it is not conduct alone but conduct accompanied by certain
specific mental states which concerns, or should concern, the law. In a
broad sense the concept may be said to relate to such important doctrines
as justification, excuse, mistake, necessity and mental capacity, but in
the final analysis it means simply that there must be a "joint operation of
act and intent," as expressed in section 20 of the Penal Code, to
constitute the commission of a criminal offense. The statutory law,
however, furnishes no assistance to the courts beyond that, and the
casebooks are filled to overflowing with the courts' struggles to determine
just what state of mind should be considered relevant in particular
contexts. In numerous instances culpability has been completely eliminated
as a necessary element of criminal conduct in spite of the admonition of
section 20 to the contrary. (See In re Marley, 29 Cal.2d 525 [175 P.2d 832]
(shortweight); People v. McClennegen, 195 Cal. 445 [234 P. 91] (membership
in organizations advocating criminal syndicalism); People v. McCalla 63
Cal.App. 783 [220 P. 436] (violation of Corporate Securities Act); People
v. Bickerstaff, 46 Cal.App. 764 [190 P. 656] (sale of liquor).) More
recently, however, {Page 61 Cal.2d 533}this court has moved away from the
imposition of criminal sanctions in the absence of culpability where the
governing statute, by implication or otherwise, expresses no legislative
intent or policy to be served by imposing strict liability. (People v.
Stuart, 47 Cal.2d 167 [302 P.2d 5, 55 A.L.R.2d 705]; People v. Vogel, 46
Cal.2d 798 [299 P.2d 850]; People v. Winston, 46 Cal.2d 151 [293 P.2d
40].)...
>
> ***
>
> I'm having a little trouble with the "too innocent and naive"
justification on the ground that it looks a bit like a stereotype to me.
>
> Note also, "An unwise disposition of her sexual favor is deemed to do
harm both to herself and the social mores by which the community's conduct
patterns are established."
>
> Here we have the legislature second-guessing the wisdom of the
disposition of sexual favor by a let's say, seventeen-year-old who may be
wiser in the ways of the world than a few of her older peers, as the
opinion allows is possible but of no matter.
>
> Is there a difference between the state legislature imposing moral
values, apparently not recognized in Lawrence, and doing "harm both to
herself and the social mores by which, etc..."? Which is it really, harm
to herself or to the social mores?
>
> Have there been any changes in the sophistication level of young women
since 1964? Aren't teenagers taught more about pregnancy and STD now in
school?
>
> I think it of the essence of conservatism to try to uphold existing
categories, while the liberal mind set is prepared to question them. I
don't know what the libertarians do.
>
> As a colleague argued today, re: Lawrence: If two homosexuals are
allowed to marry (some day, I guess), why not the members of a menage a
trois?
>
> The conservative mindset sees the worst case scenario, or the slippery
slope thereto, where others see one stepping stone at a time and maybe not
that.
>
>
> Robert Sheridan
> [EMAIL PROTECTED]
[I'd thought I'd sent this out the other day, but apparently didn't
somehow. It appears to be worth the effort in light of the continuing
question about strict liability in stat-rape law. Hernandez has been the
leading California case on the subject for a long time now. Hope this
helps.]
>
>
> > [Original Message]
> > From: Volokh, Eugene <[EMAIL PROTECTED]>
> > To: <[EMAIL PROTECTED]>
> > Date: 7/15/2003 5:52:30 PM
> > Subject: Lawrence v. Texas and statutory rape
> >
> > Question: Now that the Court has held that the Constitution
secures
> > a right to have sex with consenting adults, is it still constitutionally
> > permissible for states to make statutory rape a strict liability
offense as
> > to age?
> >
> > After all, even child pornography prosecutions require some
showing
> > of scienter, see New York v. Ferber, since the theory is that otherwise
the
> > strict liability ban on unprotected conduct may also deter protected
> > conduct. If "I reasonably believed she was 18" is a defense in a child
> > pornography case, why wouldn't it similarly be a defense in a statutory
rape
> > case?
> >
> > Eugene
