pageok
pageok
pageok
Strict Liability, Constitutional Rights, Guns, Speech, Abortion, and Underage Sex:

My post about the 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 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 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 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:

Constitutionally unprotected conductConstitutionally protected conductResult
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 [UPDATE: at least as to distribution or possession, the issues discussed in Ferber and later cases]. 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 here, and some recent decisions likewise take the view that 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.

easy V (mail):
Bring the goods Professor, hell yes!
8.11.2008 5:46pm
Jim at FSU (mail):

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.


May be? US v Staples settled this before Heller.
8.11.2008 5:48pm
Jim at FSU (mail):
511 US 600 (1994) Thomas for majority. Dissent also worth reading in light of the 5-4 Heller decision.

http://www.law.cornell.edu/supct/html/92-1441.ZO.html
8.11.2008 5:50pm
PatHMV (mail) (www):
On the free speech front, a strict liability requirement on child pornography would chill a great deal of legitimate speech. There's a lot of pictures of naked people out there, and it's not possible, from looking at a picture, to tell the difference between a 17 year old and an 18 year old. Having a strict liability standard for possession of child pornography would impermissibly chill, from a practical standpoint, large amounts of legitimate speech, because of the mass distribution of pornographic images.

That mass distribution aspect is not present with actual sexual encounters, which are perforce one-on-one (yeah, yeah, insert joke here, you get the point). It is entirely feasible for the older partner to ascertain the age of the younger partner in this one-on-one (or small group) encounter. The burden of strict liability would be quite small, unlike the widespread burden in the case of mass distribution of images or movies. Thus, there would be little chilling effect on constitutionally protected sexual encounters among adults.

The abortion example I discount because the Supreme Court's law in that area bears little resemblance to the rest of the law. Heller is so lacking in any details about the scope of the right that relying on it is entirely supposition on your part; it neither bolsters nor weakens your argument.
8.11.2008 5:53pm
PatHMV (mail) (www):
I do have a friend who once did actually "card" a girl before sleeping with her, just to be on the safe side... and yes, he's a successful lawyer now.
8.11.2008 5:56pm
Eugene Volokh (www):
Jim at FSU: Recall that Staples was a case about statutory interpretation, and didn't mention the Second Amendment even to suggest there might be a constitutional problem with strict liability. That's why I can only tentatively say, given the cases I cited, and given the analogies from other fields, that there may be a constitutional problem with such strict liability, rather than relying on Staples and Heller as dispositive.
8.11.2008 6:05pm
Eugene Volokh (www):
PatHMV: But was he successful with her?
8.11.2008 6:05pm
Alan Gunn (mail):
There is a considerable law-and-economics literature (mostly theoretical) on deterrence and the strict-liability vs. negligence question. It's far too complex an issue--calculus is a prerequisite--for presentation in a comment, but it may be worth noting that assuming that strict liability is always a stronger deterrent than liability based on negligence is not necessarily right. I don't know whether anyone has extended this analysis to constitutional law.

It has long struck me as odd that con law people tend to be uninterested in economics. The Coase theorem, to take but one example, could profitably be used in analyzing some church-state issues, for instance, but nobody has done it, so far as I know.
8.11.2008 6:10pm
Anderson (mail):
I wonder if the short answer isn't simply "tradition."

Courts disfavor strict liability for the reasons suggested by Prof. V. But (I suppose) strict liability for sex with the underaged is pretty well entrenched in the law.

I could see the courts deciding that they'll respect the tradition of strict liability for statutory rape, but won't easily expand the scope of strict liability.

That may not be a rational decision compared to Prof. V's logic above, but perhaps it's "meta-rational" -- deciding how to decide cases.
8.11.2008 6:15pm
Sarcastro (www):
[Alan Gunn:

Though some will disagree that the Court thinks this, the Constitution tends to be more about carving out certain methods the government may not use, regardless of the efficacy. Thus economics, which is all about the efficacy of various means, may not matter so much.

I think Anderson nails it, btw. Even though Prof. Volokh's paradigm is very pretty, and may thus be adopted by the court post hoc.]
8.11.2008 6:18pm
CJColucci:
When I took criminal law (back when all felonies were capital offenses:-)), we read a California case accepting a "I reasonably thought she was 18" defense in a case involving a tarted-up 17 year-old. Our professor suggested that, where states increased the penalties at age increments, the court would have been far less receptive to a "I reasonably thought she was 12" defense in a case involving a tarted-up 11 year-old.
8.11.2008 6:24pm
Jim at FSU (mail):
EV:

The court basically said that firearms possession is an inherently innocent act in the US so we will interpret there to always be a requirement for scienter where a particular type of firearm is subject to regulation. Any presumption of a protection for firearms possession you can get from Heller is pretty much already there.
8.11.2008 6:25pm
cjwynes (mail):
Wasn't there some famous case in the early 90's that said strict liability as to the age of actresses in pornographic films was OK? I think it had something to do with the fact that the "over-deterred" conduct, namely the production of pornography, was bad enough conduct that it was acceptable to shift that burden onto the pornographers.
8.11.2008 6:28pm
Ace:
The most egregious result in these cases: Garnett v. State, 332 Md. 571, 632 A.2d 797 (1993).


