Statutory Rape. How deep does the rabbit hole go?

[1010011010]

Is being a victim of fraud a sufficient argument against statutory rape?

Not of the "Well, I met her in a bar and she was drinking, so I guess she had to be 21, right?" variety. I'm talking that you've done the improbable and asked for picture identification and a notarized copy of her birth certificate... all establish her age as 21... but they're all forgeries, and she's really 15. Better yet, just the birth certificate is a forgery. The drivers liscense she showed you was real, issued by your state of residence, on the forged birth certificate. Is there any point at which you cease to be liable... or are you subject to the mercy of the DA choosing not to prosecute?

[AskNott]

Og says don't go raping statues, man. Be not jerk. Og know where you live.

[chula]

Statutory rape is a strict liability crime. It is irrelevant what you knew or what your intentions were.

[Broomstick]

Wasn't it Tracey Lords who made a bunch of porn films while she was underage? Apparently she used forged ID at work. I think she got married and gave her true age and that's when everything hit the fan. The movies were pulled from circulation - legally, they're child porn, at least the earlier ones. The fraud was clearly on her part, not the filmmakers. I don't think anyone was prosecuted...

Anyone have a better recollection of the situation?

[Alereon]

The name is Traci Lords, to aid Googling.

[BwanaBob]

The second that shit the fan I destroyed my two movies. For the exact reasons stated; I didn't want to be in possession of child-porn; even though they were bought in good faith.

[DocCathode]

The government had problems with the Traci Lords case as it had also been fooled. It's hard for a prosecutor to argue that the fake documents and ID weren't convincing when Lords used them to obtain a passport from the US government.

[Metacom]

Statutory rape is a strict liability crime. It is irrelevant what you knew or what your intentions were.
I thought this depended on the state, at least in the US?

[Mr. Moto]

Ideally, the prosecutor would take one look at the case and decide it's not worth prosecuting. However, circumstances aren't always ideal.

[JerH]

I would think that, in taking the time to check her license and birth certificate, that would be evidence that you weren't intending to commit stat rape - in fact, were trying to avoid it. Assuming that the documents in question were at all believable (i.e., the birth certificate wasn't written in crayon on the back of an Old Navy receipt), and the lady at least looked like she could be over 18, then it would be difficult to find a jury to convict you.

[Paul in Qatar]

Rabbit hole? Is that we're calling it now? Cute.

[jayjay]

Rabbit hole? Is that we're calling it now? Cute.

Well, the old word for rabbit is coney, pronounced cunny, and that's where the word c*nt is believed to have come from (it being, outwardly at least, a small warm furry thing), so...

[Bear_Nenno]

I would think that, in taking the time to check her license and birth certificate, that would be evidence that you weren't intending to commit stat rape - in fact, were trying to avoid it. Assuming that the documents in question were at all believable (i.e., the birth certificate wasn't written in crayon on the back of an Old Navy receipt), and the lady at least looked like she could be over 18, then it would be difficult to find a jury to convict you.
In FLorida, such evidence is not even admissable. You cannot tell the jury that she had a fake ID or that you met her in a club. Lacking knowledge of the victim's true age is not a defense. Your only chance with the fake ID and birth certificate defense would be convincing the detective to not arrest you. Like any other crime, he can exercise discretion. But once in trial, you're SOL.

[Acsenray]

evidence that you weren't intending to commit stat rape

Intent is irrelevant for strict liability. The jury won't be allowed to consider the issue.

[JRDelirious]

In FLorida, such evidence is not even admissable. You cannot tell the jury that she had a fake ID or that you met her in a club. Lacking knowledge of the victim's true age is not a defense. Your only chance with the fake ID and birth certificate defense would be convincing the detective to not arrest you. Like any other crime, he can exercise discretion. But once in trial, you're SOL.

IOW, in Florida you should only date people who are over 30 and look like it. And pray.

But it seems to be the answer to the OP is yes, you are at the mercy of the DA feeling it's worth it.

[Bippy the Beardless]

How would a person of legal age ensure they was no chance a potential SO is of legal age in Florida then? If they are automatically guilty if the SO turns out to be under 18 years old no matter how well that person 'proves' they are above 18.
Is it just a case that anyone who looks under 30 should be avoided just in case they are using false identification to up their age?
(Maybe this is why the elderly retire to Florida, where the only 'safe' shag is when your partner has dentures and a hip replacement ;) )

[andymurph64]

Rabbit hole? Is that we're calling it now? Cute


I thought the formal phrase was 'San Quentin Quail'.

[Little Nemo]

In FLorida, such evidence is not even admissable. You cannot tell the jury that she had a fake ID or that you met her in a club. Lacking knowledge of the victim's true age is not a defense. Your only chance with the fake ID and birth certificate defense would be convincing the detective to not arrest you. Like any other crime, he can exercise discretion. But once in trial, you're SOL.
Is this true? Florida courts are excluding relevent evidence for the defense? What's next; "Your honor, I have three witnesses who'll testify I was a hundred miles away when the crime occurred." "I'm going to rule that inadmissable. Evidence of an alibi might influence the jury to find you not guilty."

[Acsenray]

Is this true? Florida courts are excluding relevent evidence for the defense? What's next; "Your honor, I have three witnesses who'll testify I was a hundred miles away when the crime occurred." "I'm going to rule that inadmissable. Evidence of an alibi might influence the jury to find you not guilty."

If the law makes statutory rape a strict liability offense then the only relevant issue is whether or not you had sex with the underage person. In other words, "I thought she was of age" is not an effective alibi and is not a defense to the crime. Your intent or any other state of mind, such as evidence of your belief about her age, is not relevant.

[Ike Witt]

I can't remember, was Rob Lowe aquited? He was charged with having sex with a minor even though he met her in a bar. I don't remember how that all played out.

[Gfactor]

How would a person of legal age ensure they was no chance a potential SO is of legal age in Florida then? If they are automatically guilty if the SO turns out to be under 18 years old no matter how well that person 'proves' they are above 18.
Is it just a case that anyone who looks under 30 should be avoided just in case they are using false identification to up their age?
(Maybe this is why the elderly retire to Florida, where the only 'safe' shag is when your partner has dentures and a hip replacement ;) )

That's pretty much it, if you want certainty. Another course of action would be to move to a state with a lower age of consent (http://www.ageofconsent.com/ageofconsent.htm).

In most states there is no good faith defense. As others have said, it is a strict liability crime.

The Traci Lords incident resulted in Federal legislation that gave the porn industry a good faith defense as long as producers kept records of the information provided by the participants in their films. That is why you see the Compliance screen at the beginning of adult films these days:

It is required by 18 USC section 2257 (http://).

[Gfactor]

I can't remember, was Rob Lowe aquited? He was charged with having sex with a minor even though he met her in a bar. I don't remember how that all played out.

Rob Lowe - TV and film star. Former brat packer. Back in 1988, during the Democratic National
Convention in Atlanta, Lowe taped himself in compromising positions with a 16-year-old girl and a
young woman. Lowe agreed to perform 20 hours of community service to avoid criminal charges.


http://www.ageofconsent.com/comments/numberthirtynine.htm

[Hamlet]

This is not legal advice and is not intended to be used in any way

To answer the OP:

In a vast majority of states, guilt in statutory rape cases is established on proof of the prohibited act, and the defendant's reasonable belief that the female was at or over the age of consent is not a defense. In at least four states reasonable mistake of age does constitute a defense. Furthermore, in some jurisdictions the defendant's reasonable mistake as to the female's age, although not affecting guilt, may be considered as a mitigating factor when punishment is imposed. I believe that a reasonable mistake of age may be a defense to statutory rape in Alaska, California, New Mexico, and Tennessee. In some other states, such as Oregon, you may raise the defense depending on the age of the victim.

