Texas Court of Criminal Appeals Divided Over Strict Liability in Statutory Rape Cases

In Fleming v. State of Texas, 2014 Tex. Crim. App. LEXIS 879 (June 18, 2014), nine members of the Texas Court of Criminal Appeals fractured over whether the defendant in a statutory rape case could argue in defense that he believed in good faith that his sexual partner was not underage. In common with most states, Texas has traditionally treated statutory rape as a strict liability offense: the prosecutor need only prove that the victim was under the age of consent in order to secure a conviction. In this case, the defendant, then age 25, sought to prove that he believed that his female sexual partner was over 17, the Texas age of consent, based on her representations to him directly that she was 22, and also information on her myspace.com homepage indicating her age as 20 and her status as a college student, but she was actually 13 when their sexual relationship began (at her instigation). The situation was brought to the attention of law enforcement when her mother discovered some correspondence and interrogated her about what was going on. Fleming pled “no contest” when the trial court refused to consider his mistake-of-fact defense and preserved the right to appeal on this point. Fleming had argued that the state should have to prove mens rea; that he had the actual intent to have sex with a minor while knowing that she was under the statutory age of consent, which is 17 in Texas.

The court noted that the Supreme Court had upheld treating statutory rape as a strict liability offense in Morissette v. U.S., 342 U.S. 246 (1952), and that the Texas Penal Code did not impose any mens rea requirement concerning the victim’s age. The court acknowledged that the parties had argued over whether Lawrence v. Texas should affect this issue, but the majority did not address the point in the “Discussion” section of its written opinion. While the majority of the Court of Criminal Appeals affirmed the conviction, one member of the majority, Justice Elsa Alcala, concurring, said she did so “reluctantly” since she believed that this defense “already applies to the offense of consensual statutory rape,” but recognized that this was not “the current state of the law in Texas.” Three members of the court dissented in an opinion by Presiding Judge Sharon Keller, who argued that various factors that had supported the traditional rule were no longer salient. Most importantly, she argued that Lawrence v. Texas requires changing the rule.

“The rationale for holding a defendant strictly liable because he should have at least realized that he was committing the illegal, immoral, or risky conduct of fornication with an adult has been negated entirely by the holding in Lawrence,” Judge Keller wrote. “Under Lawrence, consensual sexual activity between adults, married or unmarried, is constitutionally protected. Such activity can no longer be outlawed, and moral considerations with respect to such activity are no longer legally relevant. After Lawrence, ‘consensual sexual activity between adults is no longer subject to strict legislative regulation,’” she continued, citing a law review commentary, “and thus, a defendant does not necessarily act at his peril when he reasonably believes that he is having sexual relations with an adult. The holding in Lawrence has led at least two law professors to contend in published law review articles that due process requires that a defense be available to an individual who engages in sexual intercourse with a person that he non-negligently believes is an adult.”

A concurring opinion had argued that in Lawrence the Supreme Court stated that its ruling did not apply to sex involving minors, but Keller contended that this was not relevant to the question before the court. Rather, she contended, the Supreme Court’s embrace in Lawrence of the argument that adult consensual sex is constitutionally protected from criminal prosecution fatally undermines the traditional approach of not requiring the prosecution to establish specific mens rea in a statutory rape prosecution. She explained that because fornication was traditionally a crime, anybody who had sex with a person to whom they were not married already satisfied the mens rea requirement of having intent to engage in criminal activity, so courts did not require the additional showing that they knew their sexual partner was a minor, in light of the state’s compelling interest of protecting the welfare of minors. Texas had previously repealed its fornication statute, evincing a policy judgment that Judge Keller argues now supports requiring a specific mens rea requirement concerning age, but, even more strongly, in light of Lawrence, what was a legislative judgment is now a constitutional requirement.