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 . . ."


So a girl, 16, lies to a retarded man, aged 20 but with the intelligence of a 12 year old, about her age - and HE is prosecuted for "violating" her. Conviction affirmed.
8.11.2008 6:30pm
Sk (mail):
You are discussing strict liability as it applies to self-understanding of felony. What about other circumstances?

I am from Wyoming. It has certain gun laws. I unknownlingly break the gun laws in Washington, D.C. (or Illinois, or whatever), which are more restrictive than those in Wyoming.

Since the laws involved are gun possession laws (i.e. laws regulated constitutionally protected behavior), can I claim innocence? I could reasonably assume I had the right to possess (or use) guns, as I could in Wyoming?

If not, why not? Does strict liability limit persecution of only those defendents that are ignorant of their felony status (but not non-felons who are ignorant of local variations of gun/speech/other constitutionally protected behavior laws, or of other variations that impact constitutionally-protected behavior)?

For that matter, what is the difference between a felon who didn't know he is a felon, and a gun owner who didn't know that semi-automatic, but not automatic, weapons (i.e. machine guns) are legal? In both instances, they are ignorant of a particular condition (self-status, particular quirk of the law, etc).

To quote a poster in the previous thread, is ignorance of the law now an excuse?

Sk
8.11.2008 6:51pm
Suzy (mail):
Pat's comment about the difference seems right to me. I also did not realize there was no strict liability requirement for those who MAKE pornography. I thought the idea in Ferber was that the depiction of children in such materials is intrinsically related to the sexual abuse of children. If you're violating statutory rape laws, then you are actually sexually abusing them.

Ace, the girl in the case you just quoted was 13, not 16. It was the defense's claim that she had been represented to be 16, and the court chose not to consider that evidence, for reasons that are not clear from what you quoted.
8.11.2008 6:56pm
Sk (mail):
Let me clarify my machine gun analogy. I am not repeating the situation in the initial post's table (I didn't know that what I have is a machine gun). I am asking a different error (I didn't know that machine guns were illegal).


Sk
8.11.2008 6:59pm
Seamus (mail):
I wonder if the short answer isn't simply "tradition."

I suspect the reason is that, not that long ago, sexual intercourse with any woman not your wife was (assuming you were a male) either adultery of fornication, both of which were illegal. Since you knew that what you were doing was illegal anyway, you assumed the risk that it might not only be the misdemeanor of adultery or fornication, but rather the felony of rape. If the strict liability rule had the effect of "over-deterring" any acts of sexual intercourse, the thought (I'm assuming) was, those weren't acts that society had any interest in encouraging. If you wanted a safe harbor to be able to copulate without fear of a felony prosecution, all you had to do was marry the girl.

To the extent that it is now believed that there is a fundamental constitutional right of sexual expression that extends to acts of adultery and fornication, the basis for strict liability for underage sex collapses.
8.11.2008 7:03pm
Thomas_Holsinger:
My recollection is that the statute at issue in Lawrence failed the unintentional humor test during oral argument.
8.11.2008 7:23pm
Fub:
Sk wrote at 8.11.2008 5:59pm:
Let me clarify my machine gun analogy. I am not repeating the situation in the initial post's table (I didn't know that what I have is a machine gun). I am asking a different error (I didn't know that machine guns were illegal).
That's a mistake of law, not a mistake of fact. It is no defense.
8.11.2008 7:43pm
Eugene Volokh (www):
Jim at FSU: One can argue that, in the wake of Heller, the Staples result should be made a constitutional requirement. My point was simply that Staples hardly settled the matter, given that it said not a word about the Second Amendment, and therefore "may well be unconstitutional" is all one can say.

cjwynes: No, there wasn't; you might be thinking about the Scalia/Thomas dissent in U.S. v. X-Citement Video, Inc., but that was a dissent. (I am indeed speaking here of distribution; I don't know of any solid caselaw one way or the other on the question of production, though the First Amendment cases would suggest that strict liability is impermissible there, too.)
8.11.2008 7:44pm
PatHMV (mail) (www):
Eugene... the young lady had already expressed her willingness before he asked to see her ID; the request did not upset the previously-reached agreement.
8.11.2008 7:48pm
cjwynes (mail):
Hmmm, thanks professor. That was the case I'd read back in law school. Somehow I misremembered the outcome completely -- d'oh! In my defense, Scalia's dissents are usually way more entertaining and much better written than the court's opinion, and when I see the phrase "legislative history" in an opinion I usually leap past all the boring junk about committee reports and drafting.