[AHunter3]

Your Honor, it is not our contention that the defendant erroneously thought Ms. Smith was of age. We intend to introduce these items as evidence of the fact that Ms. Smith is of age, that she was not a minor at the time of the event in question, and that therefore my client is not guilty of committing the act of which he is accused.

[RealityChuck]

Well, the old word for rabbit is coney, pronounced cunny, and that's where the word c*nt is believed to have come from (it being, outwardly at least, a small warm furry thing), so...Not so. According to the OED, the "rabbit" term has its first reference in 1290 AD; the other is first mentioned in 1230, and was certainly used before that, since the first mention is the name of a street (Gropec*nt Lane). :D

In addition, the rabbit derives from Spanish and the other animal comes from German.

[Gfactor]

Your Honor, it is not our contention that the defendant erroneously thought Ms. Smith was of age. We intend to introduce these items as evidence of the fact that Ms. Smith is of age, that she was not a minor at the time of the event in question, and that therefore my client is not guilty of committing the act of which he is accused.

Judge: Counsel, this is a poor attempt at the Miracle on 34th Street defense. Are you seriously contending that the victim's admittedly false identification proves that the minor is an adult? I remind you that the prosecution has already introduced a copy of the birth certificate. A certified copy . . .

:dubious:

what was your proffer again? :D

[El Zagna]

I must tell you that I am astonished by what I've read here. There seems to be a fundamental unfairness to it all. What other "strict liability" laws are there?

[jayjay]

Not so. According to the OED, the "rabbit" term has its first reference in 1290 AD; the other is first mentioned in 1230, and was certainly used before that, since the first mention is the name of a street (Gropec*nt Lane). :D

In addition, the rabbit derives from Spanish and the other animal comes from German.

Color me folk-etymologized! I was told the coney/c*nt thing as gospel.

[chula]

I must tell you that I am astonished by what I've read here. There seems to be a fundamental unfairness to it all. What other "strict liability" laws are there?Statutory rape is the big one. The reason why it is a strict liability offense is that it was be very difficult to prove what the defendant knew or thought about the victim's age.

Other strict liability crimes are generally public welfare and safety laws, such as traffic ordinances. They are generally misdemeanors punishable by fines, not jail time. (I believe the Model Penal Code suggests that strict liability crimes should be subject only to civil penalties.)

[Gfactor]

A better way to get the information in front of the jury. . . perhaps:

[The minor has just testified for the prosecution . . .]

Q: Ms. Minor, you have testified that you had sexual relations with Mr. Defensless, right?

A: Yes.

Q: And how old are you?

A: 17.

Q: Have you ever told anyone that you were an age other than 17?

Prosecutor: Objection your honor. The defendant's good faith is irrelevant in prosecutions for statutory rape.

Defense counsel: The prosecutor is right your honor. Good faith is irrelevant. But that's not why I am introducing this evidence. I am offering this evidence to impeach the witness. She has testified for the prosecution, and is subject to cross-examination. One of the primary purposes of cross-examination is to attack the credibility of the witness. Mr. Defenseless has a right under the Sixth Amendment to confront the witnesses against him, and that right would be rendered meaningless if he were not allowed to attack the witnesses credibility by showing that she has previously lied about her age. . . . If she has lied about her age and other basic facts, how are we to take her word for anything?

Judge: Overruled. The witness will answer the question.

A: Yes.

Q: I'm confused, did you not know how old you were?

...

[furt]

Judge: Counsel, this is a poor attempt at the Miracle on 34th Street defense. Are you seriously contending that the victim's admittedly false identification proves that the minor is an adult? I remind you that the prosecution has already introduced a copy of the birth certificate. A certified copy . . .
Your honor, we wish to call those documents into question. Let the jury decide which set of papers they believe.

[Gfactor]

I must tell you that I am astonished by what I've read here. There seems to be a fundamental unfairness to it all. What other "strict liability" laws are there?

http://www.nolo.com/lawcenter/ency/article.cfm/ObjectID/9371DEAF-4C01-4A10-9546ED9CE0148A16/catID/9084D9CE-7259-4AC7-ABAC23333466322C

As Chula said, most of the others are regulatory. Statutory rape is singled out in criminal law classes as an example of a strict liability crime.

In the link above, they mention sale of alcohol to a minor. I actually worked on a case like that before the Liquor Commission in Hawaii. We were the first to raise the "carding" defense. State regulations required licensees (my client was a nightclub) to check identification on patrons. My client did. A minor showed them a fake ID, and was approached by a liquor control officer in the club. We argued, "Hey, we complied with the regulations. He showed us a fake ID. How were we to know?" The commissioners took the argument seriously, but ultimately decided to reject the defense. At least at the time of the case I am referring to, sale of alcohol to a minor was a true strict liability offense.

[BurnMeUp]

Another thought... If you went through tthe troble to ask for a notorized birth certificate and photo ID before the deed, I think that would cast enough doubt in the trial phase that you felt certain of her age. I mean if you truely thought she was legal, why would you ask in the first place. If you had doubts you shouldn't have hit it.

[Gfactor]

Your honor, we wish to call those documents into question. Let the jury decide which set of papers they believe.

Prosecutor: Objection. Hearsay, more prejudicial than probative, these documents have not been authenticated.

Judge: Counsel, who is your foundation witness for these documents? The defendant lacks personal knowledge of the facts involved in the documents' preparation. Will the custodian of records for the office charged with producing these documents be testifying that these are accurate copies of the originals? If not, let's move on with the trial . . .

;)

[Acsenray]

I must tell you that I am astonished by what I've read here. There seems to be a fundamental unfairness to it all.

I suppose there's also a deep cultural feeling that when it comes right down to it, no man can really be fooled into having sex with a minor. If there's any reason to suspect that someone is underage, then the defendant could always have avoided sex. And in a situation in which a guy might really have been fooled, it's most likely a situation in which the defendant didn't know the minor very well. Bottom line, if you're nailing a stranger, you're not going to get sympathy from the law.

What other "strict liability" laws are there?

Others have already addressed this question. I just want to mention that strict liability is much more common in civil law, where it is one of three main kinds of torts (the other two being intentional torts and negligence). Strict liability most prominently applies in cases of product liability. The attitude of product liability law is basically --> you made something faulty, so you're going to be held responsible if something bad happens, no matter what else might have contributed to cause the accident.

[Acsenray]

I must tell you that I am astonished by what I've read here. There seems to be a fundamental unfairness to it all.

I suppose there's also a deep cultural feeling that when it comes right down to it, no man can really be fooled into having sex with a minor. If there's any reason to suspect that someone is underage, then the defendant could always have avoided sex. And in a situation in which a guy might really have been fooled, it's most likely a situation in which the defendant didn't know the minor very well. Bottom line, if you're nailing a stranger, you're not going to get sympathy from the law.

What other "strict liability" laws are there?

Others have already addressed this question. I just want to mention that strict liability is much more common in civil law, where it is one of three main kinds of torts (the other two being intentional torts and negligence). Strict liability most prominently applies in cases of product liability. The attitude of product liability law is basically --> you made something faulty, so you're going to be held responsible if something bad happens, no matter what else might have contributed to cause the accident. In the case of intentional torts, you have to prove the state of mind (intent) and in the case of negligence, you have to prove a breach of duty.

