Fleming
v.
State

Court of Criminal Appeals of Texas.Jun 18, 2014
455 S.W.3d 577 (Tex. Crim. App. 2014)
455 S.W.3d 577S.W.3d

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No. PD–1250–12.

06-18-2014

Mark Alexander FLEMING, Appellant v. The STATE of Texas.

Richard Gladden, Denton, for Appellant. Catherine Luft, for the State of Texas.


Richard Gladden, Denton, for Appellant.

Catherine Luft, for the State of Texas.

OPINION

MEYERS, J., delivered the opinion of the Court, in which KEASLER, HERVEY, COCHRAN, and ALCALA, JJ., joined.

Appellant, Mark Alexander Fleming, was charged with four counts of aggravated sexual assault under Texas Penal Code Section 22.021(a)(1)(B)(iii), (2)(B). He filed a motion to quash the indictment on the basis that the statute is unconstitutional for failing to require the State to prove that he had a culpable mental state related to the victim's age and for failing to recognize an affirmative defense based on the defendant's reasonable belief that the victim was 17 years of age or older. The trial court denied the motion. Appellant entered a plea of “no contest,” filed an application for community supervision, and invoked his right to have the jury determine punishment. On the second day of testimony, one of the jurors informed the court that his son had dated the victim. In order to avoid a mistrial, the State and Appellant entered into a plea agreement for a ten-year probated sentence. Appellant appealed the trial court's denial of his motion to quash. The court of appeals overruled Appellant's federal constitutional claims and affirmed the trial court's judgment. We remanded the case to the court of appeals to consider Appellant's state constitutional claims, and the court of appeals again affirmed the trial court. Appellant filed a petition for discretionary review, which we granted to consider whether Penal Code Section 22.021 is unconstitutional under the Due Process Clause of the Fourteenth Amendment and the Due Course of Law provision of the Texas Constitution because it fails to require the State to prove that the defendant had a culpable mental state regarding the alleged victim's age, and fails to recognize an affirmative defense based on the defendant's reasonable belief that the alleged victim was 17 years of age or older. We will affirm the court of appeals.

Unless otherwise noted, all references to Sections refer to the Texas Penal Code.


FACTS

Appellant testified that in April of 2007 he received a text message from a girl, K.M., who said that she had obtained his phone number from her friend. When Appellant asked her age, she replied that she was 22 years old. K.M. was actually 13 years old. The two corresponded by text message and talked on the phone for a week or two and then arranged to meet at the mall for a date. Both Appellant and K.M. testified that on their first date they went to a movie and drag races at a race track, after which Appellant drove K.M. home. Appellant stated that K.M. told him that her mother and step-father lived with her because they had lost their home. After their second date to dinner and a movie, Appellant asked K.M. if she wanted to spend the night with him at the hotel where he had been staying. Appellant testified that K.M. said that she did want to go to his hotel but that she was not ready for them to have sexual relations at that time. Appellant said that he agreed and that they went to sleep upon arrival at the hotel. Appellant testified that when he awoke early the next morning, K.M. was “messing with” him in a way that indicated that she wanted to have sex. He asked her if she was sure, and she said that she was. Appellant and K.M. continued dating and having sex from April to May of 2007. Later that year, K.M.'s mom found a love letter that Appellant had written to K.M. Appellant, who was 25 years old at the time, wrote in the letter, “I no you 4 years or 5 years younger then me but I love you.” When her mom confronted her about the letter, K.M. initially denied the relationship. When K.M. admitted that she did have sex with Appellant, her mom called the police. Appellant was cooperative during questioning by the police and told the officer about the relationship. He told the officer that he did not know that K.M. was under age when he dated her. At trial, Appellant testified that he believed that K.M. was 22 years of age because both K.M. and her friend had told him that she was 22 years old, and because K.M. had told him that she was a student at the University of North Texas majoring in criminal justice. He also testified that he had seen on her MySpace page, which was entered into evidence by the defense, that she was 20 years old and was a student at UNT. The MySpace page entered into evidence by the defense also contained photos of K.M. that were taken around the time she was dating Appellant. K.M. denied having told Appellant that she was 22 years old and testified that someone else must have changed her MySpace page. She said she did not know if Appellant knew that she was under age when they dated. The State presented evidence that Appellant had previously dated a friend of K.M.'s mom, who sometimes babysat K.M. when she was younger. The State said that K.M. would have been 11 years old when Appellant first met her at her mom's house. K.M. said that Appellant had been to her mother's house in the past but she did not know if he remembered meeting her then.

The house Appellant had previously visited was not the same house where he dropped off K.M. after their dates.


Appellant agreed to a ten-year probated sentence and retained the right to appeal the trial court's denial of his motion to quash. He appealed, arguing that Penal Code Section 22.021 is unconstitutional due to its failure to require proof that he had knowledge that his victim was younger than 17 years of age and for not recognizing an affirmative defense based on the defendant's reasonable belief that the victim was 17 years of age or older.

COURT OF APPEALS

On remand from this Court, the court of appeals held that Section 22.021 does not offend notions of Due Process or Due Course of Law. The court stated that the texts of both the Due Course of Law provision and the Due Process Clause are virtually identical and that the Due Course of Law provision provides the same protections as the Due Process Clause. The court reasoned that the strict-liability aspect of statutory-rape laws is widely known and is a recognized exception to the general requirement of mens rea in criminal statutes. The court of appeals rejected Appellant's reliance on United States v. X–Citement Video, 513 U.S. 64, 73, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994), and said that the reasoning from X–Citement does not apply here because Section 22.021 involves personal contact with the underage victim and the ability to ascertain true age, while the possession of visual depictions of minors does not. The court of appeals determined that there is not a fundamental right to a mens rea component or a mistake-of-age defense in a statutory rape statute. Thus, as long as the statute is reasonably related to a legitimate state objective, it does not impinge on a substantive due-process right. The court of appeals concluded that strict liability regarding the age of the minor furthers the legitimate government interest in protecting children from sexual abuse by placing the risk of mistake on the adult actor. The court of appeals overruled Appellant's points of error and affirmed the judgment of the trial court.

ARGUMENTS OF THE PARTIES

Appellant presents a facial challenge to the statute's lack of a mens rea as to the victim's age. He raises an as-applied challenge to the court's failure to allow him to present a mistake-of-fact defense. Specifically, he argues that he had an objectively and subjectively reasonable belief that the victim in this case was over the age of 17. Appellant states that under early English and American Common Law, the knowing act of engaging in consensual sex with another when not sanctioned by the legal bonds of marriage was a legal and moral wrong, and that legal wrong sufficed as a substitute for mens rea in the statutory rape context. Appellant argues that, because such acts are no longer legally wrong, there is nothing to substitute for a mens rea element in Section 22.021 and it is unconstitutional to enforce the statute without the mens rea element that is essential in every felony charge. Appellant claims that in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), the United States Supreme Court extended the Due Process Clause's protection of liberty to the intimate choices of unmarried persons. Appellant cites X–Citement, stating that when a statute is completely bereft of a scienter requirement as to the age of the victim, and the age of the victim is the crucial element separating legal innocence from wrongful conduct, the statute raises serious constitutional doubts. Appellant argues that, because the physical act identified in Section 22.021(a)(1)(B)(iii) is entitled to constitutional protection, the complete absence of a mens rea requirement as to the age of the victim renders the statute constitutionally void. Appellant states that the framers of the Texas Constitution would have considered an ignorance-of-fact defense as a fundamental right so as to not punish those who, through no fault of their own, have been misled. Finally, Appellant argues that it is unfair for him to be considered a “sexual predator” when no evidence exists of any intent to do a legal or moral wrong and no evidence exists to indicate that he is a threat to the community.

The State argues that the court of appeals properly concluded that Appellant's fundamental rights were not implicated and that Section 22.021 serves a legitimate state purpose. The State says that the cases cited by Appellant do not support his argument that Section 22.021 is unconstitutional. For example, the State argues that the reasoning from X–Citement Video does not apply here because, unlike a defendant who does not know the age of a person depicted in a video, Appellant spent a significant amount of time with the victim and had ample time to ascertain her age. The State says that Lawrence v. Texas supports the constitutionality of Section 22.021 because the Court in Lawrence emphasized that it was recognizing the right of adults to engage in consensual conduct. The State argues that the Due Course of Law Clause and the Due Process Clause afford the same protection and that neither the history nor the application of the Due Course of Law provision supports a conclusion that Section 22.021 violates the Texas Constitution. The State notes that, although some states allow a mistake-of-age defense, the majority rule is that excluding knowledge of the victim's age as an element of the statutory rape offense does not violate Due Process. Finally, the State argues that the legislature has an interest in protecting the safety of children and that only the legislature should make changes to a statute that serves to protect children from sexual abuse.

CASE LAW

The mistake-of-age defense was raised and rejected in the 1876 English case of Regina v. Prince, 13 Cox, Criminal Cases 138 (Eng.Crim.App.1876). In Prince , the defendant was charged with unlawfully taking a girl under the age of 16 out of the possession of her father against his will. The defendant claimed that he acted on the reasonable belief that the girl was 18 years of age. The court held that it was no defense that he thought he was committing a different kind of wrong from that which he was, in fact, committing, it being wrong to remove a daughter, even one over the age of 16, from her father's household. Id. at 141–42. Citing previous cases, the court stated that “any man who dealt with an unmarried female did so at his own peril, and if she turned out to be under sixteen years old he was liable under this statute.” Id. at 139. Although the issue in Prince was mistake of age as to abduction, early American courts applied Prince to statutory rape as well. The reasoning from Prince has been used to justify denying the mistake-of-age defense and imposing strict liability against those accused of statutory rape.

See, e.g., Brown v. State, 74 A. 836, 841 (Del.1909) (finding that statements of age made by the statutory rape victim and the defendant's reasonable belief about her age were “irrelevant and immaterial”); State v. Basket, 111 Mo. 271, 19 S.W. 1097 (1892) (refusing a reasonable mistake-of-age defense for statutory rape of a twelve-year-old girl); Lawrence v. Commonwealth, 71 Va. 845, 854–55 (1878) (finding that the lower court did not err by refusing to give jury instructions that the defendant could not be found guilty of statutory rape based on a reasonable mistake-of-age defense).


In Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), the Supreme Court discussed strict liability offenses and noted that, while there must usually be a “vicious will” to constitute a crime, there are exceptions to this rule, including rape cases in which age is the determinative factor, despite the defendant's reasonable belief that the victim was over the age of consent. For strict liability crimes, there is no “guilty mind” requirement, and the actor does not have to possess the mens rea to commit any crime. In such strict-liability offenses, the actor's state of mind is irrelevant, and he is guilty of the crime at the moment he commits the prohibited act. Most strict liability statutes are associated with the protection of public health, safety, or welfare, such as those involving air and water pollution, sale of adulterated food, and traffic and motor-vehicle laws. Id. at 254–55, 72 S.Ct. 240. Statutory rape, however, is distinguishable in that the act of sexual intercourse is not a crime except in certain circumstances, such as when the other person has not consented to the act or when the other person is deemed unable to consent due to his or her age.