Where I practice, Missouri, statutory law adopted a two-tier analysis. The age of majority for all sex crimes is 17. Mistake as to age is a valid affirmative defense in all cases where the victim is 14-17, but in no cases when the victim is under 14. We were taught that rule had a common law pedigree of some sort.

If your analysis is correct, and sex has somehow acquired constitutional protection via Lawrence, I wonder if knowledge of age would have to be an element of our prima facie case, rather than mistake being an affirmative defense? I also wonder whether it would have to be extended to even those under 14, although I seriously doubt any mistake as to the age of a 13 year old girl would be considered reasonable by a jury.
8.11.2008 8:46pm
darelf:
Any man or woman who has to "check ID" before sex has a previously existing deficiency in their judgment.
8.11.2008 9:33pm
Bama 1L:
I think Seamus has got it right. Historically, sex either occurred within marriage, and even then took certain forms, or was punishable as adultery, fornication, rape, or sodomy.

But Lawrence seems to be telling us that, in fact, there is a presumption of licitness in all sexual activity. The case for strict liability gets that much weaker.
8.11.2008 9:35pm
Randy R. (mail):
Historically, people have had quite a bit of sex outside of marriage, and it's only in the last couple of hundred years or so that it was criminalized. Unless, of course, you really think that Henry VIII was the exception rather than the rule.

I'd say we are going back to the real traditions.
8.11.2008 9:55pm
Katl L (mail):
The tracy Lord case was about that
8.11.2008 10:25pm
Snarky:

I don't know of any solid caselaw one way or the other on the question of production, though the First Amendment cases would suggest that strict liability is impermissible there, too.


The First Amendment isn't really a good argument here. Putting an extra burden on pornographers to be extra careful about the age of their actors and actresses is not much to ask.

It is entirely reasonable to put that burden on them.

Let us put it this way. We can all agree that under current law sex with an underage actor or actress in a pornographic movie is a strict liability crime. The fact that the act is filmed does make it something other than statutory rape. Just as the fact that you really kill someone for a movie doesn't make it something other than murder. Or if a sex act is done without consent in the production of pornography, that is still rape.

So here is the situation. Right now, in the production of pornography with underage actors and actresses, whether or not child pornography charges against the producers can be brought on strict liability grounds (something that is apparently still a question, even though Volokh, who takes a very expansive view of the First Amendment, thinks there should be protection) certainly statutory rape charges can be brought against their overage onscreen partners.

Yet, countless pornographic movies are made. Not only that, among these countless pornographic movies, countless pornographic movies are made and advertised to involve Teens. (i.e. presumably and hopefully those who are 18 or 19.) All this despite the fact that whenever someone underage slips through the cracks, the crime of statutory rape is in fact being committed.

So, the idea that having strict liability for production when you already have strict liability for the act being filmed would seriously discourage the production of pornography borders on ridiculous.

As an empirical matter, strict liability for production would not "chill" the production of pornographic movies. (If it would, you would expect it to already be chilled.) Likewise, as an empirical matter, it is quite clear that strict liability does not in fact "chill" sex with those who are possibly underage.

So, if this thing called "empirical reality" matters at all in First Amendment analysis, then there should be no problem with strict liability for either statutory rape or the production of child pornography.

Here is my guess. I think EV realizes this. But I also think he is against statutory rape laws (except in extreme case -- I am sure that EV doesn't think that someone who hasn't even reached puberty can consent), given his libertarian tendencies, anyway. Being against statutory rape laws, he is naturally against strict liability for statutory rape.

For what it is worth, in my view ignoring reality in order to get First Amendment analysis to advance your particular ideology is not a good thing.

But alas, people seem to very rarely argue against their policy preferences when it comes to Constitutional analysis, except in cases where it crystal clear that their policy preferences are either not Constitutional required -- here what EV is arguing -- or not Constitutionally forbidden.

I would like just one example of Constitutional analysis where EV's policy preference was not clearly ruled out, where he nonetheless argued against that preference as a matter of principle.
8.11.2008 11:02pm
Michael J.Z Mannheimer (mail):
Eugene,

Wonderful topic. I spend a day in my Criminal Law class trying to get my students to distinguish Staples from Garnett. It's hard to do. There is definitely a Second Amendment subtext to Staples — after all, it is written by Thomas — but it is, as you say, a case of statutory interpretation.

I wonder if you've read Alan Michaels' wonderful article on this. I think it's called "Constitutional Innocence" and it's in the Harv. L. Rev. If my memory serves, his basic argument is this: when a crime consists of elements A and B, and A is constitutionally protected activity, B cannot be a strict liability element. I think Arnold Loewy has written on the implications of Lawrence for strict liability rape laws.
8.11.2008 11:09pm
Snarky:

If my memory serves, his basic argument is this: when a crime consists of elements A and B, and A is constitutionally protected activity, B cannot be a strict liability element.