She also argued that the defendant should have to establish his reasonable belief that his sexual partner was at least 18 years old, contending that federal precedents would identify 18 as the age of adulthood, even though Texas law established 17 as the age of consent. Since she was grounding her argument on the constitutional holding in Lawrence, she argued that the state statutory age of consent was not relevant to her analysis. “The United States Constitution and Supreme Court jurisprudence draw a distinct line at the age of eighteen,” she wrote. “One must be at least eighteen years of age to vote. Persons under eighteen years of age are considered juveniles for Eighth Amendment purposes, rending them ineligible for the death penalty, for life without parole in non-homicide cases, and for automatic life without parole in any case. Age eighteen also appears to be the line drawn for First Amendment purposes in determining what constitutes legally proscribable child pornography. The Supreme Court has stated that ‘the age of 18 is the point where society draws the line for many purposes between childhood and adulthood.’ An eighteen-year-old has a right to exercise a certain social independence that generally does not belong to persons under that age.” Thus, she rejected the significance of some post-Lawrence cases that had rejected a mistake-of-age defense where the defendant had claimed he believed his partner had attained the age of consent of 17.

Judge Keller’s argument appeared to depend on treating Lawrence as a fundamental rights case, since she devoted considerable attention to the question whether the state had a “compelling interest” in protecting minors from sexual exploitation and whether making statutory rape a strict liability offense was sufficiently “narrowly tailored” in the context of strict scrutiny judicial review. She concluded that a “rigorous strict liability” rule was not narrowly tailored, as it was insensitive to the fact that people mature at different rates, and thus that it was possible for an individual defendant to have sincerely and non-negligently believed that his underage sexual partner was an adult. She set out a four-part test that she contended would be required as “elements of a constitutionally required mistake-of-age defense,” pointed out that the lower courts’ rulings in this case to exclude argument and evidence going to mistake-of-fact should be reconsidered in light of these factors, and argued that the case should be remanded so that the court of appeals could address these issues “in the first instance.”

Although the majority did not respond in detail to Judge Keller’s dissent, Judge Cathy Cochrane did so in an extended concurring opinion, pointing out that in pre-Lawrence cases the Supreme Court had upheld the common law presumption of mens rea in statutory rape cases and arguing that Lawrence just did not address this issue. “Nothing in Lawrence suggests that a defendant has a constitutional right to a mistake-of-fact defense as to his belief about the age of a child who was thirteen years old at the time of the sexual offense,” she argued, pointing out that the Court had explicitly limited its holding in Lawrence to a situation involving “two consenting adults.” “In Lawrence, as in its earlier decisions, the Supreme Court has carefully drawn lines to ensure that the State remains free to enact legislation that gives effect to its legitimate interest in the protection of children,” she wrote, noting that “only a minority of jurisdictions permit this defense under similar facts.” She argued that even if, as the dissent contended, a successful mistake defense would be rare, “this suggestion underestimates the probable impact of this court’s adoption of such a defense, which, if permitted, would be raised in virtually any case in which a defendant could plausibly claim that he was unaware of the complainant’s age.” This would, in effect, put the complainant on trial about such things as his or her grooming and dress, state of sexual development, sexual history, conduct on social media, etc. “Avoiding this type of victim-bashing was precisely why rape shield laws were passed decades ago,” she wrote. “If this court were to permit a mistake-of-fact defense under the misguided belief that it was constitutionally required, then trial-court judges would be similarly constitutionally required to permit defense interrogations posed to young children and their families about embarrassing personal matters. The likely result would be the re-victimization of these young sexual assault victims at each of their respective trials.” This, in turn, would deter people reporting violations out of fear that the child would need to testify and be subject to cross-examination, leading to “the practical effect of diminishing protections for victims and their families and deterring reporting of sex crimes.”

On the facts of this case, it seems unlikely that a defendant in the position of Fleming would be able to convince a court that he reasonably and non-negligently believed that a 13 year old girl was at least 18, but Judge Keller appears to argue that he should have been given the opportunity to do so. Keller’s argument would seem to have greater force in a case where the underage sex partner is much closer to age 18, but she makes a strong argument that drawing bright lines in terms of age could be sacrificing justice for convenience in particular cases. While her argument did not persuade a majority of the court, she noted that several states have abandoned the strict liability approach, so this is an area where change has begun to occur.

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