DISCUSSION

Mens rea as to the age of the victim

While it is indeed widely known that “16 will get you 20,” and precocious young girls have commonly been referred to as “jail bait,” such colloquialisms address only the understanding that even consensual sex with someone underage is a violation. These phrases indicate knowledge of the sexual partner's young age as opposed to an understanding that knowledge of the age is unnecessary. Texas Penal Code does not specify that mens rea as to the age of the victim is unnecessary, however, under federal law, “the Government need not prove that the defendant knew that the other person engaging in the sexual act had not attained the age of 12 years.” See 18 U.S.C. § 2241(d). See also 18 U.S.C. § 2243(d) (“In a prosecution for sexual abuse of a minor between the ages of 12 and 16, the Government need not prove that the defendant knew the age of the other person engaging in the sexual act”).

It is clear that the Texas legislature intends for age to be an aggravating element in certain offenses and does not intend for the State to be required to prove that the defendant knew the age of the victim. For example, the sexual assault statutes delineate the severity of the offense based in part on the age of the victim. Specifically, Penal Code Section 22.011(a)(2) covers sexual assault of a child under the age of 17. However, when the victim is younger than 14 years of age, the offense is aggravated sexual assault under Penal Code Section 22.021. Similarly, murder under Penal Code Section 19.02 may increase to capital murder under Section 19.03 if the victim is under 10 years of age. There is no mens rea as to age listed in either the sexual assault or murder statutes and there is no fundamental right to a mens rea element regarding the age of the victim in these contexts. Because this statute serves the legitimate state objective of protecting children, we will not read a mens rea element into the statute and do not believe that failure to require mens rea as to the victim's age violates the federal or state constitution. The statutory prohibition of an adult having sex with a person who is under the age of consent serves to protect young people from being coerced by the power of an older, more mature person. The fact that the statute does not require the State to prove mens rea as to the victim's age places the burden on the adult to ascertain the age of a potential sexual partner and to avoid sexual encounters with those who are determined to be too young to consent to such encounters. If the adult chooses not to ascertain the age of a sexual partner, then the adult assumes the risk that he or she may be held liable for the conduct if it turns out that the sexual partner is under age.

We note that Penal Code Section 19.03(a)(1) requires the State to prove that the defendant knew that the victim was a peace officer or fireman in order for the offense to increase from murder to capital murder. This indicates to us that when the legislature wants to require the State to prove that the offender knew the status of the victim, such a requirement is clearly stated in the statute.


Mistake-of-fact defense

While both the sexual assault and the murder statutes specify a more severe punishment based on the age of the victim, neither offense contains a provision that allows for a mistake-of-fact defense as to the age of the victim. Under Penal Code Section 8.02(a), “It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for the commission of the offense. ” Because Section 22.021 requires no culpability as to the age of the victim, there is nothing for the defendant's mistaken belief to negate, and his mistake cannot be a defense to prosecution.

Appellant asks for an affirmative defense so that he may claim that even though the allegations in the indictment are true, he should not be convicted due to his assertion that he did not know that K.M. was 13 years of age. The legislature's intent of protecting children from sexual assault is clear, and it outweighs any claim of the right to present a mistake-of-age defense. When a defendant voluntarily engages in sexual activity with someone who may be within a protected age group, he should know that there may be criminal consequences and there will be no excuse for such actions. When it comes to protecting those who are unable, due to their tender age, to consent to sexual activity, the legislature simply does not allow any variance.

It would be unconscionable for us to allow a 25–year–old man who was having sex with a 13–year–old child to claim that his actions were excused because he reasonably believed that he was having sex with an adult. Such a defense is precluded by the overriding interest in protecting children.

CONCLUSION

Texas Penal Code Section 22.021 is not unconstitutional under the Due Process Clause of the Fourteenth Amendment or the Due Course of Law provision of the Texas Constitution for failing to require the State to prove that the defendant had a culpable mental state regarding the victim's age or for failure to recognize an affirmative defense based on the defendant's belief that the victim was 17 years of age or older. The decision of the court of appeals is affirmed.

COCHRAN, J., filed a concurring opinion.

ALCALA, J., filed a concurring opinion.

KELLER, P.J., filed a dissenting opinion in which PRICE and JOHNSON, JJ., joined.

WOMACK, J., concurred.

COCHRAN, J., filed a concurring opinion.

For the reasons set out in my concurring opinions in Celis v. State and Farmer v. State, I believe that the Texas statutory mistake-of-fact defense already applies to the offense of consensual statutory rape. Nonetheless, I recognize that this is not the current state of the law in Texas, and therefore I reluctantly join the majority opinion.

416 S.W.3d 419, 441–58 (Tex.Crim.App.2013) (Cochran, J., concurring).


For example, the Model Penal Code allows the defense of reasonable mistake as to age when the victim is over the age of ten, and federal law allows for a mistake-of-age defense when the minor is between the ages of twelve and sixteen. See Model Penal Code § 213.6 ; 18 U.S.C. § 2243(c)(1). But, viewed in a different light, this also means that the Model Penal Code does not allow a mistake-of-fact defense when the victim is ten or younger, and federal law does not allow it when the victim is eleven or younger. Here, the complainant was thirteen years old. The difference between the Model Penal Code and federal law and the situation here, therefore, is not that those laws allow a mistake-of-age defense in all cases, but instead that those laws would allow the defense for complainants who are older than ten or eleven years old. The question before us then comes down to a matter of degree: Given that the mistake-of-age defense is not permitted for children ages ten and eleven and under in several other jurisdictions, is it unconstitutional if it is not permitted for children ages thirteen and under in Texas? I cannot conclude that the federal Constitution would draw a bold line here. I also note that only seventeen states permit the mistake-of-age defense, with at least twenty-three jurisdictions characterizing “statutory rape” as a strict-liability offense. See United States v. Rodriguez, 711 F.3d 541, 557 (5th Cir.2013) (citing Catherine L. Carpenter, On Statutory Rape, Strict Liability, and the Public Welfare Offense Model, 53 Am. U.L.Rev.313, 385–91 (2003) ). The majority rule in the United States, therefore, is to not permit a defense on mistake as to the age of a child-victim. Id.


411 S.W.3d 901, 908–18 (Tex.Crim.App.2013) (Cochran, J., concurring).


Under Texas law, a defendant commits aggravated sexual assault of a child, a first-degree felony, if he has sexual relations with a child thirteen years of age or under, and a lesser offense of sexual assault of a child, a second-degree felony, if he has sexual relations with a child fourteen to sixteen years of age. See Tex. Penal Code§§ 22.011(a) ; 22.021(a). By punishing offenders who victimize children thirteen years of age and younger at the highest punishment range available, regardless of the reasonableness of the actor's belief about the child's age, the Texas Legislature has determined that these younger children deserve society's greatest protection. See id. Under Texas law, children ages thirteen and under may never consent to sexual relations under any circumstances. See id. In contrast, teenaged children at ages fourteen through sixteen may consent to sexual relations with a spouse or a person around their same age. See id. § 22.011(e). The Texas Legislature, therefore, has drawn an absolute line of no consent under any circumstances at thirteen years of age or younger. See id. § 22.021(a). The Legislature has “not acted unreasonably or arbitrarily” in determining that children thirteen years of age and younger are deserving of special protection.See Rodriguez v. State, 93 S.W.3d 60, 69 (Tex.Crim.App.2002) (examining for unreasonable and arbitrary acts of Legislature to determine whether statute is unconstitutional).


U.S. Const.,Amend. 14, § 1, cl. 3.


ALCALA, J., filed a concurring opinion.

I wholeheartedly join the majority opinion's affirmance of the conviction of Mark Alexander Fleming, appellant, for aggravated sexual assault of a child. I write separately to further discuss why I believe that (1) this Court's decision is consistent with Supreme Court precedent, (2) emerging technology may be less consequential in these cases than it may appear at first blush, (3) permitting a mistake-of-fact defense would negatively impact the reporting and prosecution of this type of crime, and (4) appellant's claim of mistake of fact is unreasonable even if this Court were to recognize the propriety of a such a defense.

I. The Majority Opinion is Consistent With Supreme Court Precedent

Although, as a general principle, criminal intent must be proven beyond a reasonable doubt to sustain a conviction, the Supreme Court has repeatedly observed that proof of the age of a child in a prosecution for statutory rape is an exception to that general rule. See Morissette v. United States, 342 U.S. 246, 251, 72 S.Ct. 240, 244, 96 L.Ed. 288 (1952). In Morissette, the Supreme Court described the historical recognition by common-law commentators that there are “a few exceptions” to the “sweeping statement that to constitute any crime there must first be a ‘vicious will.’ ” Id. It stated, “Exceptions came to include sex offenses, such as rape, in which the victim's actual age was determinative despite defendant's reasonable belief that the girl had reached age of consent.” Id. at 251 n. 8, 72 S.Ct. 240. Decades after the Morissette decision, the Supreme Court reaffirmed this principle in United States v. X–Citement Video, Inc., 513 U.S. 64, 72 n. 2, 115 S.Ct. 464, 469, 130 L.Ed.2d 372 (1994). In X–Citement Video, the Supreme Court stated, “Morissette 's treatment of the common-law presumption of mens rea recognized that the presumption expressly excepted ‘sex offenses, such as [statutory] rape[.]’ ” Id. (quoting Morissette, 342 U.S. at 251 n. 8, 72 S.Ct. 240 ). Distinguishing, on one hand, child-pornography distribution offenses, which would require proof of criminal intent as to the age of the child, from statutory rape, which, on the other hand, would not require proof of that intent, the Supreme Court explained that the rapist “confronts the underage victim personally and may reasonably be required to ascertain that victim's age.” Id. In each of these instances, the Supreme Court has suggested that a defendant who has had personal sexual contact with a child-complainant is unreasonable in claiming that he was unaware that the child was not an adult.See id. In none of these cases has the Supreme Court suggested that it is unconstitutional to place the burden on the adult to affirmatively determine that a sexual partner is actually an adult rather than a child. See id.

In its more recent decision in Lawrence v. Texas, the Supreme Court did not suggest that due process would require a mistake-of-fact defense as to the age of the child in a prosecution for a sexual offense. See Lawrence v. Texas, 539 U.S. 558, 569, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). Rather, in deciding whether due process would extend to protect the right of homosexual adults to engage in consensual sex, the Supreme Court in Lawrence described the difference between Texas's sodomy law that Texas was enforcing against two consenting adults as compared to the historical origin of sodomy laws. It explained that, in the 19th century,

[l]aws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private. A substantial number of sodomy prosecutions and convictions for which there are surviving records were for predatory acts against those who could not or did not consent, as in the case of a minor or the victim of an assault.... Instead of targeting relations between consenting adults in private, 19th-century sodomy prosecutions typically involved relations between men and minor girls or minor boys, relations between adults involving force, relations between adults implicating disparity in status, or relations between men and animals.