I can imagine filling up an entire article in the HLR with this by adding a bunch of useless talk. But why bother?

As you have stated it, it is a silly argument. Shouldn't we consider the context of the constitutionally protected activity? If not, how could you even begin to fill an entire HLR article with this?
8.11.2008 11:21pm
Bruce McCullough (mail):
Eugene writes: Likewise, strict liability for possession of fully automatic guns (cf. the Washington case, mentioned 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).

Jim at FSU mentioned US vs. Staples, but apparently that wasn't enough to keep David Olofson from going to prison for having a malfunctioning AR-15 (strictly semi-auto) that broke and fired a few shots with one trigger pull before jamming. See http://www.infowars.com/?p=3702

Bruce
8.12.2008 1:44am
Dick King:
It looks like a splinter group from moveon.org is trying to convince Republican donors that they can get into trouble for exercising constitutional rights in some technical violation of some law.

If that doesn't cry out for a general principle that strict liability guilt is just wrong for an unintentional crime committed in furtherance of a constitutional right, I don't know what does.

-dk
8.12.2008 2:02am
ReaderY:
The problem with this argument is that the Lawrence court applied a rational basis test. It's well established that strict liability is consistent with rational basis. All the other items on the chart have been subject to heightened scrutiny, so a comparison is inappropriate. The right here is more in the nature of the right for bakers to work whatever hours they want and other rational-basis rights, it's not in the same ball park as free speech.

Although 5 Justices found no rational basis in the particular circumstances of Lawrence, wherever there is an additional factor that creates a rational basis, Lawrence doesn't apply. Minor status is clearly such an additional factor.
8.12.2008 3:01am
George Weiss (mail) (www):
ace-

good catch. the law was made a mockery of in that case. the guy got probation but had to pay 'restitution' to the 'victim.' what a croc. times like these make me wnat to practice in another state
8.12.2008 3:31am
theobromophile (www):
Any man or woman who has to "check ID" before sex has a previously existing deficiency in their judgment.

Depends on your viewpoint. If you think that anyone who has casual sex is exercising a deficiency in judgment, perhaps. Otherwise, it's actually very sensible. In California, for example, it is illegal to have sex with someone who is under the age of 18, even if one is also under 18. (If the actor is within 3 years of her age, it is only a misdemeanour; otherwise, it could be felonious.)

Freshmen in college can be 16 or 17 (or, if now-Prof. Volokh, about 12). Checking ID before a random hook-up (or even sex in a relationship) seems terribly sensible, given the potential for criminal liability.
8.12.2008 3:56am
Ricardo (mail):
Any man or woman who has to "check ID" before sex has a previously existing deficiency in their judgment.

Isn't it the case that store clerks are supposed to card anyone who looks under 30 before selling tobacco products? If we apply that same ultra-safe standard to sexual activity, it seems a reasonable enough precaution to avoid going to jail or prison if you think someone might be lying about his or her age.
8.12.2008 4:06am
Rather Not Say (mail):
CJWynes,

If your analysis is correct, and sex has somehow acquired constitutional protection via Lawrence, I wonder if knowledge of age would have to be an element of our prima facie case, rather than mistake being an affirmative defense? I also wonder whether it would have to be extended to even those under 14, although I seriously doubt any mistake as to the age of a 13 year old girl would be considered reasonable by a jury.


Your average 13 year old, sure. That's pretty much a given. Problem is that not everyone is average. A friend of mine's niece could have credibly passed as a co-ed at 11. Likewise, I've known (Non-biblically, thank you very much!) women who could pass as girls in their early teens or a bit younger well into their mid-twenties.
8.12.2008 6:43am
Cousin Dave (mail):
When I worked in a restraunt (back in the Stone Age), we were always told that if a person who wanted to order beer presented an ID that showed them to be of age and wasn't an obvious fake, we were to serve them. If it subsequently turned out that the person was underage, we would not be held liable because we had taken reasonable precaution, and we were not responsible for the underage customer's attempt to defraud us. Presenting a fake ID for alcohol purchases is itself a crime, at least it was in Tennessee. There was a case of another restraunt in our chain, in a different part of the state, where the state's ATF bureau had sent in an underage agent with a fake ID to purchase alcohol. They served him, and the server was subsequently arrested. He was found guilty at trial, but got the conviction thrown out on appeal, the rationale being that the agent's presenting a fake ID constituted entrapment.

