Reasonable Rape

In Los Angeles, Francisco A. Hernandez met a girl, dated her for several months and then had intercourse with her. Illegal? Well, said Hernandez, she consented. Then why should the law care?

The answer is that Hernandez was guilty of statutory rape--intercourse with a girl who is under the legal age of consent. Hernandez went on trial.

Predictably, he protested that he honestly believed his girl to have been over 18, the California age of consent. But all the prosecution needed was that one damning fact--she was three months under 18. As a result, Hernandez was convicted, and faced up to 50 years in prison.

Innocent Mind. What makes all this a current cause celebre in assorted law reviews is the fact that statutory rape is a rare anomaly in U.S. law. In most crimes, notes Omaha Lawyer Larry W. Myers in the Michigan Law Review, the prosecution must prove mens rea (the guilty mind), an ancient concept that includes criminal intent. Not so for statutory rape. An American may beat the rap by proving that he didn't do it, proving that the girl was of age--or (in Virginia) marrying her. In most cases, though, a claim that he honestly and reasonably believed that the girl was old enough simply will not do.

Everyone agrees that statutory-rape laws are soundly aimed at protecting immature girls from seduction, says Myers. Indeed, modern permissiveness in feminine speech, dress and deportment may well make such laws all the more important. But what if the girl is experienced or deliberately lies about her age? Along with having no defense, argues Myers, a man confronts "unrealistically high" ages of consent in most states. Delaware, to be sure, sets the age at seven, but in most other states it ranges from 16 to 18--and up to 21 in Tennessee. For statutory rape, a man can get 30 years in Connecticut, 99 years in Montana, and life imprisonment in Indiana. In 17 states, he faces death.

New Realities. The point of Myers' article is that all this may well be changed by the case of Francisco Hernandez. Until he appealed to the California Supreme Court (see Courts), no U.S. court has ever permitted age-mistake as a defense against a charge of statutory rape. Hernandez, though, pointed to a California law that exonerates criminal acts committed "under an ignorance or mistake of fact which disproves any criminal intent." Having recently applied that rule to bigamy, the California Supreme Court scrapped 68 years of precedents and extended it still further in reversing Hernandez's conviction. Chief Justice Roger Traynor added: "This is not to say that the granting of consent by even a sexually sophisticated girl known to be less than the statutory age is a defense. We hold only that, in the absence of a legislative direction otherwise, a charge of statutory rape is defensible wherein a criminal intent is lacking."

Taking their cue from California, the legislatures of Illinois and New Mexico have since enacted laws providing age-mistake as a defense. Critic Myers also urges that strict liability be imposed only when the girl is under 13, an age when she "is just gaining the physical capacity to engage in intercourse, but remains seriously deficient in comprehension of the social, psychological, emotional and physical significance of sexuality."

When the girl is between 13 and 16, he argues, she may easily look and act 16 or older, and the male should be allowed reasonable age-mistake unless he is more than four years her senior. "Finally," says Myers, "consensual intercourse with females 16 and older should not be branded as rape." If legislatures balk, he adds, "the courts themselves, as in Hernandez, should take the initiative and bring their decisions into line with social realities by recognizing the defense of reasonable mistake of age."

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