Id. (emphasis added). In deciding that the enforcement of sodomy laws against two consenting adults violated due process, the Supreme Court distinguished that situation from 19th-century laws that prohibited sexual acts with children or non-consenting adults, which were not unconstitutional. Id. at 578, 123 S.Ct. 2472 (“The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused.”). Texas's view in enforcing sodomy laws against two consenting adults, therefore, was inconsistent with the historical application of those laws to protect a child from having sexual relations with an adult, as here. Id.

Furthermore, and of particular relevance to the issues presently before this Court, 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 a sexual offense. Id. at 578–79, 123 S.Ct. 2472. The issue in Lawrence, as described by the Supreme Court, was “whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty” under due process. Id. at 564, 123 S.Ct. 2472. The Court emphasized that “as a general rule,” the State should avoid “defin[ing] the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects,” and it further noted that its decision was rooted in the principle “that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons.” Id. at 567, 123 S.Ct. 2472. The Court concluded that its ruling did not involve minors, non-consenting or coercive relationships, public conduct, or prostitution, but rather “two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle.”Id. at 578, 123 S.Ct. 2472. The holding in Lawrence was thus limited to a situation involving two consenting adults, a matter in which there is “no legitimate state interest,” but that decision cannot rationally be used as a basis to argue that the same standard should apply when the State has a legitimate interest at stake, that of protecting children from sexual abuse. See id. 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. See id. Because a mistake-of-age defense is not constitutionally required, only a minority of jurisdictions permit this defense under similar facts.1

Consistent with Supreme Court precedent, Texas's aggravated-sexual-assault statute does not prescribe any mental state as to the age of a child in a prosecution under that statute. See Tex. Penal Code § 22.021(a)(1)(B). Under Texas law as dictated by the Legislature, the offense of aggravated sexual assault of a child does not require the State to provide evidence that the defendant was aware of a child-complainant's age at the time of the offense, nor does it allow a defendant to raise a defense on that basis. See id. 2 This Court has repeatedly observed that the statutory language neither requires proof of mens rea as to the child's age nor provides for a mistake-of-age defense. I conclude that this Court must abide by Supreme Court precedent and Texas law as written, rather than legislate from the bench by creating a non-statutory defense where none is required. I, therefore, agree with the majority opinion that, under Supreme Court precedent, the federal Constitution does not require that a defendant be afforded a mistake-of-fact defense as to a child-complainant's age and that this is a matter solely for the Texas Legislature to determine.

See Black v. State, 26 S.W.3d 895, 898 (Tex.Crim.App.2000) (per curiam) (“No scienter with respect to the lack of consent in sexual assault and aggravated sexual assault is required when the victim is a child. Nor is mistake of fact with respect to the victim's age a defense to either form of sexual assault.”) (citations omitted); see also Vasquez v. State, 622 S.W.2d 864, 866 (Tex.Crim.App.1981) (stating that, under well-established Texas law, “it had consistently been held that a female under the age fixed by statute was deemed in law to be incapable of consenting to an act of sexual intercourse, and one who had committed the act on her was guilty of rape, notwithstanding the fact that he had obtained her actual consent, or was ignorant of her age, or even though she invited or persuaded him to have intercourse with her”).


Reno v. Flores,
507 U.S. 292, 301–02, 306–07, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993).


I note here that part of the rationale offered by the dissenters in support of permitting a mistake-of-fact defense under these circumstances is that the Legislature has enacted sex-offender-registration laws that apply to a defendant “even if the finder of fact believed that the defendant was entirely blameless with respect to whether he was dealing with a child.” But the view that an individual can be “blameless” when he has sexual intercourse with a child under fourteen years of age runs contrary to the legislative determination that the burden of ensuring that a sexual partner is of legal age falls squarely on the defendant, who must verify that the person with whom he is intimate is not a child. In failing to meet his burden under Texas law to ascertain that his intimate partner is legally capable of consent, a defendant who has sexual intercourse with a child under the age of fourteen can hardly be called “blameless.”


Washington v. Glucksberg,
521 U.S. 702, 720–21, 728, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997).


II. Existence of Emerging Technology May Be Inconsequential

Anyone can easily see that children now, unlike historically, have unprecedented access to emerging technology, cell phones, texts, and social media web sites. And children may falsify their ages on a web site or take Glamour Shots that make them appear older. Had this complainant and appellant never met in person, facts like these would likely be a good reason to explain how technological developments might impact this case. But this is not a situation where impersonal communication took place over an electronic medium, or under circumstances in which an adult may have been unaware that the person on the other end of the electronic communication was a child. Here, appellant and the complainant met in person and engaged in sexual intercourse on multiple occasions. The fact that some children will misstate their age on web sites and that this may consequently mislead someone who has never met them as to their age presents a completely different situation from one involving a defendant who engages in person-to-person, intimate sexual contact with a child. Sexual intercourse between an adult and a minor that occurred in the pre-cell phone era is fundamentally no different than the nature of its occurrence now. Nothing about this intimate sexual contact has changed an adult's historical burden to make himself aware of the age of the child. It is the adult's responsibility to ascertain the true age of the child, particularly one who is thirteen years of age or younger. See Tex. Penal Code § 22.021(a)(2)(B). The Supreme Court's description of the situation is as applicable now as it was six decades ago: The rapist “confronts the underage victim personally and may reasonably be required to ascertain that victim's age.” X–Citement Video, 513 U.S. at 72 n. 2, 115 S.Ct. 464 (citing Morissette, 342 U.S. at 251 n. 8, 72 S.Ct. 240 ).

Although I remain unpersuaded that emerging technology compels us to constitutionally require a mistake-of-fact defense under these circumstances, as a matter of public policy, it may be appropriate for the Legislature to consider whether to permit such a defense for older, high-school-aged teenagers with a limited right of consent. Here, the dissenting opinion is advocating for a mistake-of-fact defense that would apply to situations involving younger, middle-school-aged children. Assuming a child begins kindergarten at the age of five, that child will be thirteen years old at the beginning of eighth grade, which is in middle school in Texas, and will be fourteen years old at the beginning of ninth grade, which is in high school. As a matter of law, no adult should be able to claim that he was reasonably mistaken that a middle-school-aged child was an adult. I continue to believe that this defense is inappropriate in cases involving children who are thirteen years of age and younger because those children are statutorily incapable of giving any kind of consent. See Tex. Penal Code § 22.021(a)(2)(B). In any event, this determination is ultimately for the legislative branch alone to make, rather than the judicial branch.

III. Permitting a Mistake–of–Fact Defense Would Negatively Impact Reporting and Prosecution of Child Sex Offenses

It is suggested that if this Court were to permit it, the mistake-of-fact defense would apply only in rare cases when a defendant could produce evidence demonstrating that he harbored a reasonable but mistaken belief as to the age of the child with whom he engaged in sexual contact. 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. At trial, knowing that he would be acquitted if a jury believed his testimony, a defendant could testify that he believed the child-complainant, even one as young as ten years of age, appeared to be above the age of consent. His defense strategy would be to show that his belief was reasonable by asking questions of the child and her family designed to convince the jury that she did things to make herself look and sound older than her actual age. Furthermore, if the mistake-of-fact defense were constitutionally required as suggested by the dissenting opinion, the trial court would be compelled to permit the defense attorney to ask the following types of questions of the complainant: whether she wore makeup; how she wore her hair; whether she wore skinny jeans or mini skirts; whether she had been through puberty, was developed, and wore a bra, and, if so, what size; what types of books, movies, videos, and music she enjoyed; whether she had a cell phone or texted people; whether she had a Facebook page and what kinds of pictures she posted there; what her friends looked like and how old they were; whether she was permitted to date; whether she ever broke her parents' rules; and other personal and embarrassing questions. The trial would be converted from one that judges the defendant's conduct to one that places the victim and her family on trial. Avoiding this type of victim-bashing was precisely why rape shield laws were passed decades ago.See Tex.R. Evid. 412 (prohibiting evidence of past sexual behavior of sexual-assault victim). Rape shield laws became necessary because the possible introduction at trial of embarrassing details about a rape victim's sexual history was deterring victims from reporting crimes and testifying in court. 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. The farther reaching consequence would be to deter children and their families from reporting sex offenses out of fear that they too would be subjected to humiliation and embarrassment in the courtroom. Absent any constitutional imperative that would require it to do so, this Court should not permit a mistake-of-fact defense when such a ruling would have the practical effect of diminishing protections for victims and their families and deterring reporting of sex crimes.

IV. Appellant Has Failed to Show that He Acted Reasonably

Assuming that this Court permitted a mistake-of-fact defense as to a statutory rape victim's age, to show its applicability here, appellant would have had to provide at least a scintilla of evidence to support his argument that he formed a reasonable belief that the complainant was an adult over seventeen years of age. See Allen v. State, 253 S.W.3d 260, 267 (Tex.Crim.App.2008) ; Tex. Penal Code §§ 8.02(a) (defense exists where a mistaken, “reasonable belief” about a matter of fact “negate[s] the kind of culpability” required for the offense), 1.07(a)(42) (“reasonable belief” is that which “would be held by an ordinary and prudent man in the same circumstances as the actor”). The record indicates that at the time when he committed the offense, appellant was twenty-four years of age and the complainant was more than a decade his junior at thirteen years of age. Even according to his own evidence, appellant was reckless and unreasonable about determining whether the complainant was actually over seventeen years of age. According to appellant's theory, the complainant lied about her age, telling him she was twenty-two but showing that her age was twenty on her MySpace page. She lived with her parents. Appellant wrote a love letter claiming that he knew that she was four or five years younger than he, which further indicates that he did not attempt to determine how old she really was and, in fact, knew that she was much younger. The fact that other people who had limited contact with the complainant may also have been reckless about failing to determine her correct age does not change appellant's recklessness into reasonable conduct. See Montgomery v. State, 588 S.W.2d 950, 953 (Tex.Crim.App.1979) (“The mistake of fact defense ... is based on the mistaken belief of the accused, and it looks to the conduct of others only to the extent that any such conduct contributes to the mistaken belief.”); Lasker v. State, 573 S.W.2d 539, 542 (Tex.Crim.App.1978). Appellant had extensive contact with the complainant, so the reasonableness of his belief should be judged by a different standard than the beliefs of those who had limited contact with the complainant. Furthermore, group recklessness by a defendant's friends and others should not amount to a license to prey upon children who are thirteen and younger under the veil of reasonableness. Appellant's own theory, therefore, shows that he did not ever directly ascertain from the complainant her actual age and that he remained recklessly ignorant about that fact. In short, his evidence of his mistaken belief fails to show that he was reasonably mistaken about the complainant's true age.