[Hamlet]

Defense counsel: The prosecutor is right your honor. Good faith is irrelevant. But that's not why I am introducing this evidence. I am offering this evidence to impeach the witness. She has testified for the prosecution, and is subject to cross-examination. One of the primary purposes of cross-examination is to attack the credibility of the witness. Mr. Defenseless has a right under the Sixth Amendment to confront the witnesses against him, and that right would be rendered meaningless if he were not allowed to attack the witnesses credibility by showing that she has previously lied about her age. . . . If she has lied about her age and other basic facts, how are we to take her word for anything?

Prosecutor: Your honor, it's clear that defense counsel is attempting to elicit inadmissible evidence under the guise of attacking credibility. This line of questioning would unduly prejudice the jury in violation of clearly established statutes and case law.

Judge: Objection sustained. Move on, defense counsel.

[Kalhoun]

Another thought... If you went through tthe troble to ask for a notorized birth certificate and photo ID before the deed, I think that would cast enough doubt in the trial phase that you felt certain of her age. I mean if you truely thought she was legal, why would you ask in the first place. If you had doubts you shouldn't have hit it.
I remember hearing stories about a football player who would videotape his women saying that they were of age and consented to sex with him. He didn't want any lawsuits coming up after the fact. I don't know how true it was, but it seemed like a good idea at the time.

[chula]

Others have already addressed this question. I just want to mention that strict liability is much more common in civil law, where it is one of three main kinds of torts (the other two being intentional torts and negligence). Strict liability most prominently applies in cases of product liability. The attitude of product liability law is basically --> you made something faulty, so you're going to be held responsible if something bad happens, no matter what else might have contributed to cause the accident. In the case of intentional torts, you have to prove the state of mind (intent) and in the case of negligence, you have to prove a breach of duty.Strict liability in torts is really not relevant and is liable to confuse people. I think everyone understands that sometimes you can be forced to pay monetary damages even when you did not intentionally harm the person. What strikes people as unfair is that you can be convicted of a crime you didn't intentionally, or even knowingly, commit. For the vast majority of crimes, you must have a guilty mind (mens rea) to be considered guilty.

Did you by any chance just finish your first year of law school? You can spot a 1L a mile away. :)

[chula]

Prosecutor: Your honor, it's clear that defense counsel is attempting to elicit inadmissible evidence under the guise of attacking credibility. This line of questioning would unduly prejudice the jury in violation of clearly established statutes and case law.

Judge: Objection sustained. Move on, defense counsel.I agree with you. Lying about your age is considered a "white lie" and therefore of little impeachment value, which is clearly outweighed by the obvious attempt to prejudice the jury.

[Acsenray]

Did you by any chance just finish your first year of law school?

No, I finished my first year of law school about seven years ago. Apparently, I come off as a greenhorn, though.

You can spot a 1L a mile away. :)

Reminds of the time I asked one of my female acquaintances whether she was pregnant and it turned out that it was just her loose summer dress billowing outward a bit. I felt a bit of an ass then and I do this time as well.

[Gfactor]

Prosecutor: Your honor, it's clear that defense counsel is attempting to elicit inadmissible evidence under the guise of attacking credibility. This line of questioning would unduly prejudice the jury in violation of clearly established statutes and case law.

Judge: Objection sustained. Move on, defense counsel.

:D


Hamlet, do the cases and statutes really say that the evidence is inadmissible, or do they say that it is not relevant as a defense. I suspect it is the latter, in which case I doubt the objection would be sustained. The judge, after all, will be instructing the jury that the defendant's state of mind is not to be considered. Where is the prejudice?

chula, again, how is the jury being prejudiced? And lying about your age in order to induce someone to have illlegal sex with you? I'm not so sure it is a white lie. Possessing a fake ID is a crime, and hence, quite serious. This is not a case of false modesty, but deception, fraud even.

I could see a judge going either way on it.

[chula]

No, I finished my first year of law school about seven years ago. Apparently, I come off as a greenhorn, though.In that case, my sincere apologies for teasing you. It just sounded like something a 1L would do - hear the words "strict liability" and start talking about torts, since that's the class where you hear the term the most.

[chula]

chula, again, how is the jury being prejudiced? And lying about your age in order to induce someone to have illlegal sex with you? I'm not so sure it is a white lie. Possessing a fake ID is a crime, and hence, quite serious. This is not a case of false modesty, but deception, fraud even.

I could see a judge going either way on it.First of all, the question in your example was if she had ever lied to anyone about her age. In my opinion, the fact that someone has lied about their age does not increase the likelihood that she is lying while under oath about having sex with someone. In terms of prejudice, it is very clear that the attorney is asking the question in order to get evidence before the jury that they are not allowed to take into consideration when deciding the guilt of the defendant. Sure, in real life the judge has a lot of discretion in these matters and could decide either way. IMO, the judge should not allow the defense attorney to get away with such an obvious stunt.

[El Zagna]

Strict liability in torts is really not relevant and is liable to confuse people. I think everyone understands that sometimes you can be forced to pay monetary damages even when you did not intentionally harm the person. What strikes people as unfair is that you can be convicted of a crime you didn't intentionally, or even knowingly, commit. For the vast majority of crimes, you must have a guilty mind (mens rea) to be considered guilty.

Did you by any chance just finish your first year of law school? You can spot a 1L a mile away. :)Since it was my question he was answering let me say that I didn't find it confusing at all. In fact it helped me to make sense out of the whole term. Strict liability in civil matters makes sense, but in criminal matters it strikes me as pure idiocy.

I never ceased to be amazed by what I learn in any of these statutory rape threads. The entire area of law seems to turn logic on its head.

[Gfactor]

First of all, the question in your example was if she had ever lied to anyone about her age. In my opinion, the fact that someone has lied about their age does not increase the likelihood that she is lying while under oath about having sex with someone.

Ok. That's what we call a foundation question. It makes for a nice transition and allows for objections and whatnot to be resolved on a low point in the presentation. Then after the judge has ruled and the jury is paying attention again, you can ask more dramatic questions. And what would someone have to lie about for you to doubt her credibility? If she lied to the defendant about her age, it was a very important fact to the defendant. The defendant's freedom depended on it.

the attorney is asking the question in order to get evidence before the jury that they are not allowed to take into consideration when deciding the guilt of the defendant

Again, not so. Mistake is not a defense. Therefore evidence of misrepresentation of age is not relevant for that purpose. However, the jury must consider witness credibility in deciding the guilt of the defendant. Guilt must be beyond a reasonable doubt. If evidence is relevant for one purpose and not for another, it may be admitted for the purpose to which is is relevant. (http://www.law.cornell.edu/rules/fre/rules.htm#Rule105) And the introduction of prior inconsistent statements of witnesses is a classic method of impeachment (http://www.law.cornell.edu/rules/fre/rules.htm#Rule613).

It is the jury's job to weigh the evidence and assess credibility. If the star witness deceived the defendant about her age or showed a false ID, why should the jury not find out about it?

obvious stunt.

Some people see the "stunt" as offering no defense based upon good faith belief. It is in the eye of the beholder. You can't make out a case for prejudice merely by showing that your case is worse off after the introduction of the evidence than it was beforehand--that's relevance. If the evidence didn't hurt your case, why would I want to introduce it?

