Fleming v. State No. PD-1250-12

Meyers, J., delivered the majority opinion. Keasler, Hervey, Cochran, and Alcala, J., joined in the judgment. Cochran, J., filed a concurring opinion. Alcala, J., filed a concurring opinion. Keller, P.J., filed a dissenting opinion in which Price and Johnson, J.J., joined. Womack, J., concurred.

In April 2007, Fleming, age 25, began a relationship with a girl that had told him she was 22 years old. She was actually 13. On their second date, the two went to Fleming’s hotel and had consensual sexual intercourse. After being sexually active for 2 months, the girl’s mother found out about Fleming and his age. The mother called the police who questioned Fleming. Fleming told the police that he did not know she was underage. Nevertheless, Fleming was charged with aggravated sexual assault under Texas Penal Code 22.021(a)(i)(B)(iii). Fleming motioned to quash the indictment by arguing that the Texas Penal Code’s aggravated sexual assault section is unconstitutional because it does not require proof that he knew the victim was a minor and does not recognize an affirmative defense regarding the defendant’s reasonable belief that the victim is 17 or older.

During trial, Fleming testified that he believed the girl was 22 because the girl and her friend had told him so. In addition, he relied on the age she had posted on her MySpace page. The girl denied Fleming’s claims. Also, the State provided evidence that Fleming had dated a friend of the mother who sometimes babysat the girl. During the testimony, one of the jurors revealed a conflict of interest. Rather than risk a mistrial, the trial court gave Fleming a ten-year probated sentence and denied his motion to quash. On appeal, the court of appeals reasoned that the strictliability nature of statutory rape laws was a widely known exception to the mental state requirement for criminal culpability. The appellate court also said that Section 22.021 involves personal contact with the victim and the ability to discover his true age. Finally, the appellate court held that a statutory rape statute does not require a mental state component or mistake of age defense as a fundamental right from either federal Due Process or Texas Due Course of Law. As a result, the court of appeals affirmed the trial court because strict liability for statutory rape furthers the legitimate government interest of protecting children from sexual abuse.

Issue: Is the Texas Penal Code Section 22.021 unconstitutional under the Fourteenth Amendment’s Due Process Clause and the Texas Constitution’s Due Course of Law because the section (1) does not require the State to prove that the defendant had a culpable mental state regarding the alleged victim’s age and (2) does not recognize an affirmative defense based on the defendant’s reasonable belief that the alleged victim was 17 years of age or older?

The Court of Criminal Appeals held that Texas’s aggravated sexual assault statute was constitutional and did not adopt a mistake of fact defense. The Court of Criminal Appeals cited Regina v. Prince and Morissette v. United States. Both cases agreed with denying a mistake of age defense and imposing strict liability for statutory rape. See Regina v. Prince, 13 Cox, Criminal Case 138 (Eng. Crim. App. 1876); Morissette v. United States, 342 U.S. 246 (1952). For the mental state requirement, federal law does not require proof that the defendant know that her sexual partner is a minor. The Court also reasoned that the legislature clearly did not intend to require proof of a mental state for aggravated sexual assault because the Texas Penal Code does not list a mental state as to age for either sexual assault or murder. Moreover, the Court held that the statute served a legitimate government interest because it protected children from being coerced by the power of adults. The Court favored placing the burden on the adult to ascertain the age of his potential sexual partner. Therefore, the court did not find a fundamental right to a mental state requirement dealing with the age of the victim. For the mistake of fact defense claim, the Court held that protecting children from sexual assault outweighed any claim of a mistake of age defense. The Court reasoned that the legislature’s intent to protect children was clear and without exceptions. Thus, the Court found it unconscionable to provide a mistake of fact defense for aggravated assault. Consequently, the Court affirmed the ruling of the court of appeals.

Cochran, J., Concurring

Judge Cochran referred to his prior concurring opinions to establish his belief that the mistake of fact defense already applies to consensual statutory rape. Still, Judge Cochran reluctantly joined the majority opinion because the currently Texas does not apply a mistake of fact defense to consensual statutory rape.

Alcala, J., Concurring

Judge Alcala wrote separately to discuss how the majority opinion is consistent with Supreme Court precedent because the Court has exempted proof of a mental state in statutory rape cases as in Morissette. Furthermore, the Supreme Court has never held that placing the burden on the adult to ascertain the age of his sexual partner was unconstitutional. Alcala also argued that Lawrence v. Texas did not rule on relationships involving minors. As result, the judge argued that a mistake of fact defense is not constitutionally required for statutory rape cases and the Texas Legislature should decide whether to provide it. In addition, Judge Alcala wanted to highlight that mistakes resulting from communications through emerging technology, i.e. MySpace, in statutory rape cases will be irrelevant if sexual intercourse actually takes place because the adult ascertains true age upon making physical contact. Therefore, emerging technology would not compel a mistake of fact defense. As a matter of public policy, the judge did find it appropriate for the Texas Legislature to consider a mistake of fact defense for older high school aged teenagers. Judge Alcala also added that allowing a mistake of fact defense would hurt the reporting and prosecution of statutory rape because such a defense would lead to victim bashing during trial and less reporting of rape for fear of such bashing. Finally, Judge Alcala believed the mistake of fact defense unreasonable in this case because Fleming was not reasonably mistaken. The judge concluded that due process does not require a mistake of fact defense in aggravated sexual assault cases relying on the Texas Legislature’s goal of protecting young children as further support.