V. Conclusion

Society recognizes that young children ages thirteen and under are especially vulnerable to adults, who can easily overpower them physically and mentally. Furthermore, these young children lack the judgment to assess and avoid potentially dangerous situations. These young children, therefore, may exhibit bad judgment in deceiving others about their age, coming home late, or spending the night away from home without permission. The question is not whether young children lack judgment; they do. The question is whether the federal Constitution requires us to recognize an affirmative defense based on the defendant's reasonable but mistaken belief that a child thirteen years old or under was an adult capable of consent. By declining to impose a mental-state requirement as to the age of the child, the Legislature has squarely placed the burden on the adult to determine that the person he is having sex with is not actually thirteen years old or younger. The severe penalties for getting it wrong are the Legislature's way of incentivizing due diligence and ensuring that it is adults, not children, who are encumbered with this responsibility. I conclude that the elevated punishments imposed by the Texas Legislature in response to the victimization of young children strengthen rather than subvert my conclusion that a defendant's due-process rights do not encompass the entitlement to a mistake-of-fact defense in an aggravated-sexual-assault case.

With these comments, I respectfully concur.

KELLER, P.J., filed a dissenting opinion in which PRICE and JOHNSON, JJ., joined.

I would hold that, after Lawrence v. Texas, 1 in a limited number of child sex cases, due process requires the submission of an affirmative defense of reasonable mistake of age. I would also hold that such a defense is not automatically precluded by the fact that the complainant is under the age of fourteen.

I. SUBSTANTIVE DUE PROCESS

The Fourteenth Amendment provides that no state shall “deprive any person of life, liberty, or property, without due process of law.”2 The Supreme Court has interpreted the Due Process Clause as having both substantive and procedural components.3 The substantive component protects the individual against government action that either lacks a rational basis or unduly infringes on a fundamental right or liberty interest.4 A statute that infringes upon a fundamental right or liberty interest violates the substantive component of the Due Process Clause “unless the infringement is narrowly tailored to serve a compelling state interest.” A substantive-due-process analysis that is based upon the infringement of a fundamental right or liberty interest must provide a “careful description of the asserted fundamental liberty interest.” A fundamental right or liberty interest is one that is “deeply rooted in this Nation's history and tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [it] were sacrificed.” In addition to specific freedoms protected by the Bill of Rights, the Supreme Court has recognized a number of fundamental rights, such as the right to marry, the right to have children, the right to marital privacy, and the right to bodily integrity.


Glucksberg,
521 U.S. at 721, 117 S.Ct. 2258 (internal quotation marks omitted).


Id.
at 720–21, 117 S.Ct. 2258 (citations and internal quotation marks omitted, bracketed material substituted for original).


The first ten amendments to the United States Constitution.


Glucksberg,
521 U.S. at 720, 117 S.Ct. 2258 (citing cases).


II. FUNDAMENTAL RIGHT

A. Overview

As will be seen in the following discussion, one of the two fundamental rights implicated in the present case is the right to be free from harsh punishment when mental culpability is entirely absent. In this context, mental culpability is entirely absent if the defendant (1) harbors no culpable mental state with respect to an element of the offense that is crucial to imposing criminal liability and (2) harbors no culpable mental state with respect to the existence of facts that place him on notice of the probability of strict regulation requiring him to ascertain whether he is engaging in conduct that violates the law. For purposes of this discussion, culpable mental states include not only the ones listed in the Penal Code—intent, knowledge, recklessness, and criminal negligence —but other culpable mental states such as wilfulness and ordinary negligence.

See Tex. Penal Code§ 6.03.


See
State v. Hazelwood, 946 P.2d 875 (Alaska 1997) (discussing ordinary negligence as a minimum mental-culpability standard sometimes required by due process).


B. Fundamental Nature of Mental Culpability

The idea that some mental culpability must attach to conduct before it can be a crime “is no provincial or transient notion.” “It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.” The Supreme Court has explained that a relation “between some mental element and punishment ... is almost as instinctive as the child's familiar exculpatory” statement “But I didn't mean to.” The general requirement of some mens rea for a crime is firmly embedded in the common law and is “the rule of, rather than the exception to, the principles of Anglo–American criminal jurisprudence.” There are exceptions to the general requirement of mens rea: offenses that are sometimes called “strict-liability crimes.” But, as the following discussion will show, two characteristics generally associated with such offenses mitigate against their harshness: (1) they typically have light penalties, and (2) despite their name, they typically do not entirely dispense with mental culpability.

Morissette v. United States, 342 U.S. 246, 250, 72 S.Ct. 240, 96 L.Ed. 288 (1952).


Id.


Id.
at 250–51, 72 S.Ct. 240.


Staples v. United States,
511 U.S. 600, 605, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994) (quoting United States v. Gypsum Co., 438 U.S. 422, 436, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978) ); see also Smith v. California, 361 U.S. 147, 150, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959).


Staples,
511 U.S. at 607 n. 3, 114 S.Ct. 1793.


C. Doctrine of Strict Liability

Historically, strict-liability offenses have most often been what courts have called “regulatory” or “public welfare” offenses. Typically, these offenses carried “only light penalties” such as “fines or short jail sentences,” and conviction of the offense did “no grave damage to an offender's reputation.” In a system like ours that generally requires a “vicious will” to establish a crime, “imposing severe punishments for offenses that require no mens rea would seem incongruous.” The Supreme Court has recognized that the “public welfare offense” label “hardly seems apt” when the crime is a felony.

Id. at 616–17, 114 S.Ct. 1793 ; United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971).


Id.
at 617–18, 114 S.Ct. 1793 ; Morissette, 342 U.S. at 256, 72 S.Ct. 240.


Id.
at 618, 114 S.Ct. 1793.


Whether or not it is a public-welfare offense, it is generally true that a so-called strict-liability offense does not entirely dispense with mental culpability. From a Texas perspective, the Supreme Court's cases generate some confusion because they often define mens rea narrowly to encompass only an actual awareness of the circumstances that make the act criminal. The Supreme Court has referred to mens rea as a “vicious will,” and that Court has suggested that crimes of negligence or omission of duty are instances in which a “vicious will” are absent. In Texas, however, “criminal negligence” is a statutorily recognized culpable mental state, and we commonly refer to negligence as a form of mens rea.

Id. at 607 n. 3, 114 S.Ct. 1793 (“Under such statutes we have not required that the defendant know the facts that make his conduct fit the definition of the offense. Generally speaking, such knowledge is necessary to establish mens rea. ”).


Id.
at 616–17, 114 S.Ct. 1793 ; Freed, 401 U.S. at 607, 91 S.Ct. 1112 ; Morissette, 342 U.S. at 251, 72 S.Ct. 240.


Staples,
511 U.S. at 606–07, 114 S.Ct. 1793 (discussing legislation that “dispenses with the conventional requirement for criminal conduct-awareness of some wrongdoing”); Morissette, 342 U.S. at 251 n. 8, 72 S.Ct. 240 (“Most extensive inroads upon the requirement of intention, however, are offenses of negligence, such as involuntary manslaughter or criminal negligence and the whole range of crimes arising from omission of duty.”); United States v. Balint, 258 U.S. 250, 252, 42 S.Ct. 301, 66 L.Ed. 604 (1922) (ignorance or good faith not a defense to certain regulatory crimes).


Tex. Penal Code§ 6.03(d).


See, e.g.,
Montgomery v. State, 369 S.W.3d 188, 191 (Tex.Crim.App.2012) ; Watson v. State, 369 S.W.3d 865, 871 (Tex.Crim.App.2012) ; Williams v. State, 235 S.W.3d 742, 751–53 (Tex.Crim.App.2007). See also Hazelwood, 946 P.2d at 878–79 (characterizing ordinary negligence as a mens rea ).


Regardless of the status of negligence as a mens rea, the Supreme Court has indicated that strict-liability offenses generally impose liability only if the defendant is aware of certain facts that place him on notice of “the probability of strict regulation” requiring him to “ascertain at his peril whether his conduct comes within the inhibition” of the law. If, for example, a person is in the business of selling drugs or food, or he deals in hazardous materials such as explosives or sulfuric acid, then he is on notice that the burden may be on him to ascertain that he is complying with all government laws relating to the matter. Essentially, the same reasoning holds in the area of compound crimes and transferred intent, where a person who commits a predicate crime is held responsible for an unintended consequence of that crime, as in the case of felony murder:

Staples, 511 U.S. at 607, 114 S.Ct. 1793. See also United States v. Int'l Minerals & Chem. Corp., 402 U.S. 558, 564–65, 91 S.Ct. 1697, 29 L.Ed.2d 178 (1971) (with respect to transporting sulfuric acid, “[T]he probability of regulation is so great that anyone who is aware that he is in possession ... must be presumed to be aware of the regulation.”); Freed, 401 U.S. at 609, 91 S.Ct. 1112 (“This is a regulatory measure in the interest of the public safety, which may well be premised on the theory that one would hardly be surprised to learn that the possession of hand grenades is not an innocent act.”); United States v. Dotterweich, 320 U.S. 277, 284–85, 64 S.Ct. 134, 88 L.Ed. 48 (1943) (regarding prosecution of corporate officer whose company shipped adulterated food, “Balancing relative hardships, Congress has preferred to place it upon those who have at least the opportunity of informing themselves of the existence of conditions imposed for the protection of consumers before sharing in illicit commerce, rather than to throw the hazard on the innocent public who are wholly helpless.”); Balint, 258 U.S. at 252–53, 42 S.Ct. 301 (regarding sale of drugs, “[W]here one deals with others and his mere negligence may be dangerous to them ... the policy of the law may, in order to stimulate proper care, require punishment of the negligent person, though he be ignorant of the noxious character of what he sells.”).


See
Balint, 258 U.S. at 252–53, 42 S.Ct. 301 (drugs); Dotterweich, 320 U.S. at 284–85, 64 S.Ct. 134 (food).


See
Freed, 401 U.S. at 608–09, 91 S.Ct. 1112 (hand grenades); Int'l Minerals & Chem. Corp., 402 U.S. at 564–65, 91 S.Ct. 1697 (sulfuric acid).


It is unusual to impose criminal punishment for the consequences of purely accidental conduct. But it is not unusual to punish individuals for the unintended consequences of their unlawful acts.... The felony-murder rule is a familiar example: If a defendant commits an unintended homicide while committing another felony, the defendant can be convicted of murder.


Commission of the predicate crime is the dangerous activity that places the defendant on notice that he better be careful or he may be liable for another crime. The Supreme Court has acknowledged that “the term ‘strict liability’ is really a misnomer” in the context of dangerous or highly regulated activities. “True strict liability might suggest that the defendant need not know that he was dealing with a dangerous item,” but the Supreme Court has “avoided construing criminal statutes to impose [this] rigorous form of strict liability.”

See Lomax v. State, 233 S.W.3d 302, 305 & n. 7 (Tex.Crim.App.2007).


Staples,
511 U.S. at 607 n. 3, 114 S.Ct. 1793.


Id.; see also
Hazelwood, 946 P.2d at 884 n. 16 (“In other words, even strict liability crimes do not dispense with the requirement of criminal intent. Rather, because they rest on a fair presumption of unreasonableness, they do not require that negligence be shown separately.”).


D. Due–Process Implications

Most of the time, the Supreme Court's discussion of strict-liability offenses occurs in the context of statutory construction because the Court will often read a culpable mental state into a federal statute even if the statutory language is silent. But there is one case from the Supreme Court that has found a due-process violation, and there are other cases from the Court that discuss in dicta the due-process implications of imposing a “rigorous” form of strict liability.