[Mr. Slant]

My suggestion to an individual genuinely concerned with strict liability for this particular crime is as follows:
1. Meet the young lady's mother.
2. Ask mom the date of her daughter's birth. Ask to see baby pictures while you're at it, every mom I ever met was happy to oblige...

[Bricker]

Some fertile minds at work here!

OK, there are two rationales being offered above for the admission of the victim's fake ID and phony birth certificate: first, to the extent that they go to establishing the victim's true age, which negates an element of the crime; second, to the extent that they have some impeachment value.

Unfortunately for those who lust after the Diana Degarmos of the world, neither one holds water.

As GFactor points out, if the documents are offered to prove that the victim is in fact over the age of consent, then they are out-of-court statements offered in evidence to prove the truth of the matter asserted in the statements. That is the classic definition of hearsay. Admission of any document, hearsay or otherwise, also requires foundational testimony concerning its authenticity, usually by the records custodian or other person authorized to make the certification.

So you can't admit the phony driver's license or birth certificate into evidence for the purpose of proving that what they say is correct, because you cannot authenticate them.

How about the second idea - impeaching the witness by showing she lied about her age?

A prior inconsistent statement is admissible as an exception to the hearsay rule, but it must have been made under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition.

But can we just offer into evidence the fact that she lied about her age to the accused, for the inference that she's lying now about the sex that took place? In other words, she lied about her age, so she's more likely to be lying to the jury now.

Not likely.

As both Hamlet and chula suggest, the probative value of this is slight -- especially if the girls' testimony is cumulative to other evidence. It might be a closer question if the case is literally a "He said - she said," affair with the only evidence of the sex act being the accusation of the victim, but in general the prejudicial value of the evidence will outweigh the probative, and it will be properly excluded.

- Rick

[Acsenray]

I never ceased to be amazed by what I learn in any of these statutory rape threads. The entire area of law seems to turn logic on its head.

As I said, there might be a fundamental belief that nobody truly can be tricked into sleeping with a minor. And if he truly was, then there were probably circumstances that should have made him think twice (like maybe I shouldn't be sleeping with such a complete stranger).

From the point of view of the law, the harm is so detrimental that it doesn't matter whether the defendant "meant" to do it. The law sets up a situation in which an individual has an incentive to err in favour of avoiding sex in such situations.

[chula]

If evidence is relevant for one purpose and not for another, it may be admitted for the purpose to which is is relevant. (http://www.law.cornell.edu/rules/fre/rules.htm#Rule105)Yes, and relevant evidence may be excluded at the discretion of the judge "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury," which is obviously the issue I was referring to.

And the introduction of prior inconsistent statements of witnesses is a classic method of impeachment (http://www.law.cornell.edu/rules/fre/rules.htm#Rule613).Previously lying about her age is an example of using a specific instance of conduct that tends to show the witness's character for truthfulness (Rule 608(b)). A prior inconsistent statement is what you present when you want to call into question whether the witness is telling the truth now about a matter that is material to the case. (E.g., "You claim you had sex with the defendant?" "Yes." "Didn't you tell the police that night that no sex took place?") Here, her age is established by documentary evidence, not her testimony, so prior statements about her age are not relevant.

[Gfactor]

A prior inconsistent statement is admissible as an exception to the hearsay rule, but it must have been made under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition.



[Slight quibble] There are really two prior inconsistent statement rules. The one that most lawyers are most familiar with is the one that creates an exception to the hearsay rule. A prior inconsistent statement may be introduced to prove the truth of the matter asserted if it was made under oath. Obviously that's not the case here.

The second rule, the one I mentioned and cited (discussed in Federal Rule 603) deals permits impeachment with a prior inconsistent statement. In other words, using the inconsistent statement not to prove that it was true, but to prove that the person who made it has said different things at different times, and is therefore not credible. Though it would be nice to be able to introduce the evidence to establish that the minor really was 21, as she told the defendant, her statement was not made under oath, and would not be admissible for that purpose (we don't really have a fixed hypothetical anymore, but I'm assuming she didn't lie at the prelim or something). Therefore, we can only use the statements (if we can use them at all) to attack her credibility.[/slight quibble]

Again, we have no fixed hypothetical, so I am making assumptions, but I am assuming that there is no physical evidence of the sex. I am also assuming that they were not discovered in flagrante delicto. Maybe there were some statements made by the defendant, but I'm betting that the key evidence that sex happened is the minor's testimony. Others might be testifying that she told them about the sex, but there are probably no other witnesses with firsthand knowledge. So her credibility could be crucial. If her testimony were cumulative, then her credibility would not be as important, and the prejucial/probative calculus would be different.

[El Zagna]

2. Ask mom the date of her daughter's birth. Ask to see baby pictures while you're at it, every mom I ever met was happy to oblige...

Yeah, right. "Well, Okey-dokey, Mrs. Jones, so your daughter's 17, eh. I just wanted to get that straight before I tried to fuck her!!!" :eek: Boy, that'll endear you to the folks.

Can't you just see the Jonses standing at the door as they proudly watch their baby walk out to the car with her new friend. "Oh, my," they say, "What a responsible young man he must be to think ahead like that before trying to fuck our daughter!!!" :eek:

But wait. How do yo know the parents aren't lying? Maybe the girl is 21 but the parents tell everyone she's 16 in an attempt to keep her out of trouble. Or maybe she really is 16 and her parents tell you she's 17 because they know that your dad has lots of money and they are hoping you'll do the deed so they can pressure him for some money to keep from pressing charges.

These laws are idiotic.

[Gfactor]

Yes, and relevant evidence may be excluded at the discretion of the judge "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury," which is obviously the issue I was referring to. [\QUOTE]

Right. But you still have not explained how unfair prejudice might occur.

[QUOTE] Previously lying about her age is an example of using a specific instance of conduct that tends to show the witness's character for truthfulness (Rule 608(b)). A prior inconsistent statement is what you present when you want to call into question whether the witness is telling the truth now about a matter that is material to the case. (E.g., "You claim you had sex with the defendant?" "Yes." "Didn't you tell the police that night that no sex took place?") Here, her age is established by documentary evidence, not her testimony, so prior statements about her age are not relevant.

I bet the prosecutor asks her her age on direct. And if she testifies about it on direct, she can be cross-examined about it, even if other evidence corroborates her testimony. But even so, 608(b) permits the examination I proposed

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

In other words, it's up to the judge unless you are trying to prove the inconsistent statements with other witnesses or documents. Asking her about it while she is on the stand is permissible, but the judge can say no. Which the judge could do anyway.

[chula]

Right. But you still have not explained how unfair prejudice might occur.You don't see how a jury might be confused and misled if they were presented with evidence that she told the defendant she was not a minor? It seems pretty clear from this thread that the typical lay person would consider such evidence as evidence of the defendant's innocence. The judge will instruct the jury that what the defendant believed about her age not relevant, but if the judge believes the jury is likely to take it into account anyway, then s/he should not allow it. If the witness does have a propensity for dishonesty, the defense should be able to come up with an instance of lying that does not risk introducing otherwise inadmissible evidence.

[The Asbestos Mango]

Hmmm.

This looks like a job for jury nullification.

Yes, in this country, a jury does have the constitutional right to aquit a defendant if they believe the law is wrong.

Seems to me that in cases where girls looked quite a bit older than their ages, juries could say, "hell, she looks twenty-five." and acquit based on the idea that it is wrong for the law to hold someone liable for a crime in the case of mistake of fact (i.e., the victim's age.)