Keller, P.J., Dissenting

Presiding Judge Keller held that under Lawrence v. Texas, due process would require a mistake of age defense in a small number of statutory rape cases. Moreover, such a defense would not automatically be prohibited by the complainant being under 14 years old. Keller discussed the fundamental nature of mental culpability to argue that the requirement of a mental state is “firmly embedded in the common law.” Keller also discussed how strict liability is usually tied to “light offenses” with minor penalties. Moreover, Keller argued that the Supreme Court has held strict liability requires the defendant to be aware of certain facts that place him on notice of strict regulation. Then, the presiding judge discussed how notice was important to substantive due process in determining whether specific behavior could constitute a crime. Keller then moved on to discuss Texas case law to argue that due process requires a defensive instruction regarding involuntary intoxication in DWI cases because inflicting harsh punishment upon a person who lacks culpability for consuming intoxicating substances violates principles of justice.

Keller’s main point is that due process means freedom from harsh criminal punishment when a mental state is not required. For Keller, a mental state is absent only if the defendant lacks a mental state for both a crucial element of the offense and the existence of facts that would put him on notice of a duty to assure that his conduct is legal. These requirements would mean that strict liability has a somewhat implied mental state. According to the presiding justice, strict liability statutes that require such an implied mental state do not involve a fundamental right because the mental state is not really absent. Nevertheless, statutes that impose “rigorous” strict liability and do not require a mental state at all do involve a fundamental right if the penalty is harsh and the defendant completely lacks mental culpability of committing the crime. As a result, such statutes have to be narrowly tailored to serve a compelling government interest to conform to due process.

Then, Keller frames the idea that due process requires a mistake of age defense because of logic, precedent, and Lawrence v. Texas. In addition, a fundamental rights analysis under due process is proper for aggravated sexual assault of a child because of harsh penalties and the added burden of the registration system for sex offenders. Before discussing Lawrence, Keller argues that the abolition of the offense of fornication, the rising age of consent, and the lack of limitation for the prosecution of most child sex offenses undermine the wrongful conduct rationale for imposing strict liability on aggravated sexual assault. The presiding judge uses this argument as background to argue that Lawrence changed the fundamental rights analysis for aggravated sexual assault cases. According to Keller, the decision completely negated the wrongful conduct rationale because a defendant does not act “at his peril when he reasonably believes that he is having sexual relations with an adult.” Therefore, a mistake of fact defense is necessary to protect adults who reasonably believe that they are engaging in sexual intercourse with another adult because Lawrence serves as constitutional protection for consensual sexual intercourse between adults. In addition, this reasonable belief would negate any mental culpability. As a result, failing to provide a mistake of fact defense triggers a due process analysis but the defendant must believe that his partner is over 18.

Keller then considers another rationale based on empirical research as to a person’s ability to ascertain the age of a minor. While children of certain ages cannot possibly be mistaken for an adult, some minors could be mistaken for adults following the empirical rationale. According to the presiding judge, due process questions must take consideration of how the defendant was able to ascertain the age of his partner and its effects on his mental culpability. After Keller argues that due process requires a mistake of age defense under Lawrence, the presiding judge moves on to discuss the second part of the due process analysis which asks whether the government’s compelling interest is narrowly tailored to achieve such an interest. Of course the government’s interest in protecting children physically and psychologically is compelling. Notwithstanding, for Keller, the statute is not narrowly tailored because it is overbroad and punishes the most diligent, but still mistaken, defendant. In addition, other options exist to ensure the protection of children such as a requirement of diligence or placing the burden of proof on the defendant when raising the mistake of age defense.

Keller also argues that fears of decreased deterrence are highly speculative and prove insufficient to justify narrow tailoring. Moreover, the strict liability statute may produce innocent defendants who lack any mental state and adults who are victims of blackmail by minors. Another problem with the statute occurs when a minor rapes an adult. Under the statute, the adult victim could be liable because the law ignores the actor’s lack of mental culpability. The presiding judge argues that such an issue furthers his holding that without a mistake of age defense, the aggravated sexual assault statute is unconstitutional when the defendant demonstrates that he reasonably believed, after exercising due diligence, that his sexual partner was at least 18 if the conduct is protected under Lawrence. To fix the situation, Keller drafted the following mistake of age affirmative defense:

At the time of his conduct:

1. The defendant actually believed that the complainant was eighteen years of age or older, and the defendant was unaware of any substantial risk that the complainant was under the age of eighteen,
2. This belief and the lack of awareness was reasonable,
3. This actual, reasonable belief was based upon the exercise of diligence that a reasonable adult who contemplated sexual relations would exercise, and
4. But for the complainant’s age, the defendant’s conduct would constitute constitutionally protected consensual activity.

The defendant must support each element with evidence as is customary for all defenses. Also, the complainant’s physical appearance could show that the defendant could not be mistaken her age. Consequently, Presiding Judge Keller would remand the case to the court of appeals.