See Staples, 511 U.S. at 605–06, 114 S.Ct. 1793 (“[W]e have noted that the common-law rule requiring mens rea has been followed in regard to statutory crimes even where the statutory definition did not in terms include it.”).


In Lambert v. California, the Supreme Court addressed an ordinance that required a person who was previously convicted of a felony to register with the City of Los Angeles if the person stayed in the city for more than five days or came into the city on five or more occasions during a thirty-day period. The Court held that the registration statute violated due process when it was applied to a person who had no actual knowledge of his duty to register and where no showing was made “of the probability of such knowledge.” “Engrained in our concept of due process,” the Court held, “is the requirement of notice.” Although notice is an important component of procedural due process in defending against a criminal charge, it is also a consideration in determining whether certain behavior can even be considered a criminal law violation.


Id.
at 227–30, 78 S.Ct. 240. See also Smith, 361 U.S. at 150, 80 S.Ct. 215 (citing Lambert and observing that, while the States had the power to create strict-liability offenses, “there is precedent in this Court that this power is not without limitations”).


Id.


In Powell v. Texas, the Supreme Court recognized its holding in Lambert but nevertheless stated that the “Court has never articulated a general constitutional doctrine of mens rea. It is true that the Court focused on the fact that the crime in Lambert was one of “omission.” But the Court also noted that there was no suggestion that the defendant in the case before it—who was arguing that he lacked mens rea due to his alcoholism—“was not fully aware of the prohibited nature of his conduct and of the consequences of taking his first drink.”


Id.


While Lambert dealt with what the Court called a defendant's “wholly passive” behavior, the Supreme Court has in later cases suggested that due process may apply to more active behavior if the activity engaged in is not the sort that would place the defendant on notice of the probability of regulation. In United States v. Int'l

Lambert, 355 U.S. at 228, 78 S.Ct. 240. See also Powell, 392 U.S. at 535 n. 27, 88 S.Ct. 2145.


Minerals & Chem. Corp.,
the Supreme Court explained that, while the dangerous nature of drugs, hand grenades, and sulfuric acid are sufficient to place a person on notice of regulation, more innocuous products such as “[p]encils, dental floss, [and] paper clips ... may be the type of products which might raise substantial due process questions if Congress did not require ... mens rea as to each ingredient of the offense.” In that case, the Court also observed that a person who believed in good faith that he was shipping water instead of sulfuric acid was not covered by terms of the statute that required the defendant to know what substance he was transporting. In United States v. Freed, the Court contrasted the case before it with Lambert, saying “an agreement to acquire hand grenades is hardly an agreement innocent in itself” because hand grenades are highly dangerous weapons, “no less dangerous than the narcotics involved in United States v. Balint.


Id.
at 563–64, 91 S.Ct. 1697.


Freed,
401 U.S. at 609 & n. 14, 91 S.Ct. 1112.


E. Illustrative Texas Cases

Two of our own recent cases, though not dealing with constitutional issues, illustrate how a mental element of sorts comes into play with respect to what is denominated a strict-liability offense. In Farmer v. State, a defendant accused of driving while intoxicated (DWI) contended that he was entitled to a jury instruction on “voluntariness” because he did not intentionally consume an intoxicating substance. The defendant in that case took prescription medications on a daily basis—taking Ultram, and sometimes Soma, in the morning and taking Ambien at night. However, on the day of the incident, the defendant took Ambien in the morning and was later involved in an auto accident. The defendant contended that he was entitled to a defensive instruction on voluntariness because there was evidence that he took the Ambien by mistake, thinking it was Soma.

411 S.W.3d 901, 902 (Tex.Crim.App.2013).


Id.


Id.


Id.
at 902–03.


We explained that DWI is a strict-liability crime, “meaning that it does not require a specific mental state (e.g., intentionally, knowingly, or recklessly intending to operate a motor vehicle while intoxicated), only a person on a public roadway voluntarily operating a motor vehicle while intoxicated.” Rejecting the defendant's claim, we found in essence that the defendant was at least negligent with respect to whether he was taking an intoxicating substance. We contrasted the defendant's case with Torres v. State, where we had held that the defendant was entitled to an instruction on involuntary intoxication because there was evidence that someone had, without her knowledge, slipped an intoxicating substance into her beverage. Because the defendant in Farmer had some culpability for consuming an intoxicating substance, he was in a similar position to someone who consumed “that first drink” and, therefore, was responsible for ascertaining whether he was or would be intoxicated when he drove.

Id. at 905.


Id.
at 907–08 (“Stated another way, this is not a case of unknowingly or unwillingly taking pharmaceutical medication (similar to Torres ); this is a case of knowingly taking pharmaceutical medication but mistakenly taking the wrong one. While we may be sympathetic to a ‘mistake,’ Appellant was involved in two accidents because of his ‘mistake.’ Even if Appellant took the medication in error, that error was made because Appellant did not take the time to verify the medication he was taking, although he knew that he was prescribed medications that could have an intoxicating effect.”).


Id.
at 907–08 & n. 9; Torres v. State, 585 S.W.2d 746, 748–49 (Tex.Crim.App. [Panel Op.] 1979).


See
Lomax, 233 S.W.3d at 305 n. 7. See also Powell, 392 U.S. at 535 n. 27, 88 S.Ct. 2145.


We agreed in Farmer that a defendant such as the one in Torres, who was not culpable with respect to consuming an intoxicating substance, should be entitled to a defensive instruction. Regardless of whether our statutes require such a result, I think that due process does. Inflicting harsh punishment for the offense of DWI upon a person who lacks any culpability for consuming an intoxicating substance and also lacks any culpability for driving while intoxicated violates fundamental notions of justice.

Farmer, 411 S.W.3d at 907 n. 9.


The second case that I find instructive is Celis v. State, where the defendant was charged with falsely holding himself out as a lawyer. The defendant in that case contended that he was entitled to a culpable-mental-state instruction or a mistake-of-fact instruction on whether he believed that he was licensed to practice law. He claimed that such an instruction was raised by evidence that he believed himself to be authorized to practice law in Mexico. We rejected the defendant's claim in part because “[a]cting as a lawyer is highly regulated conduct” and, therefore, the legislature has “placed the burden of complying with conditions imposed for the protection of the public upon those who hold themselves out as lawyers for profit, rather than placing upon the public the burden of determining whether an individual is qualified and eligible to provide legal services.” A defendant who holds himself out as a lawyer acts with at least some degree of mental culpability because he should be aware of the probability of strict regulation of the legal profession, even if he lacks a culpable mental state with respect to whether he is validly licensed.

416 S.W.3d 419, 421 (Tex.Crim.App.2013).


Id.
at 422.


Id.
at 421.


Id.
at 425–27.


The statute does not explicitly assign a culpable mental state to the act of holding oneself out to be a lawyer, see Tex. Penal Code§ 38.122(a), but it is hard to imagine how someone could hold himself out to be a lawyer without knowing that he is doing so, much less without at least a culpable mental state of negligence with respect to that conduct.


F. Summary

To summarize, every person in this country has a fundamental right to be free from harsh criminal punishment when mental culpability is entirely absent. Mental culpability is entirely absent if, and only if, the person lacks a culpable mental state with respect to (1) an element of the offense that is crucial to imposing criminal liability, and (2) the existence of facts that would place him on notice of the probability of strict regulation that would impose a duty to ascertain whether his conduct violates the law. The term “culpable mental state” in this context is broadly defined, including more than simply those that are statutorily recognized and embracing even the concept of ordinary negligence. Many so-called strict-liability offenses contain at least an implied culpable mental state with respect to facts that give notice of the probability of strict regulation. When that is the case, the strict-liability offense in question does not involve a fundamental right because it does not impose criminal liability on a person who entirely lacks any mental culpability. But some offenses do not require any mental culpability at all. This latter type of offense imposes a “rigorous” form of strict liability and implicates a fundamental right if the offense carries harsh penalties and the offense is applied to a person who entirely lacks any mental culpability. When a fundamental right is implicated, application of a rigorous strict-liability offense violates due process unless it is narrowly tailored to serve a compelling state interest.

III. CHILD SEX OFFENSES

A. Status Throughout the Nation

I begin my discussion of child sex offenses by acknowledging that the Supreme Court has recognized sex offenses as an exception to the deeply rooted notion that criminal liability must depend upon a “vicious will.” This exception may be less than it appears when one considers that the term “vicious will” was not necessarily understood by the Supreme Court to encompass all types of mental culpability—it meant an “evil-meaning mind,” not necessarily a negligent mind.

Morissette, 342 U.S. 246, 251 & n. 8, 72 S.Ct. 240.


Id. See also
this opinion, ante.


Nevertheless, “[p]rior to 1964, it was the universally accepted rule in the United States that a defendant's mistaken belief as to the age of a victim was not a defense to a charge of statutory rape.” California was the first to break with such precedent, holding that a good-faith and reasonable belief that a victim was over the age of consent was a defense to statutory rape. The Court of Appeals for the Armed Forces has noted that one state imposes a culpable mental state with respect to age as an element of the crime (Ohio) while twenty other states currently allow for some form of mistake-of-age defense for sex offenses involving children —although only four (Alaska, Indiana, Kentucky, and Washington) allow such a defense regardless of the child's actual age. Just four states—Alaska, California, New Mexico, and Utah—have ever recognized a mistake-of-age defense without specific statutory authorization. Of those four states, California and New Mexico remain the only states operating under a judicially created mistake-of-age defense. Alaska has codified its defensewhile Utah has statutorily disallowed such a defense. Utah's Supreme Court subsequently upheld as constitutional the statute disallowing a mistake-of-age defense. Alaska is the only jurisdiction that has suggested that a mistake-of-age defense is constitutionally required, and the Supreme Court of Alaska later clarified that its due-process holding was based upon its state constitution. Meanwhile, we have long construed various statutes proscribing child sex offenses as not allowing for a mistake-of-age defense.

Colin Campbell, Mistake or lack of information as to the victim's age as defense to statutory rape, 46 A.L.R.5th 499, summary (1997, 2013).


Id.;
People v. Hernandez, 61 Cal.2d 529, 39 Cal.Rptr. 361, 393 P.2d 673 (1964).


United States v. Wilson,
66 M.J. 39, 43–44 & n. 8 (C.A.A.F.2008).


See id.
(citing statutes from Alaska, Indiana, and Kentucky). The Court of Appeals for the Armed Forces stated that only three states have done so, but my research indicates that a fourth state—Washington—allows a defense regardless of the child's actual age. Wash. Rev.Code Ann.§ 9A.44.030(2), (3).


Wilson,
66 M.J. at 43 (citing Hernandez; Perez v. State, 111 N.M. 160, 803 P.2d 249 (N.M.1990) ; State v. Elton, 680 P.2d 727 (Utah 1984) ; State v. Guest, 583 P.2d 836 (Alaska 1978) ).


Id.
The Court of Appeals for the Armed Forces stated that California is the only remaining state, id., but my research has failed to uncover a statutory source of authority for New Mexico's defense beyond the New Mexico Supreme Court's holding in Perez.


