Posted by Eugene Volokh:
Strict Liability, Constitutional Rights, Guns, Speech, Abortion, and Underage
Sex:
http://volokh.com/archives/archive_2008_08_10-2008_08_16.shtml#1218485530
My post about the [1]possible unconstitutionality of strict liability
gun control laws -- i.e., of laws that hold someone criminally liable
even if he's made an honest mistake (or perhaps even a reasonable
mistake) about some fact, such as whether he's a felon, whether the
gun is fully automatic, and the like -- reminds me of the broader
question of strict liability and constitutional rights. And this
question most clearly arises as to strict liability for sex with
people who are underage.
The Court has repeatedly held that strict criminal liability for
speech -- even constitutionally unprotected speech -- is
impermissible, and strict civil liability in such cases often is, too.
The [2]rationale is that strict liability for conduct tends to deter
not just the punished conduct (which by hypothesis should be
deterred), but also other conduct as to which the actor harbors some
fear that it might be punishable. Sometimes, that overdeterrence is
fine. But when the deterred other conduct is itself constitutionally
protected, such overdeterrence excessively burdens the constitutional
right.
Thus, strict liability for child pornography (imposed even if a
distributor or possessor doesn't know, and has no reason to know, that
the actor in a pornographic movie is under 18) would deter not only
distribution and possession of constitutionally unprotected child
pornography but even of constitutionally protected sexually themed
material that doesn't involve under-18-year-olds (since some people
would be afraid that they'd go to prison for years because an actor
who looks adult was actually underage). Likewise, strict liability for
possession of fully automatic guns (cf. the Washington case, mentioned
[3]here) would deter not only constitutionally unprotected possession
of full automatics, but also constitutionally protected possession of
semiautomatics, if someone fears that the semiautomatic might have
been modified to function as a full automatic (or might function that
way because of some defect). And strict liability for [4]abortions
performed on minors without the parent's permission (even when the
minor shows a forged parental consent form, or brings along someone
whom she falsely describes as her parent) would unacceptably deter not
only constitutionally unprotected abortions without parental consent,
but also constitutionally protected abortions with parental consent,
if the doctor fears that any abortion on a minor will possibly expose
him to liability.
What then about strict liability for sex with people under age 18,
which some states still maintain? Consider this comparison chart:
graphically:
Constitutionally unprotected conduct Constitutionally protected
conduct Result
Child pornography constitutionally unprotected: People who make,
distribute, and possess movies that contain minors in sexual
situations may be punished. New York v. Ferber. Other speech
constitutionally protected: If the actors and actresses are 18 or
older, the movie is protected (unless it fits within the obscenity
exception). It's unconstitutional to hold people strictly liable for
reasonable mistakes of fact about the actors' or actresses' ages -- "I
reasonably thought she was 18" is a good defense. Ferber.
Machinegun possession constitutionally unprotected. D.C. v. Heller
Non-machinegun possession constitutionally protected. It may well be
unconstitutional to hold people strictly liable for machinegun
possession, even when they've made a mistake (or perhaps just when
they've made a reasonable mistake) as to whether the gun is a
machinegun.
Abortions performed without parental consent (or judicial bypass) on
minors constitutionally unprotected. Abortions performed with parental
consent on minors constitutionally protected. It's unconstitutional
(according to a state court of appeals decision) to hold people
strictly liable for performing an abortion on a minor without the
parent's consent, even when they've made a mistake (or perhaps just
when they've made a reasonable mistake) as to whether the consent was
given, or whether the person was a minor.
Sex with minors constitutionally unprotected. Sex with consenting
adults protected. Lawrence v. Texas. Shouldn't it be unconstitutional
to hold people strictly liable for reasonable mistakes of fact about
their partners' ages? Shouldn't "I reasonably thought she was 18" must
be a good defense, as it is when one is tried for distributing or
possessing child pornography, or as it is when one is tried for
performing an illegal abortion, or as it likely would be (changing the
facts appropriately) when one is tried for illegally possessing a
weapon.
What are the possible distinctions here? One is that there's no
right, under Lawrence, to have sex with minors -- but for reasons I
mention, that doesn't distinguish the free speech cases, which
likewise bar strict liability even for constitutionally unprotected
behavior, because such liability may deter protected behavior.
A second distinction -- that preventing statutory rape is just very
important -- also fails. Preventing child pornography involving
minors is also very important, but the Court has held that the
government must fight that by punishing knowing, reckless, or
possibly negligent use of minors; the government may not serve even
this very important interest by punishing people who reasonably
believed that the person was 18.
Another is a factual distinction: In practice, one might say, very
few people will be deterred from having sex with 18-year-old girls
because they fear that she might be 17. But why? One might argue
that it's because sex is such a powerful force; but so is the
desire to make money from selling obscenity or child pornography,
for those who are in that business. One might also point out that
because statutory rape laws are notoriously underenforced, few
people will be much deterred by them; and maybe that's enough. But
that might be a hard theory for a court to accept -- a strict
liability statutory rape law is constitutional only because
everyone knows that.
Another is that figuring out the age of one's sexual partner is
much easier than figuring out the age of someone in a movie one is
distributing or watching. But it's actually not always that easy to
figure out a sexual partner's age if the sexual partner is lying
about it, for instance by showing a fake driver's license. And in
any case the ease of determining the facts in some cases counsels
in favor of negligence liability -- liability when a person knew or
reasonably should have known the sexual partner was underage --
rather than strict liability that would apply even if the person
acted perfectly reasonably.
There might be another theory -- Lawrence repeatedly talks about
the importance of sex to creating meaningful relationships. Maybe
this means that casual sex between relative strangers doesn't
really deserve constitutional protection; it's protected in
practice, because it's so hard to draw distinctions between
meaningless sex and meaningful sex, but courts shouldn't go out of
their way to protect it. And, the theory would go, generally people
who don't know how old their sexual partner is don't have a really
close relationship to that partner. Thus, strict liability for
statutory rape wouldn't really deter meaningful relationships, only
casual pick-ups. I don't think courts are likely to buy this,
though, because strict liability would end up punishing even
meaningful relationships (some girls might consistently lie about
their age, even to a serious lover), and because I think courts
will be reluctant to generalize about which relationships are
likely to be meaningful and which aren't.
Finally, some argue that Lawrence didn't really recognize a true
constitutional right to have sex with consenting adults, but just
struck down the law on rational basis grounds. I don't think that's
quite right, for reasons I mentioned [5]here, and some recent
decisions likewise take the view that [6]there's a right to sexual
autonomy that's similar in general force to rights to abortion,
free speech, and gun ownership. And beyond that, the court
decisions barring strict liability in other situation didn't rest
on applying strict scrutiny or heightened scrutiny or some such
test; they rested simply on the argument that strict scrutiny even
for unprotected conduct risks unduly deterring constitutionally
protected conduct. And following Lawrence, noncommercial sex with
an 18-year-old is indeed constitutionally protected conduct.
References
1. http://volokh.com/archives/archive_2008_08_10-2008_08_16.shtml#1218479907
2. http://volokh.com/2003_07_13_volokh_archive.html#105831708833642567
3. http://volokh.com/archives/archive_2008_08_10-2008_08_16.shtml#1218479907
4. http://volokh.com/2003_07_13_volokh_archive.html#105846137512097717
5. http://volokh.com/2003_07_13_volokh_archive.html#105846348887661956
6. http://volokh.com/posts/chain_1211387521.shtml
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