Of course being as how the reasonable belive that the "victim" was over the age of consent isn't even admissable as evidence, this could be problematic.

[Siddhartha Vicious]

How many of you are lawyers, anyway?

[Siddhartha Vicious]

How many of you are lawyers, anyway?


Eep. That was much, much snarkier than I had intended it. I'm genuinely curious about how many of you are lawyers.

[Shade]

Isn't tricking someone else into committing a crime illegal? I'd say obviously, but I expect I'm missing subtlies. In how hot water would said girl be? <analogy>a minor faked a [deed to some property] based on which a man [used it in good faith but in doing so commited a strict liability something]</analogy>

[Bippy the Beardless]

Similar to Shade's last point, would there be a viable civil case against a girl whom lied about being over age formable by the defendant in this case. Also the 'don't sleep with strangers' vibe coming from some posters here is crazy, how many people that you know well do you actually know the age of (seen their birth certificate etc.) An 18 year old who goes out with a person a year ahead of them at their school could ask them and be told they are 19 and never susspedt that person had skipped two years ahead, and just lied to keep from seeming the odd one out in class.

[hajario]

In addition, the rabbit derives from Spanish and the other animal comes from German.

I think that you have that backwards. I don't speak German but the Spanish word for rabbit is conejo.

Haj

[I Love Me, Vol. I]

OK. Here's my "what if"

What if a man and a woman (girl) were legally married, but the girl submitted false documents showing her age to be say, 21 when she was actually 17 and the clerk (or whomever) was fooled by these fakes and issued a marriage license.

So at this point both the husband and the State have been successfully fooled. Are they married? If they have sex is it statutory rape? What if the age of consent is 18 but the legal age of marriage is 16? (Is that even possible?)

[Acsenray]

Hmmm.

This looks like a job for jury nullification.

Yes, in this country, a jury does have the constitutional right to aquit a defendant if they believe the law is wrong.

It's not my understanding that this is the case. As I understand it, jury nullification is not a legal doctrine. Juries are not allowed to object to the law. The trick, though, is that a jury's verdict of not guilty may not be appealed in a criminal case. So, if a jury decides to acquit in the face of evidence that the defendant committed the acts that are defined as punishable under the law, no one can effectively do anything about it. Jury nullification is more a byproduct of our system of jurispudence rather than a "constitutional right" possessed by members of a jury.

[Acsenray]

An 18 year old who goes out with a person a year ahead of them at their school could ask them and be told they are 19 and never susspedt that person had skipped two years ahead, and just lied to keep from seeming the odd one out in class.

In many states, the statutory rape law includes some sort of "buffer zone," (such as a "tolerance" of four years' difference in age) such that if the age of consent is 18, the minor is 17 and the defendant is 19, then there's no violation.

[Bippy the Beardless]

In many states, the statutory rape law includes some sort of "buffer zone," (such as a "tolerance" of four years' difference in age) such that if the age of consent is 18, the minor is 17 and the defendant is 19, then there's no violation.
But then that just goes that an 18 to 21 year old would be 'magically' innocent, but a 22 year old wouldn't.
Reading this thread I'm kind of glad I always had an eye for slightly older women.

[Gfactor]

You don't see how a jury might be confused and misled if they were presented with evidence that she told the defendant she was not a minor? It seems pretty clear from this thread that the typical lay person would consider such evidence as evidence of the defendant's innocence. The judge will instruct the jury that what the defendant believed about her age not relevant, but if the judge believes the jury is likely to take it into account anyway, then s/he should not allow it.

Every good trial lawyer knows and takes advantage of the fact that juries misuse evidence. Most appellate cases on point (at least the ones that I have read) say:

1. The law assumes that juries follow judges' instructions; and
2. This goes double for defendants in criminal cases

I have argued this issue to death in the courts of a few states, both in favor of and against admissibility. The usual outcome is that the judge will err in favor of admitting the evidence. Of course, YMMV.

If the witness does have a propensity for dishonesty, the defense should be able to come up with an instance of lying that does not risk introducing otherwise inadmissible evidence.

I agree that, in a perfect world, the defense should be able to find someone who would testify that the witness was a big fat liar, or a perjury conviction, or something. But the investigative tools that are available to the prosecution (especially guys in uniforms and grand jury subpoenas) are not available to the defense. It's hard to get that kind of evidence without these tools. So as a mentor of mine once told me, you gotta dance with what you brought. If that was all I had, you can bet I would at least consider using it. And remember the key rule of evidence. A piece of evidence is not inadmissible until you offer it, you opponent objects, and the judge sustains the objection. It's worth a try.

Here is a risk that nobody has mentioned. If the witness lies on the stand when I ask her that question (and she might, especially if she really is dishonest :D ), I probably cannot put on a witness to contradict her. So I would need to evaluate that issue before I do so.

Regarding nullification. Here is a recent thread (http://boards.straightdope.com/sdmb/showthread.php?t=239264) on the topic.

[chula]

I'm not saying I wouldn't try it as the defense attorney, just that I wouldn't allow it as the judge.

[Mr2001]

I never ceased to be amazed by what I learn in any of these statutory rape threads. The entire area of law seems to turn logic on its head.
I agree with that second part, but I'm no longer amazed to find that sex laws and/or age laws in the US violate common sense.

We've heard earlier in the thread that sex with a minor is a "strict liability" crime in most states. Does anyone know how it's treated in other countries, e.g. Canada and the UK?

[Gfactor]

Does anyone know how it's treated in other countries, e.g. Canada and the UK?

In Canada, it appears that mistake is a defense "if the accused took all reasonable steps to ascertain the age of the complainant (http://www.ageofconsent.com/canada.htm)."

A similar rule seems to apply in the UK (http://www.ageofconsent.com/unitedkingdom.htm).

I'm not a lawyer in those countries, so this is really just an educated guess.

[Bear_Nenno]

But then that just goes that an 18 to 21 year old would be 'magically' innocent, but a 22 year old wouldn't.
Reading this thread I'm kind of glad I always had an eye for slightly older women.
Oh, it gets better than that. In Florida, a 23 year old who has sex with a 16 year old has not committed a crime. But the 16 year old who has sex with a 15 year old is a felon!!
Or get this: If you're 23 and you're having sexual relations with a 16 year old, you're good and legal. But once you turn 24, you have to wait until she is 18 to have sex again!! So, say if you met when she was 16 and you had been having sex for a year. Then, you turn 24 and she turns 17, even though you had already been having sex for a year, you'll have to sit it out for the next 12 months until she is 18. HA!

These laws are fun!

[Mr2001]

These laws are fun!
Unless you're the one who has to go to jail and tell his neighbors he's a sex offender because of some girl with a fake ID, of course.

[Mr. Excellent]

Another thought... If you went through tthe troble to ask for a notorized birth certificate and photo ID before the deed, I think that would cast enough doubt in the trial phase that you felt certain of her age. I mean if you truely thought she was legal, why would you ask in the first place. If you had doubts you shouldn't have hit it.

I disagree. It's not a matter of "doubts", it's a matter of simple common sense. For example, I know a girl at my school who's a year ahead of me, but is actually 18. *shrugs* Don't know how that worked, exactly, but that's the case. Further, she looks like she's in her early 20s. So, say I'd met her last year, when I was 19 and she was 17. If I'd asked her what year she was, she would have told me she was a year ahead of me. I'd have assumed - and in most cases, this would have been reasonable - this meant that she was also either a year older than me, or at least my age. It would *never* have occured to me that she might be underage. And if I'd slept with her, I'd have committed statutory rape.