Wilson,
66 M.J. at 43–44 & n. 8.


Id.
at 43–44 & n. 9. See also State v. Jimenez, 284 P.3d 640, 643 n. 4 (Utah 2012).


State v. Martinez,
52 P.3d 1276, 1280–81 (Utah 2002).


See
Guest, 583 P.2d at 838–39.


State v. Fremgen,
914 P.2d 1244, 1245–46 (Alaska 1996). See also Martinez, 52 P.3d at 1281 n. 8 (referring to Alaska's holding as based on its state constitution); Owens v. State, 352 Md. 663, 675 n. 6, 724 A.2d 43, 49 n. 6 (1999) (same).


See
Black v. State, 26 S.W.3d 895, 898–99 (Tex.Crim.App.2000) ; Zachary v. State, 57 Tex.Crim. 179, 182–83, 122 S.W. 263, 265–66 (1909).


Deciding that the submission of a mistake-of-age defense is sometimes required by the Due Process Clause of the United States Constitution would be breaking new ground, but doing so would be necessary if logic and precedent seem to require it and if such a holding were based, at least in part, upon a relatively new development in the law. As I shall further explain, logic and precedent do seem to require such a holding, and there is at least one relatively new, relevant development in the law: Lawrence v. Texas.

B. Harsh Punishment

In this country, people have a fundamental right not to be punished harshly when mental culpability is entirely absent. The first question to address, then, is whether the Texas legislative scheme imposes harsh punishments for the commission of child sex offenses. I also consider whether this is a new development.

Historically, Texas law included rape of a child within the offense of rape, which carried heavy penalties. As early as 1879, the offense of rape, including rape of a child with or without consent, carried a punishment range of “death or ... confinement in the penitentiary for life, or for any term of years not less than five.” The modern Penal Code has spread out the proscribed conduct into several different provisions with punishments that range from two years to life, depending on the age of the victim and the seriousness of the conduct.

Tex. Penal Codearts. 528, 534 (1879).


See
Tex. Penal Code§§ 21.02 (25 to 99 years or life), 21.11(a)(1), (d) (second-degree felony), 22.011(a)(2), (f) (first- or second-degree felony), 22.021(a)(1), (2)(A), (B), (e), (f) (first-degree felony, minimum 25 year sentence under certain circumstances); 43.25(b), (c) (second-degree felony, first-degree felony if child under age 14). See also id. §§ 12.32 (5 to 99 years or life for first-degree felony), 12.33 (2 to 20 years for second-degree felony).


One relatively new development that has made convictions for sex offenses more burdensome to offenders is the registration system. That system, which often requires registration for life, damages an offender's reputation by giving notice to the public and law-enforcement agencies of the defendant's sex-offender status. Further, if a jury were inclined to be lenient with respect to punishment because it believed that the defendant made a reasonable mistake about the child's age, it could not do anything about the burdens imposed by the registration system. Even without the registration system, child sex offenses are and have always been serious crimes in Texas. They are a far cry from mere public-welfare offenses that carry only light penalties. Thus, for the purpose of determining whether a fundamental right is involved, Texas does indeed impose harsh punishments for child sex offenses. And though harsh punishment itself is not new, the burden of registration is relatively new.

See Tex.Code Crim. Proc.,Ch. 62, generally.


See id.
art. 62.101.


See
Staples, 511 U.S. at 618, 114 S.Ct. 1793 (“public welfare” label not apt for offense that is a felony). See also Guest, 583 P.2d at 838 (“Statutory rape may not appropriately be categorized as a public welfare offense. It is a serious felony.”).


As I have explained above, the registration requirement is a burden the finder of fact can do nothing about, and that is true even if the finder of fact believed that the defendant was entirely blameless with respect to whether he was dealing with a child. Responding to my comments regarding sex offender registration, Judge Alcala's concurring opinion takes issue with the idea that a defendant who has sexual relations with a child under fourteen could ever be blameless because, in her view, that idea is contrary to what the legislature has enacted. Elsewhere, the concurring opinion contends that the legislature has not acted unreasonably or arbitrarily in this regard. As has been discussed above, and will be further discussed below, the legislature is not always the final word on what constitutes blameworthy behavior. The legislature does not have carte blanche to impose criminal liability on those who are factually blameless. And as will be seen below, the concurring opinion uses the wrong standard when it asks whether the legislature has “acted unreasonably or arbitrarily.” That is the standard for a “rational basis” review, which is inapplicable if the law infringes upon a fundamental right. In any event, I do not contend that the severity of punishment is sufficient, by itself, to require the imposition of an affirmative defense of mistake of age. There is far more to my substantive-due-process argument, which I expound upon further below.


C. Mental Culpability

1. Rationales for Strict Liability

The next question to address is whether child sex offenses impose a rigorous form of strict liability—liability without any mental culpability whatsoever. I also consider whether this is a new development. A number of reasons for imposing strict liability for child sex offenses have been articulated, but they generally fall within two overarching types of rationales: (1) that the defendant in such a situation knows or should know that his conduct is, in some manner, wrongful or risky, and (2) that children need to be protected. The first type of rationale relates to whether the defendant possesses some sort of mental culpability, and thus, to whether a fundamental right is implicated. If he knows or should know that his conduct is wrongful or risky, then he may be said to possess some mental culpability, under the broad constitutional definition, even if he does not possess a specific culpable mental state regarding the age of the child. The second type of rationale—protecting children—does not speak to whether the defendant possesses any mental culpability and, therefore, is not relevant to whether a fundamental right is implicated. Rather, the protecting-children rationales are relevant to the next step in the substantive-due-process analysis: whether legislation is narrowly tailored to serve a compelling state interest. Consequently, I focus first on the wrongful-conduct rationales to determine whether a fundamental right is even implicated. Wrongful-conduct rationales take various forms, but most of them share a similar focus, and, as a group, I will call them the “peril” rationales. These are the rationales that are generally used to justify strict-liability offenses, and they say that something about the defendant's conduct places him on notice that he acts at his peril and must take care to avoid violating the law. Some courts have said that a person who engages in sexual relations with an individual who is not his spouse is engaging in conduct that constitutes the crime of fornication, and because the defendant knows or should know that such conduct is a crime, he assumes the risk that he may be committing a crime involving someone under the age of consent. In an early case, we also articulated this rationale.

See Collins v. State, 691 So.2d 918, 923 (Miss.1997) ( “Historically, there have been two basic rationales for statutory rape laws. The first rationale is the need for strict accountability to protect young girls. The second rationale is the premise that the defendant's intent to commit statutory rape can be derived from his intent to commit the morally or legally wrongful act of fornication.”).


See also
this opinion, part IIC.


Holton v. State,
28 Fla. 303, 308, 9 So. 716, 717 (1891) ( “It is unlawful per se to carry on such practices with any female not the lawful wife of the malfeasor, and we think that the offense here, so far as intent is involved, comes within the rule, that a man shall be held responsible for all the consequences of his wrongdoing. By having illicit intercourse with any female he violates the law; should it turn out that the partner in his crime is within the prohibited age, he will not be allowed to excuse himself by asserting ignorance as to her age.”); Commonwealth v. Murphy, 165 Mass. 66, 70, 42 N.E. 504, 505 (1895) (“The defendants in the present cases knew they were violating the law. Their intended crime was fornication at the least. It is a familiar rule that, if one intentionally commits a crime, he is responsible criminally for the consequences of his act if the offence proves to be different from that which he intended.”); Collins, 691 So.2d at 923 (intent to commit statutory rape derived from the legally or morally wrongful act of fornication). See also Guest, 583 P.2d at 839 (referring to, but rejecting, position of other jurisdictions that conduct can be punished as rape because the actor at least understood that he was committing the crime of fornication); Elton, 680 P.2d at 730 (same).


Edens v. State,
43 S.W. 89, 89 (Tex.Crim.App.1897) (quoting McClain, Cr. Law, § 451: “Where the offense is in having connection with a child under the age of consent, belief on the part of the defendant that she was over the age of consent, and that, therefore, consent on her part would prevent the act from being criminal, cannot be shown. Connection with a child under the age of consent being criminal, one who has connection with a female which would, in any event, be unlawful, must know at his peril whether her age is such as to make the act a rape.”).


Other courts, including our Court, have taken the position that fornication at least violates societal morals, causing the actor to assume the risk that his consort is underage:

While, within principles explained in another connection, no one is ever punishable for any act in violation of law whereto, without his fault or carelessness, he was impelled by an innocent mistake of facts, this rule does not free a man from guilt of his offense by reason of him believing, on whatever evidence, that the girl is above the statutory age. His intent to violate the laws of morality and the good order of society, though with the consent of the girl, and though in a case where he supposes he shall escape punishment, satisfies the demands of the law, and he must take the consequences.
Nebraska takes the position that a reasonable mistake about a victim's age is no defense because it is not unfair “to require one who gets perilously close to an area of proscribed conduct to take the risk that he may cross over the line.” It is not clear what constitutes “getting perilously close to proscribed conduct” with respect to the victim's age, but the statement was derived from a case in which the issue was whether there should be a defense based upon a reasonable mistake of fact regarding whether the underage victim was “chaste.” A defendant who had sexual relations with an underage female took his chances on whether she was chaste.

Zachary, 57 Tex.Crim. at 183, 122 S.W. at 265–66 (quoting Bishop, Statutory Crimes, § 490); Edens, 43 S.W. at 89 (same); Territory v. De los Santos, 42 Haw. 102, 106 (1957) (same); State v. Houx, 109 Mo. 654, 661, 19 S.W. 35, 37 (1891) (quoting second sentence only, from Wharton on Criminal Evidence, § 724). See also Collins, 691 So.2d at 923 (citing 6 Am.Jur.2d, Proof of Facts, § 2 (1975)); State v. Wade, 224 N.C. 760, 761, 32 S.E.2d 314, 315 (1944) (quoting 44 Am.Jur., § 41, p. 926: “In any event, he has committed a moral wrong [sexual intercourse with an unmarried female], and he was bound to know, at his peril, that her age was such that consent on her part would prevent the act from being rape.”).


State v. Vicars,
186 Neb. 311, 312–14, 183 N.W.2d 241, 242–43 (1971).


Id.


Citing Bowers v. Hardwick, Maryland's high court has suggested an even broader form of “peril” rationale, in line with holdings for public-welfare offenses: “that a person has no constitutional right to engage in sexual intercourse, at least outside of marriage, and sexual conduct is frequently subject to state regulation.” The Supreme Court of Massachusetts has also suggested a relationship between the rule of strict liability for child sex offenses and the rationale for strict liability for public-welfare offenses.


Murphy,
165 Mass. at 70, 42 N.E. at 505.


Aside from the “peril” rationales, there is another rationale that I will call the “empirical” rationale. This rationale holds that, as an empirical matter, an adult who observes and interacts with a child knows or should know from that observation and interaction that the child is underage. The Maryland court seems to have taken this position, arguing that strict liability with respect to the victim's age is permissible in part because a perpetrator who “confronts the underage victim personally ... may reasonably be required to ascertain that victim's age.” As will be discussed later, the main drawback of the empirical rationale is that it is not true in every case.