So, at least in Tennessee, there is/was no strict liability for alcohol enforcement. Given that the legal age for alcohol consumption is higher than the age of consent for sex in every state, and the fact that a lot of enforcement activity goes into preventing underage drinking, it would appear that all states consider underage drinking a more harmful activity than underage sex. In this light, the strict liability standard for underage sex certainly seems inconsistent.
8.12.2008 11:31am
David Drake:

"I can see that you're fifteen years old
No I don't want your I.D."

(Jagger &Richards, Stray Cat Blues)
8.12.2008 11:38am
Deoxy (mail):

That mass distribution aspect is not present with actual sexual encounters, which are perforce one-on-one (yeah, yeah, insert joke here, you get the point). It is entirely feasible for the older partner to ascertain the age of the younger partner in this one-on-one (or small group) encounter. The burden of strict liability would be quite small, unlike the widespread burden in the case of mass distribution of images or movies. Thus, there would be little chilling effect on constitutionally protected sexual encounters among adults.


1) You're not arguing for STRICT liability, you are arguing for "negligence liability" - did read the original post? This was very explcitly and specifically discussed.

2) There is a real case that I know of (and probably a good many that I don't) where a man met a woman at a bar. They were both drinking, and she had ID. They went back to his place, blah blah blah, and he went to jail for statutory rape. She looked to be in her 20s, she said she was in her twenties, she had a VERY GOOD fake ID that said she was in her twenties. Is that justice?!?

A friend of mine's niece could have credibly passed as a co-ed at 11.


Age of first menstruation has been delining for decades (at least). Some girls "blossom" early. While I haven't met any young girls (12-14) who could pass as "old enough" emotionally and socially, I'm met several who could easily pass as early twenties physically, and a little coaching (or very unfortunate life experiences) could change the emotional/social behaviour.

I've seen exceedingly few cases in my life where strict scrutiny is a just or reasonable standard for ANYTHING; it's simply an open invitation for abuse.
8.12.2008 11:56am
Anderson (mail):
Any man or woman who has to "check ID" before sex

Ruins the mood, too, lemme tellya.
8.12.2008 12:46pm
Suzy (mail):
Which abuse? The abuse of the 12-14 year old girl who's being mistaken for a woman in her twenties?

If you assume that strict liability in these cases depends on some tradition in which extramarital sex of any type is discouraged, then perhaps it does seem that when adult consensual sex is presumed licit, there is no longer a basis for strict liability for underage sex. I don't see why we must assume that this tradition is the only reason for a strict liability standard, though. Perhaps it's because of the crime we're trying to prevent? It's a little disorienting to read the comments on this blog, sometimes, when it swings from outrage over the USSC's decision about the death penalty for pedophile rapists to concern that a lot of middle schoolers could "pass" for twenty, and checking ID's kind of kills the mood. Something is wrong with this picture.

I also don't buy the comparative arguments about alcohol, because in many places it would indeed be a strict liability issue if you procured alcohol for a minor.
8.12.2008 1:07pm
Deoxy (mail):

I also don't buy the comparative arguments about alcohol, because in many places it would indeed be a strict liability issue if you procured alcohol for a minor.


Which is also exceedingly stupid. How am I to know the age of someone? They present ID that, by all methods I am ALLOWED BY THE STATE TO USE, appears genuine. The physical appearance of the person in no way suggests they couldn't be that age (in fact, I might guess them older than that).

And yet, if I sell them them alcohol (or have willing sex with them, even if they initiate it), *I* am the criminal? Due diligence and good faith get me NOWHERE?
8.12.2008 1:31pm
Suzy (mail):
Well, then you have a problem with any strict liability law, I suppose. The "good faith" of the perpetrator is not relevant when the consequences are severe enough--that's the whole point. You seem far more concerned about what will happen to the man of "good faith" who rapes a 12 year old than you are about what happens to the 12 year old. If that's how you see it, ok, but I'd venture that's partly why we need such laws.
8.12.2008 1:45pm
Gullyborg (www):
Well, I have a problem with virtually ALL strict liability laws. What ever happened to concepts like motive and intent? I especially have a problem with strict liability laws where there is no "victim" (such as speeding on a deserted road) or where the "guilty" could not possibly have reasonably been acting in violation of any safety standard (I knew a guy given a $1,000 fine for "open container" because his bag of recycling included an empty beer can).

There should be NO strict liability in ANY case where there is an actual punishment by the state if the "guilty" took reasonable action to comply with the law. So if a girl "looks" like an adult and has ID that supports it, NO ONE should be punished for treating her like an adult.

Wasn't that the outcome of the Tracy Lords case?
8.12.2008 2:31pm
zippypinhead:
Professor Volokh responded:
One can argue that, in the wake of Heller, the Staples result should be made a constitutional requirement. My point was simply that Staples hardly settled the matter, given that it said not a word about the Second Amendment, and therefore "may well be unconstitutional" is all one can say.
But because of the existence of Staples, it's fairly unlikely the specific Constitutional question you raise will ever be reached, since the same result is a well-established element of the offense as a matter of statutory interpretation. Unless the issue comes up in some state where machinegun possession is a strict liability offense under state law (I don't know of any such laws; they may exist in jurisdictions I'm not familiar with)?

