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2024 Mistake of Age Law: Defense for Statutory Rape?

A mistake of age defense is a legal argument used in cases where a person is accused of engaging in a sexual act with a minor. The defense asserts that the accused reasonably believed that the minor was of legal age to consent to the sexual act due to a mistake about the minor’s age.
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Mistake of Age Defense Explained

According to the SCLG, the mistake of age defense in statutory rape cases involves asserting a reasonable belief that the alleged victim was above the age of consent at the time of the offense [1]. It’s important to note that not all states recognize this defense.

The Model Penal Code recommends a middle-ground between these extremes. It recommends allowing mistake of age to be an affirmative defense for cases involving children over the age of 10 – SCLG stated.

This defense falls under the umbrella of the mistake of fact defense, which argues that the defendant could not have formed the necessary criminal intent, or mens rea, to commit the crime.

The California Supreme Court was the first to recognize a reasonable mistake of age as a defense to a statutory rape charge in 1964. Some states have since recognized this defense through common law or by enacting statutes.

However, many states still do not recognize a good faith belief in the alleged victim’s age as a defense to statutory rape charges. In these states, statutory rape is considered a strict liability offense, where the defendant’s intent is not a factor. The only consideration is whether the alleged victim was actually underage.

What is Statutory Rape?

According to Long & Simmons, statutory rape is a term used to describe sexual activity with a minor who is under 18 but older than 15 years old [2]. It encompasses various forms of unlawful sexual contact, including oral sexual contact, digital penetration, sexual intercourse, or masturbatory conduct, with anyone under 18.

The significant difference between sexual conduct with a minor (statutory rape) and sexual assault (rape) is that consent has no bearing when it includes minors. The victim is not considered at the legal age to consent to any sexual activity regardless of whether they were willing participants. There is also a significant difference in sexual conduct with a minor who is under 15 years old and sexual conduct with a minor over 15 years old.

If the minor is under 15, there is no defense even if the perpetrator believed the individual was over 18. However, if the minor is over 15 years old, it can be a defense if the perpetrator believes the minor is over 18.

Mistake of Age Defense As Used in Statutory Rape Cases

A Mistake of Age defense can be asserted in cases of statutory sexual assault. This defense hinges on the belief that the accused reasonably thought the minor was of legal age to consent to the sexual act.

The critical age in statutory sexual assault statutes is often tied to the age of the defendant. For instance, a 21-year-old defendant’s critical age might be 16, while an 18-year-old defendant’s critical age might be 15. In both cases, if the defendant had sexual contact with someone below the critical age, they would be violating the statute.

However, they could raise a Mistake of Age defense if they reasonably believed the minor was above the critical age, which is 14 years in these examples.

To prevail on a mistake of age defense, the defendant must prove that he or she reasonably believed the alleged victim was above the critical age by what is known as a preponderance of the evidence. Unlike the beyond a reasonable doubt standard which is the highest burden of proof in the criminal justice system, the preponderance of the evidence standard is much less stringent.

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