Owens, 352 Md. at 680, 724 A.2d at 51. The Maryland court elaborated, “Indeed, it is hard to imagine when a defendant, necessarily four years older than the victim ... would be ‘morally blameless' when he or she engages in sexual intercourse with a child as young as age 13.” Id. at 680–81, 724 A.2d at 51–52.


2. Statutory Developments

Three statutory developments in Texas may undercut these rationales. The first is the abolition of the offense of fornication. The legislature repealed the statutes outlawing fornication and adultery in 1973. To the extent that one might, in the past, have argued that a person necessarily possessed a mental culpability with respect to risky or dangerous circumstances because engaging in sexual relations with a non-spouse was a crime, that rationale no longer applies. But as explained above, our Court also explicitly articulated a rationale based on societal morals rather than merely on the illegality of fornication.

See City of Sherman v. Henry, 910 S.W.2d 542, 551 n. 4 (Tex.App.-Dallas 1995) (citing Tex. Penal Code Ann.art. 503 (Vernon 1925), repealed by Act of June 14, 1973, 63d Leg., R.S., ch. 399, § 1973 Tex. Gen. Laws 883, 992 (fornication); Tex. Penal Code Ann.art. 499 (Vernon 1925), repealed by Act of June 14, 1973, 63d Leg., R.S., ch. 399, § 1973 Tex. Gen. Laws 883, 992 (adultery)).


The second development is the fact that the age of consent has risen throughout the years. In 1879, sexual relations with a consenting child was rape only if the child was “a female under the age of ten.” In 1895, such conduct became rape only if the child was a “female under the age of fifteen years, other than the wife” of the actor. In 1925, such conduct became rape if the child was a female under the age of eighteen and was not the wife of the actor, but it was a defense if the actor could show that the child was at least fifteen, consented, and “was not of previous chaste character.” In 1974, various child sex offenses proscribed various forms of sexual conduct with a child younger than seventeen (who was not a spouse), but it was a defense that the child was at least fourteen and had a history of engaging promiscuously in the sexual conduct. The promiscuity defense was deleted from the various child sex offenses in 1994. Our state's modern child-sex-offense statutes generally provide an age of consent of seventeen, with younger ages resulting in an aggravated offense or an aggravated punishment, but one Texas statute criminalizes sexual conduct involving a child under age eighteen. Texas retains a defense for consensual sexual relations with a child fourteen years or older who is the spouse of the actor.

Tex. Penal Codeart. 528 (1879).


Tex. Penal Codeart. 633 (1895).


Tex. Penal Codeart. 1183 (1925).


Tex. Penal Code§§ 21.09, 21.10, 21.11 (Vernon's 1974).


Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994 (amending Tex. Penal Code§§ 21.11, 22.011 ).


Tex. Penal Code§§ 21.11(a), 22.011(c)(1).


Id.
§§ 21.02(b)(2) (age 14), 22.021(a)(2)(B), (f)(2) (same), 22.021(f)(1) (age 6).


Tex. Penal Code§ 43.25(b) (“A person commits an offense if, knowing the character and content thereof, he ... induces a child younger than 18 years of age to engage in sexual conduct....”). At one time, it was an affirmative defense to prosecution under this provision if the actor “in good faith, reasonably believed that the child ... was 18 years of age or older.” See Tex. Penal Code§ 43.25(f)(1) (West 2000). This affirmative defense no longer exists. See Tex. Penal Code§ 43.25, passim (current).


Id.
§§ 21.11(b–1), 22.011(e)(1), 43.25(f)(1). See also id. §§ 21.02, 22.021 (applying to children under age 14 and providing no spousal defense). The discussion of defenses here is historical and illustrative and is not an attempt to comprehensively catalogue the various defenses that apply to sexual offenses involving children.


It appears that the rising age of consent has been a trend in other states as well. The Supreme Court of California has suggested that the purpose of the rule that a defendant acts “in peril” with respect to the child's age has been undermined by statutory increases in the age of consent. In Hernandez, that court noted that the Model Penal Code prescribes a mistake-of-age defense when the criminality of any conduct depends on the child being under a specified age that is higher than ten. The court also quoted from a commentator who criticized the logic of applying strict liability after the age of consent had been raised above ten:

People v. Cash, 419 Mich. 230, 244 & n. 11, 351 N.W.2d 822, 827–28 & n. 11 (1984).


Id.
at 533 n. 2, 39 Cal.Rptr. 361, 393 P.2d at 676 n. 2.


When the law declares that sexual intercourse with a girl under the age of ten years is rape, it is not illogical to refuse to give any credence to the defense, “I thought she was older, and I therefore did not believe that I was committing a crime when I had sexual intercourse with her.” ... But when age limits are raised to sixteen, eighteen, and twenty-one, when the young girl becomes a young woman, when adolescent boys as well as young men are attracted to her, the sexual act begins to lose its quality of abnormality and physical danger to the victim. Bona fide mistakes in the age of girls can be made by men and boys who are no more dangerous than others of their social, economic and educational level.... Even if the girl looks to be much older than the age of consent fixed by the statute, even if she lies to the man concerning her age, if she is a day below the statutory age sexual intercourse with her is rape. The man or boy who has intercourse with such girl still acts at his peril. The statute is interpreted as if it were protecting children under the age of ten.

Id. at 534 n. 3, 39 Cal.Rptr. 361, 393 P.2d at 676 n. 3 (quoting Plascowe, Sex and Law,184–85 (1951)) (emphasis in Hernandez ).


Michigan's high court has rejected the argument that the increased age of consent has undermined the rationale for strict-liability offenses, and other courts have expressly declined to follow the California Supreme Court's ultimate holding in Hernandez. Furthermore, Hernandez was not decided on constitutional grounds. I do not believe that the rise in the age of consent is alone sufficient to undermine the “peril” rationales, but it is a factor to consider.


State v. Superior Court of Pima County,
104 Ariz. 440, 442–43, 454 P.2d 982, 984–85 (1969) ; State v. Silva, 53 Haw. 232, 232–33, 491 P.2d 1216, 1216–17 (1971) ; State v. Stiffler, 117 Idaho 405, 409, 788 P.2d 220, 224 (1990) ; Garnett v. State, 332 Md. 571, 583–85, 632 A.2d 797, 803–04 (1993) ; Commonwealth v. Miller, 385 Mass. 521, 522–23, 432 N.E.2d 463, 464–65 (1982) ; State v. Morse, 281 Minn. 378, 384–85, 161 N.W.2d 699, 703 (1968) ; Navarrete, 221 Neb. at 174–75, 376 N.W.2d at 11 ; Goodrow v. Perrin, 119 N.H. 483, 488–89, 403 A.2d 864, 868 (1979) ; State v. Yanez, 716 A.2d 759, 763–66 (R.I.1998) ; State v. Fulks, 83 S.D. 433, 436–37, 160 N.W.2d 418, 419–20 (1968), overruled on other grounds by State v. Ree, 331 N.W.2d 557 (1983) ; State v. Jadowski, 272 Wis.2d 418, 441 n. 49, 680 N.W.2d 810, 822 n. 49 (2004).


Hernandez,
61 Cal.2d at 536, 39 Cal.Rptr. 361, 393 P.2d at 677 (“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.”).


A third potentially relevant statutory development in Texas is the dramatic increase in the length of the period of limitations applicable to child sex offenses. In 1974, all sex offenses had a limitation period of one year. The short limitation period might have provided a certain amount of protection for someone who reasonably, but mistakenly, believed that he was dealing with an adult. But limitation periods have progressively lengthened for child sex offenses. Now there is no limitation for the prosecution of most child sex offenses.

See Tex.Code Crim. Proc. Ann.art. 12.01, historical note (Vernon's 1977) (referring to 1975 amendment deleting subd. (4), which had read: “one year from the date of the commission of the offense: any felony in Penal Code Chapter 21 (Sexual Offenses)”).


This might have occurred through the exercise of prosecutorial discretion. See Morse, 281 Minn. at 385, 161 N.W.2d at 703 (“There may be cases where an application of [a law providing that criminal intent does not require proof of knowledge of the age of a child] leads to an unjust result. This is not one of them. In fact situations where the underage female is the aggressor and her male partner the real victim, it is likely that the good judgment of prosecutors and jurors will prevent a miscarriage of justice.”).


See
Tex.Code Crim. Proc. Ann.art. 12.01, historical note (Vernon's 1977) (1975 amendment removed one-year provision so that sex offenses would fall within catch-all provision prescribing three-year limitation period for felonies); Tex.Code Crim. Proc.art. 12.01(4)(C) (1996) (five-year limitation period); Tex.Code Crim. Proc.art. 12.01(5)(C) (1998) (for aggravated sexual assault of a child, limitation period of ten years from victim's eighteenth birthday).


Tex.Code Crim. Proc.art. 12.01(1)(B), (D), (E).


I do not question the wisdom of the legislature in enacting various changes in the law with respect to child sex offenses. Much more information exists now than in the past about child sex offenses that might support the wisdom of, among other changes, higher ages of consent and longer periods of limitation, including grooming conduct engaged in by perpetrators and the characteristics of child-sex-abuse victims. I mean only to point out that, in accomplishing otherwise laudable purposes, some of these changes have stripped away certain protections from those who acted reasonably and in good faith. This is not determinative of the issue before us but provides some background to assess what I see as the truly new and important legal development that changes the fundamental-rights analysis in this case.

See Morris v. State, 361 S.W.3d 649 (Tex.Crim.App.2011) and Cohn v. State, 849 S.W.2d 817 (1993).


3. Lawrence v. Texas

That development is the Supreme Court's decision in Lawrence v. Texas. To understand the impact of Lawrence, we must first understand the decision it overruled, Bowers v. Hardwick. In 1982, Hardwick was charged with violating a Georgia statute criminalizing sodomy for committing that act with another adult male in the bedroom of his home. In addressing the case, the Supreme Court framed the issue as “whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy” and held that it did not. The Court stated that the claimed right to engage in homosexual sodomy did not bear any resemblance to rights of privacy that had previously been recognized as protected by due process because “[n]o connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated.” In response to Hardwick's argument that the majority of the Georgia's electorate's belief that homosexual sodomy is immoral did not constitute a rational basis for a law outlawing the practice, the Supreme Court noted that, “The law ... is constantly based on notions of morality.”


Id.
at 190, 106 S.Ct. 2841.


Id.
at 191, 106 S.Ct. 2841.


Id.
at 190, 106 S.Ct. 2841.


Id.
at 196, 106 S.Ct. 2841.


In Lawrence, the Supreme Court reversed course and overruled Hardwick. The Court criticized the Hardwick decision's framing of the issue as “whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy” as “disclos[ing] the Court's own failure to appreciate the extent of the liberty at stake.” The Lawrence Court pointed to what it called “an emerging awareness” from the past half-century “that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.” The Court found that this liberty belongs to all adults, whether male or female, heterosexual or homosexual:


Id.
at 566–67, 123 S.Ct. 2472.