The requirement you prove the defendant had knowledge that the firearm was a machinegun matters in the real world, and does sometimes affect charging decisions. Until I prosecuted my first machinegun possession case many years ago, I never realized just how difficult it is to prove knowledge in some instances. A fairly typical fact pattern involves someone acquiring a used gun that left the factory as a semi-automatic, but was illegally converted to full-auto at some point by persons unknown. The defendant is arrested with the gun for some incident that doesn't involve having actually discharged it. The defendant claims he never knew it was a machinegun, never tried to fire it on full-auto, etc. And once in a while the defendant might even be telling the truth when he says he had no clue.

Evidence the defendant knew he had a machinegun is sometimes difficult to obtain. Looking at the exterior often won't reveal the conversion, since the auto position on the safety/selector switch won't be marked if the gun was manufactured as a semi-automatic. Sometimes the conversion ought to be obvious to anybody who field-strips the firearm for cleaning, especially where the work is amateurish (although many crooks and gang-bangers don't properly maintain their pieces, so the argument he never took it apart for cleaning might pass the laugh test). But in other cases only a gunsmith or firearms expert can tell the difference between a semi-auto versus machinegun version of the same model from a physical inspection.

In such cases the most common ways of proving knowledge that the firearm is a machinegun are (a) the defendant admits knowledge, either during interrogation or to a third party witness; (b) a witness observes the defendant fired the gun on automatic mode at some point; (c) some other fact exists indicating knowledge, such as records showing the defendant purchased illegal conversion parts, that he accessed web sites containing do-it-yourself automatic conversion instructions, kept the semi-auto parts he swapped out of the gun, etc.

Given that it is plausible that someone might think in good faith they have a legal semi-automatic when it's really a machinegun, the scienter requirement under Federal law is the right result. Although I absolutely refuse to try to analogize knowing the mechanical differences between an AR-15 versus an M-16 with knowing the physiological differences between a hot college girl and a tarted-up 13-year-old. Not gonna do it, wouldn't be prudent... <:~(
8.12.2008 2:33pm
Gregory Conen (mail):
@Suzy:
Does prosecuting the man, after the fact, significantly reduce the damage to the 12-year old? I tend to doubt it, especially since the trial is likely to involve a certain amount of mudslinging by the defense.

Further, since the defense requires that the belief be "reasonable", it would be an extraordinary circumstance that someone credibly claim that they believed a 12-year old was 18 (or even 16). Many of those circumstances (eg a 12-year old willing to acquire and use a false ID to have sex) suggest that the girl involved is already damaged, and the additional harm of (nominally) consensual sex may be small.
8.12.2008 3:32pm
Vinnie (mail):
I have had a semi auto go full auto on me. If an agent of the BATFE had seen that I would have arrested and convicted.
8.12.2008 3:54pm
PubliusFL:
Randy R.: Historically, people have had quite a bit of sex outside of marriage, and it's only in the last couple of hundred years or so that it was criminalized. Unless, of course, you really think that Henry VIII was the exception rather than the rule.

Actually, I believe there was some kind of distinction made in the law between the sovereign and his subjects. ;) Different social expectations applied to people of different stations, too.

But laws restricting sex outside of marriage definitely go back farther than the last couple of hundred years. Try the last couple of millennia, and more.
8.12.2008 4:11pm
zippypinhead:
I have had a semi auto go full auto on me. If an agent of the BATFE had seen that I would have arrested and convicted.
Well, you would if it could be proven you already knew the firearm tended to malfunction and runaway like that, and still continued to use it. I recall reading about one case with bad facts like that from not too long ago.

The more appropriate penalty, IMHO, would have been for the BATFE agent, the Range Safety Officer, and every other responsible gun owner who happened to be on the range while the idiot was irresponsibly endangering them by continuing to use a malfunctioning firearm to forceably take his gun away from him and beat him silly with it.
8.12.2008 4:29pm
NYU JD:
Another interesting part of your argument is that it also justifies strict liability for degrees of guilt, while making it constitutionally impermissible to use strict liability to determine guilt. The two most common examples are age of statutory rape victims, and degrees of drug crimes based on the amount of the drug possessed or sold. In these cases, if you use strict liability for degrees of guilt (i.e., "I only thought I was selling 10 grams of crack, not 10 kg!" is not a defense to the higher degree charge), you're not chilling legal behavior.