This is rather an extreme example, but it does make my point, I think. Even if circumstances and appearance are such that you haven't a doubt the person is legal, asking for ID does make a degree of sense. I will admit, however, that it would tend to ruin the mood.

[Mr. Excellent]

Similar to Shade's last point, would there be a viable civil case against a girl whom lied about being over age formable by the defendant in this case. Also the 'don't sleep with strangers' vibe coming from some posters here is crazy, how many people that you know well do you actually know the age of (seen their birth certificate etc.) An 18 year old who goes out with a person a year ahead of them at their school could ask them and be told they are 19 and never susspedt that person had skipped two years ahead, and just lied to keep from seeming the odd one out in class.

Oops. Beardless or not, Bippy, you made my point for me. I should have read the *whole* thread before posting, it seems. :wally :)

[Steve MB]

In FLorida, such evidence is not even admissable. You cannot tell the jury that she had a fake ID or that you met her in a club.

I suppose a defense lawyer could get around this by forcing the prosecution to prove that the official records rather than the fake ID indicated her true age -- both documents would clearly be relevant evidence concerning that issue -- and hope for jury nullification. Weak, but probably the best strategy you've got if the case actually goes forward.

[1010011010]

The ID was issued by the state of residence... on a forged birth certificate. It's not a "fake ID" in the usual sense.

Anyway, it sounds like jury nullification is your only hope if you end up in court... because even if the minor has the ability to look 25, the prosecution is probably going to put her in pigtails before she goes on the stand.

The rabbit hole is an Alice in Wonderland / Through the Looking Glass reference, and you all know it. Though the subtopic is interesting.

What about the roommates? No one has addressed their fates.

[hammerbach]

I'm not saying I wouldn't try it as the defense attorney, just that I wouldn't allow it as the judge.
How do I nominate this for "Potential sig of the week"?

[Gfactor]

Isn't tricking someone else into committing a crime illegal?

Well, tricking them into doing it doesn't happen all that often. Depending on the fact pattern, it might be fraud. But there are three common forms of crime that deal with this situation: Solicitation, conspiracy, and complicity.

If you ask someone to commit a crime, or suggest it, you may be guilty of solicitation. If you plan the crime with the person, and maybe do some of it, too, or benefit from it you are guilty of conspiracy. And if you help them with the crime, you are an accomplice (or an accessory).

The problem in the case of statutory rape is that generally none of these doctrines apply to a person who is to be protected from the crime in question. So you can't charge the minor with soliciting statutory rape, or conspiracy to commit it, or being an accomplice. That makes sense.

OTOH, forgery is a crime; so is knowing possession of forged documents. Defrauding a public official in order to get false identification documents is a crime. Altering a driver's license is a crime, too.

Ok, here is an example from the law school casebooks involving people being tricked into committing a crime:

Husband invites three friends over. He tells them that his wife has a rape fantasy--she will protest, but really wants them to have sex with her. The men (who are drunk) go into the bedroom and have sex with the wife. She protests (for real--she has no rape fantasy) but they overcome her and have sex with her.

Husband is convicted of rape, despite the fact that the rape statute excludes husbands from prosecution for raping their wives.

How about the three dupes? It depends on the reasonableness of their belief that the wife really was consenting.

[Gfactor]

Ok, here is an example from the law school casebooks involving people being tricked into committing a crime:

Husband invites three friends over. He tells them that his wife has a rape fantasy--she will protest, but really wants them to have sex with her. The men (who are drunk) go into the bedroom and have sex with the wife. She protests (for real--she has no rape fantasy) but they overcome her and have sex with her.

Husband is convicted of rape, despite the fact that the rape statute excludes husbands from prosecution for raping their wives.

How about the three dupes? It depends on the reasonableness of their belief that the wife really was consenting.

:smack: :smack: :smack: :smack: :smack: :smack:

Scratch that. I got the procedural pattern totally wrong. Husband was not charged, and so the case is totally irrelevant to our discussion. Forget I mentioned it. But here is a link (http://law.anu.edu.au/criminet/trape.html) to an article that discusses it. The case is Morgan. I also note that in addition to being wrong about the procedural posture of the case, I failed to remember that it was an English case. I need caffeine.

[Little Nemo]

Having stirred up a legal tempest once, let me do so again. Many states (don't know if Florida is among them) have gender neutral sex crime laws. Assuming a state has strict liability gender neutral statuatory rape laws, if a 16 year old male raped a 24 year old woman, couldn't she be charged with statuatory rape? She did after all indisputably have sex with a minor.

[Gfactor]

If a 16 year old male raped a 24 year old woman, couldn't she be charged with statuatory rape? She did after all indisputably have sex with a minor.

Now you are thinking like a law professor.

The short answer, however, is no. The act doesn't count if it is involuntary. Most courts would treat this as a case where there was "no act."

[Bippy the Beardless]

Unless you're the one who has to go to jail and tell his neighbors he's a sex offender because of some girl with a fake ID, of course.
Can you get Whooooshed for missing sarcasm, if so I think Mr2001 just got Royally Whooooshed :)

[Bippy the Beardless]

Why havn't the laws changed to state that this is not a Strict Liability offence, but one where deffence requires the accused to show they took every reasonable precaution to ensure the person the slept with was over age, such that no reasonable person would be expected to act differently.
If you meet someone who looks 25 in an over 21 bar, s(he) tells you about his/her job, and then drives you to his/her appartment. It shouldn't be possible to be found guilty when it turns out he/she is 17 and has borrowed the keys to an older siblings appartment and vehicle and talked about the older sibling's job...
Clearly the above would be a remarkably unlikely thing for a 17 year old to be mature enough to do, but it is not beyonde possibility that a younger sibling might be so much in awe and jellosy of an older sibling's lifestyle that they may want to live it for a day or two given an unexpected opportunity.
Any law that is blind to the facts arround the case is IMHO an inherrantly unjust law.

[Acsenray]

I don't think that question has an easily found factual answer. It invites speculation.

Well, obviously, the laws haven't been changed because not enough people have pushed for legislative change. There probably is not enough feeling among the general public (or legal scholars) that there is actually any injustice being committeed with regard to these laws.

Why might that be? Well, prosecutors have discretion to bring criminal charges. Maybe charges are not being brought in many cases in which the circumstances are complex. Maybe in such cases that are prosecuted, people in the whole don't feel that an injustice has been done. It's hard to support any of this factually, of course.

The United States is still a rather conservative country when it comes to certain things. Perhaps, as I mentioned before, the public as a whole doesn't feel much sympathy in such cases. I don't think that any member of the public or, especially, any elected official, who stands up and says that he or she thinks that defendants in statutory rape cases are getting a raw deal is going to get much of a following.

Maybe your question is why haven't courts overturned such laws on the basis of unconstitutionality? Well, I don't know. Off the top of my head, I can't come up with any constitutional reasons to strike down such a law. Make a constitutional argument and we'll see where the discussion goes.

[Mr2001]

Can you get Whooooshed for missing sarcasm, if so I think Mr2001 just got Royally Whooooshed :)
Heh, I didn't miss it, just thought we could use a reminder of how these quirky little twists in the law can ruin people's lives. Carry on.

[paperbackwriter]

The United States is still a rather conservative country when it comes to certain things. Perhaps, as I mentioned before, the public as a whole doesn't feel much sympathy in such cases. I don't think that any member of the public or, especially, any elected official, who stands up and says that he or she thinks that defendants in statutory rape cases are getting a raw deal is going to get much of a following.

I would go further than that, actually. Over the last few years, statutory rape has become a higher-profile issue, and investigations and prosecutions are now widely reported and praised. Many police departments have units or officers assigned to sting "internet predators". Amber Alerts, Megan's Laws, and the Child Pornography Prevention Act of 1996*, all point to a society that is more likely to support strict liability for statutory rape, not oppose it.

Imagine that you are a politician and you ignore acsenray and say that these defendants are getting a raw deal.

Who are you appealing to? Strict civil libertarians? The leftover remnants of the "Sexual Revolution," who now have children of their own? 18 to 24 year old males who don't (generally) vote anyway? And you risk offending just about the entire rest of society.

*This law criminalized any "visual depiction that is, or appears to be, a minor engaging in sexually explicit conduct." The Supreme Court struck this down in Ashcroft v. Free Speech Coalition, but also praised the intent of the law.

[tanookie]

Sorry for the hijack - this thread is a fascinating read and there is no way I could add anything intelligent to it - but since his email is private I'm taking this opportunity to poke Paperbackwriter and tell him he is requested here. (http://boards.straightdope.com/sdmb/showthread.php?p=4884786)

[DocCathode]

I agree with Paperbackwriter. I don't think the laws on statutory rape will change anytime soon.

I don't think different states having differing ages of consent helps matters either.

[Mr. Excellent]

Maybe your question is why haven't courts overturned such laws on the basis of unconstitutionality? Well, I don't know. Off the top of my head, I can't come up with any constitutional reasons to strike down such a law. Make a constitutional argument and we'll see where the discussion goes.

Mind if I take a stab at it? I'm not a lawyer, but this is fun. :)

Well, we have a Sixth Amendment right to confront witnesses against us, right? And the purpose of that confrontation is fundamentally to either impeach the witness, or ellicit information that weakens the case of the prosecution. So couldn't the argument be made that "strict liability" laws which don't allow you to ask questions of the complainant like "Didn't you show me a liscence that said you were 18?" consitutes such a grievous restriction on your right to confront a witness against you that it defeats the intent of the sixth amendment?

[Captain Gutgore Blooddrink]

What if the minor in question had several professionally done tattoos in a state that only allowed 18 or older to get body art. Would that be admissible as evidence?

Also, these cases stated above they all deal with underage girls. Do things generally change in court if the guy was 17 and the girl was 26? I've known a few high school guys who were 17 that didn't get carded about half the time. If the guy is a hulking 6'3 17 year old athlete with a full-beard, how would the jury consider that? Is there any difference?

[LuckySevens]

Slight hijack:

is Statutory rape what Kobe Bryant is being charged with?

[TeaElle]

is Statutory rape what Kobe Bryant is being charged with?
No, the alleged victim in Colorado v. Bryant was 19 years old at the time of the incident at issue. The charge pending is felony sexual assault.

[danceswithcats]

PA Crimes Code §3102. Mistake as to age. Except as otherwise provided, whenever in this chapter the criminality of conduct depends on a child being below the age of 14 years, it is no defense that the defendant did not know the age of the child or reasonably believed the child to be the age of 14 years or older. When criminality depends on the child's being below a critical age older than 14 years, it is a defense for the defendant to prove by a preponderance of evidence that he or she reasonably believed the child to be above the critical age.

[DocCathode]

I thought the age of consent here in the Keystone State was 16. Is it 14 or do the laws just not deal as harshly if the minor is 15?

[Bear_Nenno]

Since the snip mentions "critical age of 14 years or older" I'd wager that your are correct about the AoC being 16. It seems, though, that it's no longer a strict liability crime for victims over 14.
Seems like a good idea if you ask me. One could argue that a 15 year old looked 19.... but a 12 year old?

[danceswithcats]

I thought the age of consent here in the Keystone State was 16. Is it 14 or do the laws just not deal as harshly if the minor is 15?

§ 3122.1 Statutory sexual assault. Except as provided in section 3121 (relating to rape), a person commits a felony of the second degree when that person engages in sexual intercourse with a complaintant under the age of 16 years and that person is four or more years older than the complaintant and the complaintant and the person are not married to each other.

The PA legislature has been working on this for a few years, DocCathode. A few years ago, a married couple was restricted from dancing the nasty in whatever form they wished were they of tender age.

Yup, it's legal to boink at 13 in PA, just be close enough in age that the phrase, "Who's your Daddy?" doesn't take on evil connotations. :eek:

And you folk thought PA was about horses and buggies and shoo-fly pie. :p

Brings to mind the joke about the Amish fellow at a honeymoon motel

[SlyFrog]

Again, not so. Mistake is not a defense. Therefore evidence of misrepresentation of age is not relevant for that purpose. However, the jury must consider witness credibility in deciding the guilt of the defendant. Guilt must be beyond a reasonable doubt. If evidence is relevant for one purpose and not for another, it may be admitted for the purpose to which is is relevant. (http://www.law.cornell.edu/rules/fre/rules.htm#Rule105) And the introduction of prior inconsistent statements of witnesses is a classic method of impeachment (http://www.law.cornell.edu/rules/fre/rules.htm#Rule613).

It is the jury's job to weigh the evidence and assess credibility. If the star witness deceived the defendant about her age or showed a false ID, why should the jury not find out about it?


I assume you are presenting all of this with the presupposition that whether the defendant slept with the witness is in question. Otherwise, what other statement from the witness are you trying to show as tainted?

[SlyFrog]

Now you are thinking like a law professor.

The short answer, however, is no. The act doesn't count if it is involuntary. Most courts would treat this as a case where there was "no act."

The issue is mens rea, the criminal intent necessary, along with criminal act, to have a crime. Mens rea is a somewhat flexible doctrine, but in cases of strict liability, you must still intend the act (e.g. intending to have sex itself, not necessarily intending to have sex with someone who is underage).

I agree that this is the issue with this example. I believe there is a biblical equivalent often cited in law texts and law school classes of the roofer who fell off a roof and sexual penetrated a woman by accident. This does not constitute rape, even though the woman did not consent to penetration, because there was no intentional act of penetration.

[danceswithcats]

I believe there is a biblical equivalent often cited in law texts and law school classes of the roofer who fell off a roof and sexual penetrated a woman by accident. This does not constitute rape, even though the woman did not consent to penetration, because there was no intentional act of penetration.

Hi! Sorry to take you by surprise, Ma'am, and thanks for allowing me inside. :eek: While we're here, could I interest you in a continuous ridge vent? :p You look like a lady whose flashing needs to be caulked-how long has it been since you've had a proper caulking? ;)

[Gfactor]

I assume you are presenting all of this with the presupposition that whether the defendant slept with the witness is in question. Otherwise, what other statement from the witness are you trying to show as tainted?

The elements of a crime are almost always in issue at a trial. I am assuming the defendant did not take the stand and admit that he slept with her, at least during the prosecution's case. And I am assuming his lawyer did not admit the act during open statements.

If the defendant admits that he slept with the minor, and there is no freaky situation (e.g., she was dead at the time, he was forced to do it at gunpoint, it was an accident, he's legally insane, etc.), he'd be well-advised to cop a plea, if he can bargain for a reduced charge or a better sentence.

The issue is mens rea, the criminal intent necessary, along with criminal act, to have a crime. Mens rea is a somewhat flexible doctrine, but in cases of strict liability, you must still intend the act (e.g. intending to have sex itself, not necessarily intending to have sex with someone who is underage).