Or, in the example some people have brought up in this thread, EV's argument doesn't really come into play to allow a "But I thought she was 14!" defense to 1st degree statutory rape, where sex with a 14 year old would still be illegal at a lesser degree. We don't need to be concerned about chilling sex with 14 year olds, so the chilling effect argument doesn't come into play.
8.12.2008 6:08pm
Gregory Conen (mail):
NYU JD's point also seems to be the justification for felony murder doctrine.
8.12.2008 6:20pm
DanielT:
I think that people are confusing a legal analysis with a policy analysis. The fundamental presumption of statutory rape laws is that the minor cannot consent because they do not have the mental capacity to consent. It has nothing to do with their physical appearance or their ID. In fact, if they have a fake ID and lie about their age, this is no defense to stat rape but another example of the impaired mental functioning that minor typically exhibit. Adults are strictly liable for the exercising of their judgment. The burden on you as an adult is not merely to look at the superficial aspects of the case (her appearance, her ID) but evaluate her mental and emotional competence for making sound decision. The fact that she wants to have sex with you is just another indication of the poor decision making abilities of minors and should be your first tip off that you are dealing with one.
8.12.2008 7:32pm
Michelle Dulak Thomson (mail):
DanielT,

The fact that she wants to have sex with you is just another indication of the poor decision making abilities of minors and should be your first tip off that you are dealing with one.

Ummm . . . wow. Did you mean that the way it read?
8.12.2008 7:39pm
George Weiss (mail) (www):
to the people wondering about the underage alcohol analogy

(where some states hold some people strictly liable for alcohol to a minor (even where defendant reasonably mistook age after a fake ID) and other states have a negligence standard or an intentional standard)

another inconstancy is the contract defense of being a minor. in many states, if a minor professes that he is over the contract age-he is estoppled from using his age to get out of the contract. in many of those same states-if the minor lied about being a kid and the guy had sex-he is strictly liable criminally.

that also seems pretty inconsistent. but of course-since this is a democratic society-the law need not be consistent or even make sense-it just must be politically correct.
8.12.2008 7:48pm
PubliusFL:
Daniel T. I think that people are confusing a legal analysis with a policy analysis. The fundamental presumption of statutory rape laws is that the minor cannot consent because they do not have the mental capacity to consent.

That's a good point, but I don't think it completely explains why reasonable mistake about consent is a defense to other types of rape where consent is absent but not a defense in the case of statutory rape.
8.12.2008 7:50pm
George Weiss (mail) (www):
danielT-

i think its you who are confused. consent has nothing to do with what we are talking about. its true that consent, by definition is not a defense to stat rape. also, it is not really true that stat rape is a crime becuase the victim 'cannot legally consent.' Rather- stat rape is a crime becuase the act of sex in such cases is prohibited-and force is not an element of the crime-making consent (the opposite of force-simply irrelevant). strict liability has nothing to do with whether consent is an element of the crime or not.

strict liability does has to do with whether lack of intent to commit the crime is a defense.

in stat rape those mistake of fact defenses are either allowed or not allowed depending on the way the statute is written to include intent (such as AZ), whether the statute does not require intent but the courts have read intent into those statute (such as CA), whether the statute does not require intent and the courts have refused to read intent into the statute (such as MD), whether the state has held strict liability for stat rape a violation of the states constitution (as in Alaska), whether a separate statute exists provideing for a mistake of fact defense (such as Indiana) or specifically rejecting the defense (such as Fl), or whether the separate statue allows the defense in some cases but not in all cases (such as IL).
8.12.2008 8:03pm
George Weiss (mail) (www):
nyu jd-

yes its true that EV's argument wouldn't work for strict liability enhancements (i thought i was only selling 10 when it was really 50-when selling 10 is illegal)-and for cases where the age he thought she was was also illegal but a lower category of illegality.

but while using strict liability for those cases wouldn't be prohibited constitutionally under EV's theory-that doesn't mean enforcing or having on the books such strict liability ideas is necessarily a good or bad idea as a matter of policy.
8.12.2008 8:13pm
NYU JD:
George Weiss--

That's correct--I should say that EV's theory doesn't justify strict liability enhancements, but it doesn't prohibit them either. But there were people arguing earlier in the thread that EV's argument would lead to silliness if people tried the "But I thought she was 14!" defense, and I think that claim doesn't work.
8.12.2008 11:09pm
George Weiss (mail) (www):
nyu jd

gotcha
8.12.2008 11:32pm
Gregory Conen (mail):
@DanielT:
Except that normal (adult) rape is not a strict liability crime anywhere, as far as I know. If a third party, unbeknowst to me, threatens a woman into having sex with me, I'm not raping her, even if her apparent consent (to my face) is not real.

Thus, a mistake of fact about consent serves as a defense.
8.13.2008 10:22am
Deoxy (mail):

The "good faith" of the perpetrator is not relevant when the consequences are severe enough--that's the whole point.