I agree that this is the issue with this example. I believe there is a biblical equivalent often cited in law texts and law school classes of the roofer who fell off a roof and sexual penetrated a woman by accident. This does not constitute rape, even though the woman did not consent to penetration, because there was no intentional act of penetration.

Right, and courts in many states address this type of mens rea requirement under the "no act" doctrine, rather than as part of the mens rea. This does raise a few more interesting hypotheticals though . . .

1. Minor sneaks into man's bedroom at night and pretends to be his wife. He is not mistaken about her age, but her identity.

2. Same hypo but the man has sex with her but while half asleep, a practice he routinely engages in with his wife.

3. Man has a morning erection, she has sex with him, he is oblivious.

Well, that's enough for this early in the morning.

[SCSimmons]

I believe there is a biblical equivalent often cited in law texts and law school classes of the roofer who fell off a roof and sexual penetrated a woman by accident.

Geez, I worked as a roofer for years, and nothing like that ever happened to me. Some guys have all the luck.

Or not, I suppose. Depends how high the roof was.

(Once again, I am resisting the urging of my sense of decency that I hide my signature in posting to this thread.)

[SCSimmons]

And then I forget to check the sig display, which I recently changed to default to 'no'. Dangblastit!

[alaricthegoth]

:D


Hamlet, do the cases and statutes really say that the evidence is inadmissible, or do they say that it is not relevant as a defense. I suspect it is the latter, in which case I doubt the objection would be sustained. The judge, after all, will be instructing the jury that the defendant's state of mind is not to be considered. Where is the prejudice?

chula, again, how is the jury being prejudiced? And lying about your age in order to induce someone to have illlegal sex with you? I'm not so sure it is a white lie. Possessing a fake ID is a crime, and hence, quite serious. This is not a case of false modesty, but deception, fraud even.

I could see a judge going either way on it.

The documents cannot come through the back door of impeachment re:credibility because the victim's credibility is not an issue in a prospective defense of good faith error....the only affirmative proposition on which her credibility might be an issue is the corpus itself, which is conceded for purposes of what I suppose is a mens rea (not) defense.

[Gfactor]

The documents cannot come through the back door of impeachment re:credibility because the victim's credibility is not an issue in a prospective defense of good faith error....the only affirmative proposition on which her credibility might be an issue is the corpus itself, which is conceded for purposes of what I suppose is a mens rea (not) defense.

Huh? I think we have established that good faith error is not a defense. So my examples certainly assumed that the defense, being unavailabe, was not being asserted. We were discussing ways of getting false representations into evidence despite the lack of such a defense.

[ouryL]

Is being a victim of fraud a sufficient argument against statutory rape?

Not of the "Well, I met her in a bar and she was drinking, so I guess she had to be 21, right?" variety. I'm talking that you've done the improbable and asked for picture identification and a notarized copy of her birth certificate... all establish her age as 21... but they're all forgeries, and she's really 15. Better yet, just the birth certificate is a forgery. The drivers liscense she showed you was real, issued by your state of residence, on the forged birth certificate. Is there any point at which you cease to be liable... or are you subject to the mercy of the DA choosing not to prosecute?

Bad, bad, bad, bad, bad, bad, bad, bad, bad, bad, bad, bad, bad, bad, bad, bad, bad, bad, bad, bad, bad, bad, bad, bad joke.
You mean "How deep does the bunny hole go?

[Gfactor]

Well, here is a case where a court excluded evidence that the complaining witness used false identification. The evidence was offered for impeachment in a forcible rape trial.

http://www.utcourts.gov/opinions/supopin/gomez2.htm

[Hamlet]

Mind if I take a stab at it? I'm not a lawyer, but this is fun. :)

Well, we have a Sixth Amendment right to confront witnesses against us, right? And the purpose of that confrontation is fundamentally to either impeach the witness, or ellicit information that weakens the case of the prosecution. So couldn't the argument be made that "strict liability" laws which don't allow you to ask questions of the complainant like "Didn't you show me a liscence that said you were 18?" consitutes such a grievous restriction on your right to confront a witness against you that it defeats the intent of the sixth amendment?n Am I correct in assuming that you meant to argue that a law that limits a defendant's ability to cross examine the victim in a statutory rape case about her misrepresentations of age violates the Confrontation Clause of the Constitution? I'm not so sure that's the point ascenray was making, but I'll take a stab at it.

You are correct that the challenges to a defendant's right's on cross-examination is founded on his Sixth Amendment right of confrontation. In Delaware v. Van Arsdall, 475 U.S. 673, SCOTUS stated: a criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby 'to expose to the jury the facts from which jurors ... could appropriately draw inferences relating to the reliability of the witness.' However, the confrontation clause does have limits. The trial court: may, of course, impose reasonable limits on defense counsel's inquiry into the potential bias of a prosecution witness, to take account of such factors as "harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that [would be] repetitive or only marginally relevant,

So, you're absolutely right that the right to cross examination implicates the Sixth Amendment, and has a Constitutional basis. However, I don't think that was ascenray's point, and there are limits to it's use.

[alaricthegoth]

Huh? I think we have established that good faith error is not a defense. So my examples certainly assumed that the defense, being unavailabe, was not being asserted. We were discussing ways of getting false representations into evidence despite the lack of such a defense.

got it.

presumably then there's a forcible charged;, and prospect of instructing on statutory as a lesser included?

So they have to prove her age, which then makes her earlier fraud a prior inconsistent as to truth of the matter stated.

I don't think it could come in otherwise, ie as a "general veracity" issue.

in other words, somehow you have to make her sworn statement re:her present age (and hence her age as calculated to the date of the incident) relevant.


query:can a prosecutor join statutory and forcible in the same indictment? Or does it have to be a lesser included component of the forcible whenever the complainant is a minor?

[alaricthegoth]

Well, here is a case where a court excluded evidence that the complaining witness used false identification. The evidence was offered for impeachment in a forcible rape trial.

http://www.utcourts.gov/opinions/supopin/gomez2.htm

It is unclear from the statement of facts, bu I think the complainant was too young to drink, but not too young to fuck.

there is not a factual nexus to tie her age related misrepresentation to a bouncer re:over 21 to get in and drink with an (argued) misrepresentation as to the consensual nature of the sex.

I think if her age were at issue for some charged component of liability, and you defend on tht fact, you could, maybe, get the false id at the bar in.

But that really isnt any good to us in this case. We're actually looking for back door sympathy on a statuitory charge. For that, the misrepresentation must be to the defendant

[Gfactor]

But that really isnt any good to us in this case. We're actually looking for back door sympathy on a statuitory charge. For that, the misrepresentation must be to the defendant

Right. But I couldn't find any cases like that online. I included this case to show that at least one court agrees with those who have argued that the probative value of misrepresenting one's age is outweighed by the risk of unfair prejudice. Even though, in that case, the possible prejudice is murkier than in this case. There is no risk that the jury will invent a mistake of age defense for the defendant because age is not an issue.

[Bricker]

query:can a prosecutor join statutory and forcible in the same indictment? Or does it have to be a lesser included component of the forcible whenever the complainant is a minor?

It's not a lesser-included offense. Blockburger analysis -- they are two separate crimes, since each requires proof of an element that the other does not.

[Gfactor]

It's not a lesser-included offense. Blockburger analysis -- they are two separate crimes, since each requires proof of an element that the other does not.

What he said. Shoot I haven't thought about Blockburger analysis in some time. . .