The problem is that the difference between "crime" and "not crime" is, in many such cases, indistinguishable to the supposed criminal and/or easily manipulated by the police.

Drug possession, for instance, is the ultimate abusable charge. The amount of contraband required to incriminate someone is so small that it can be easily hidden almost anywhere... one anonymous call to the police later, and your victim is officially a criminal in the eyes of the government, without ever having known where that little baggie even came from. Want more? Some night, go bury a large volume of said contraband in your victim's back yard, and watch the show. And all of this without a corrupt or dishonest officer of the law involved (and there are bound to be at least a few of those in a country this large).

Statutory rape is another such case, and it's at least as absurd. A girl goes out for a big bash on her 18th birthday, and has a fling with some guy... only she does so as 11:40 pm, and her parents don't approve and feel vindictive... yeah.

And this is without dealing with well-documented cases of girls who are the ones doing the seduction, in some cases serially, knowing that (as a minor), they won't get in trouble, but their victim can and often will... blackmailing said individuals after the fact is not unknown. And the law sees the girl as the victim and the guy as the criminal? OOOkkkkaaaayyy... If you're ok with that, you have serious problems, and I don't want to associate with you.

The thing that really gets me in all of this is that I am a very conservative person, personally; I don't approve of extra-marital sex, for instance. I have a daughter (and another on the way), and I would feel a visceral desire to kill a man who slept with her when she is 12-16 (and probably older, truth be told), but the state's "solution" to this is so bad that I simply can't support it. It is unjust, immoral, unethical, and wrong.

Is the seduction of young girls by older men a serious problem that needs a strong solution? Yes, certainly. But when that "solution" criminalises the 18yo future spouse* of a 17yo (or bump them both down a year or two, by state), it is not a solution at all.

*Yes, there is a non-trivial number of those, too - men who are "sex-offenders" who are now married to their "victim", prosecuted at the parents' request. Makes for nice family relations...
8.13.2008 2:52pm
Suzy (mail):
I would agree that some statutory rape laws are poor in the details. To use an example from Deoxy's comment, it shouldn't be a crime for an 18 year old and 17 year old to have sex. We could change those laws without throwing out the whole concept of strict liability in these cases.

I am not convinced that the serial seduction and blackmail of older men by underage girls is a serious problem. Rather, I am convinced by the evidence that too many underage girls (and boys) are sexually abused. I don't see any problem with placing a significant burden on people who would want to have sex with underage kids, to take full responsibility for determining their age, any more than I see a problem with placing a burden on someone engaging in a very hazardous activity to take responsibility for all consequences, even if unintended. Having sex with a child is a terribly hazardous activity, given the degree of damage to the child; it's troubling that many of the comments above don't seem to take this seriously (e.g. Gregory's idea that a child who might agree to have sex is already damaged, so the resulting damage wouldn't add so much more).

Again, I'm left wondering what happened to the idea, in the aftermath of Kennedy v. LA, that rapists of children should be put to death, when it seems we can't even hold them responsible for determining whether their victims are children. After all, the 12 year old might have been a makeup-wearing, blackmailing seductress whose friends said she was older? Come on. That's so detached from reality.
8.13.2008 5:28pm
DanielT (mail):
I had completely forgot I had posed here until Corey posted a link on his sex crimes blog. I normally don't post because I find the commentary here rather superficial and insipid and this topic is a good case in point.

Basically, I think EV misunderstands the rationale for strict liability. It isn't based upon what the subject knows about the specific individual but what the subject knows about the activity in general. Having sex with young men or women is by social definition an extra-hazardous activity. It's playing with dynamite. It's not the social equivalent of riding a bike down the street. If you chose to play that game you need to accept the consequences and understand that you are engaging in an extra-hazardous activity. Again, it's not what you know or should have known about the specific individual but what you knew or should have known about the activity in general. So even if the person who is over 18 acted quite reasonably, they can be held to a standard of strict liability due to the extra-hazardous nature of the activity they were engaged in.

Under EV's analysis there would be nothing, not even the handling of nuclear weapons, that would be subject to strict liability. Because if there is a non-sexual activity that is subject to strict liability it's sexual corollary is activity with minors and those close in age to minors. And the reason we believe that as a matter of policy (which is embodied in the stat rape laws) is because minors do not have the mental capacity to consent. If you are messing around with people who do not have the *capacity* to consent you are engaging in extra-hazardous activity.

"That's a good point, but I don't think it completely explains why reasonable mistake about consent is a defense to other types of rape where consent is absent but not a defense in the case of statutory rape."

Because sex with teens has been defined as a socially extra-hazardous activity. And extra-hazardous activities are by definition those subject to strict liability.

I do realize that the purpose of the law as EV understand it is to make things opaque. I hope this post makes it a little clearer.
8.15.2008 12:34am