Id.
at 571–72, 123 S.Ct. 2472.


It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.

Id. at 567, 123 S.Ct. 2472.


And the Court found that this liberty belongs not only to married persons but also to unmarried persons:

[I]ndividual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of “liberty” protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.

Id. at 578, 123 S.Ct. 2472 (quoting Justice Stevens's dissent in Hardwick and concluding, “Justice Stevens'[s] analysis, in our view should have been controlling in [Hardwick ] and should control here.”).


Addressing the point made in Hardwick that “for centuries there have been powerful voices to condemn homosexuality as immoral,” the Court responded, “Our obligation is to define the liberty of all, not to mandate our own moral code.” Although a violation of the Texas statute outlawing homosexual conduct was punished as a mere Class C misdemeanor (fine-only offense), the Court observed that the conviction would nevertheless be on the defendant's record and it would come within the sex-offender registration laws of at least four States. The Court found that this fact “underscores the consequential nature of the punishment and the state-sponsored condemnation attendant to the criminal prohibition.”

Id. at 571, 123 S.Ct. 2472.


Id.
at 575–76, 123 S.Ct. 2472.


Id.
at 576, 123 S.Ct. 2472.


Finally, the Court emphasized that the case before it involved consenting adults in a private setting. The case did not involves minors, public conduct, injury or coercion, relationships where consent might not easily be refused, or prostitution.

Id. at 578, 123 S.Ct. 2472.


Id.


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. 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,” 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.

Cf. Owens, 352 Md. at 684, 724 A.2d at 53 (pre-Lawrence decision stating that “[t]he crime of statutory rape also does not implicate other constitutional rights that heighten our level of inquiry”).


Catherine L. Carpenter, On Statutory Rape, Strict Liability, and the Public Welfare Offense Model, 53 Am. U.L. Rev.313, 320–21 (2003).


Arnold Loewy, Statutory Rape in a Post Lawrence v. Texas World, 58 SMU L.Rev.77, 77 (Winter 2005) ; Carpenter at 321. See also Jarrod Foster Reich, Note, “No Provincial or Transient Notion”: The Need for a Mistake of Age Defense in Child Rape Prosecutions, 57 Vand. L.Rev.693, 723–25 (March 2004) (“If a person honestly and reasonably believes certain facts that would make his conduct fall within Lawrence 's constitutionally protected private sphere, he should not be criminally punished for an act committed under this mistaken belief.”).


Few jurisdictions have addressed the impact of Lawrence on a defendant's eligibility for a mistake-of-age defense in “statutory rape” type prosecutions (i.e. prosecutions for child sex offenses that impose liability on the basis of the child's age for what would otherwise be consensual sexual conduct). The Supreme Court of Wisconsin's Jadowski case addressed a mistake-of-age due-process claim within a year after Lawrence was decided but did not cite it. The Supreme Court of North Dakota has recently rejected a mistake-of-age due-process claim without mentioning Lawrence. In Wilson, the Court of Appeals for the Armed Forces cited Lawrence but decided the mistake of-age question as a matter of federal statutory law. The Supreme Court of New Hampshire discussed Lawrence and maintained that the imposition of strict liability for child sex offenses was permissible because such imposition was grounded in part on reasons other than the intent to commit the wrongful act of fornication, though it appears that the court may not have been responding to a constitutional claim. Aside from the court below, I am aware of two intermediate appellate courts that have held that Lawrence did not affect a defendant's eligibility for a mistake-of-age instruction because the sexual conduct was in fact committed against a minor and Lawrence

See Jadowski, 272 Wis.2d at 438–442, 680 N.W.2d at 820–22.


State v. Vandermeer,
843 N.W.2d 686, 691 (N.D.2014).


Wilson,
66 M.J. at 41 & passim.


State v. Holmes,
154 N.H. 723, 727–28, 920 A.2d 632, 635–36 (2007) (“We decided Goodrow, however, assuming, without deciding, that the plaintiff had a constitutionally protected privacy right to engage in consensual heterosexual intercourse with other adults.... Thus, the developments in the law since we decided Goodrow would not change our analysis. Moreover, intent to commit the then-legally wrongful act of fornication was only one of the rationales for statutory rape laws.”).


Id.
at 725, 727, 920 A.2d at 634, 635 (“The defendant first contends that we failed to interpret the statutory rape provision ... and its predecessors, correctly in our prior cases because we did not take into account another provision of the Criminal Code.... The defendant next asserts that because adult consensual sexual relationships are not as regulated as they were when we decided our prior cases, there is no longer any justification for permitting strict liability for statutory rape.”).


's holding does not apply to minors.

State v. Browning, 177 N.C.App. 487, 492, 629 S.E.2d 299, 303, review denied, 360 N.C. 578, 635 S.E.2d 902 (2006) ; United States v. Bazar, 2012 WL 2505280, *7, 2012 CCA LEXIS 242, *20–21 (A.F.C.C.A. June 29, 2012, review denied).


But the courts that say simply that Lawrence does not apply when a minor is involved have missed the point—making the same mistake ascribed by the Lawrence court to the Hardwick decision: having an overly narrow concept of the right at stake. If the defendant non-negligently believed that he was having consensual sex with an adult, then he non-negligently believed in the existence of circumstances that would constitutionally protect him from liability under Lawrence. Such a non-negligent belief would negate the existence of even the most minimal sort of mental culpability. In any event, at least three of the post-Lawrence cases involved a defendant who believed that the complainant was seventeen. As I shall explain below, a belief that the complainant was under age eighteen but over the age of consent does not qualify, for constitutional purposes under Lawrence, as a belief that the complainant was an adult.

Vandermeer, 843 N.W.2d at 691 ; Holmes, 154 N.H. at 723, 920 A.2d at 632 ; Bazar, 2012 WL 2505280, *7, 2012 CCA LEXIS 242, *20.


4. Limits of Lawrence's Holding

Lawrence 's holding was limited to adults. While the Court's opinion in Lawrence did not explicitly say what age qualifies as adulthood, the United States Constitution and Supreme Court jurisprudence draw a distinct line at the age of eighteen. One must be at least eighteen years of age to vote. Persons under eighteen years of age are considered juveniles for Eighth Amendment purposes, rendering 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 “[t]he 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.The statutory age of consent is irrelevant in deciding what the Constitution requires. Constitutionally, it does not matter that a defendant lacked a culpable mental state with respect to the age of consent, if that age is younger than eighteen. The constitutional alchemy kicks in only when the defendant lacks a culpable mental state with respect to whether the child was in fact a child. For the “peril” rationales to be negated under Lawrence, a person must non-negligently believe that his sexual partner is eighteen years of age or older. A person who knows or should know that he is dealing with a child—that is, someone under age eighteen—continues to act at his peril that the child may be younger than he supposes.

U.S. Const.,Amend. 26, § 1.


Roper v. Simmons,
543 U.S. 551, 578, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) ; Graham v. Florida, 560 U.S. 48, 81–82, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) ; Miller v. Alabama, ––– U.S. ––––, 132 S.Ct. 2455, 2460, 183 L.Ed.2d 407 (2012).


United States v. Wilson,
565 F.3d 1059, 1067 (8th Cir.2009) (“Although the First Amendment protects non-obscene adult pornography, sexually explicit materials involving persons under the age of 18 enjoy no constitutional protection.”) (citing New York v. Ferber, 458 U.S. 747, 764, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) ).


Simmons,
543 U.S. at 574, 125 S.Ct. 1183. Age eighteen is also the line drawn for determining whether the onset of mental disability qualifies a person as mentally retarded. Ex parte Briseno, 135 S.W.3d 1, 7 (Tex.Crim.App.2004).


See
Navarro v. Pfizer Corp., 261 F.3d 90, 107 (1st Cir.2001) (Campbell, J., dissenting) (referring to “the typical scenario in which, at and after age 18, a child may be regarded as having achieved substantial independence and self-sufficiency so as to be able to live on her own, support herself, and be ministered to by others than her parents”); Tyson v. Heckler, 727 F.2d 1029, 1032 (11th Cir.1984) (Kravitch, J., concurring) (“in light of the Twenty-sixth Amendment and the legislative trend toward using eighteen years of age as the age of majority, twenty-one no longer is a reliable benchmark of an individual's independence from his parents”).


In her article, “Texas Holds Him,” for Slate.com (posted October, 10, 2007), Dahlia Lithwick used the words, “That's where the real constitutional alchemy kicks in,” to describe Solicitor General Paul Clement's position in Medellin v. Texas that President Bush's memo to the Attorney General was the key factor that made a judgment by the International Court of Justice under the Vienna Convention treaty enforceable in Texas courts. The Supreme Court subsequently rejected Clement's position in Medellin v. Texas, 552 U.S. 491, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008).


For this reason, we should not quarrel with the results in the three post-Lawrence cases involving defendants who believed that their victims were seventeen years old because those defendants were at least culpable with respect to whether their victims were children. The results in a number of older cases could also be upheld on this basis.

See Gaines v. State, 354 Ark. 89, 99, 118 S.W.3d 102, 108 (2003) (defendant argued that “there appears to be no rationale why a victim['s] age is easier to ascertain when they are younger than fourteen as opposed to being fourteen or older”); Owens, 352 Md. at 667, 674, 724 A.2d at 45, 48 (victim told police officer that she was sixteen years old, issue before the court was “whether due process requires that Owens be allowed to defend the charge of statutory rape on the grounds that he reasonably believed that the victim was above the age of 13”); Murphy, 165 Mass. at 70, 42 N.E. at 504 (defendant asked for instruction that he could not be convicted unless he “knew or had good reason to believe that the girl was under sixteen years of age”); Cash, 419 Mich. at 236, 351 N.W.2d at 824 (defendant claimed that victim had said she was seventeen); Houx, 109 Mo. at 661, 19 S.W. at 37 (defendant sought to present testimony “tending to prove that he had reason to believe that the prosecutrix was ... over the age of twelve years”); Yanez, 716 A.2d at 766 (defendant claimed that victim told him that she was sixteen years old); Wade, 224 N.C. at 761, 32 S.E.2d at 315 (defendant testified that the victim told him that she was twelve); Zachary, 57 Tex.Crim. at 182, 122 S.W. at 265 (defendant claimed that victim had told him that she was over the age of fifteen years); Lawrence v. Commonwealth, 71 Va. 845, 855 (1878) (defendant sought instruction that the jury cannot find him guilty if it believed that the victim “stated to him she was twelve years old, and that he had reasonable cause to believe that she was twelve years old”).


The holding in Lawrence is limited in a few other respects, including the fact that it applies only to activity that is consensual and that it does not apply to prostitution. If a defendant commits a factually non-consensual sexual assault (e.g., by force) or hires a prostitute, the holding in Lawrence will not be available to negate his mental culpability. The various limitations of Lawrence also mean that Lawrence cannot be used to justify the submission of a lesser-included offense. If, even under the facts believed by him or that he ought to believe, the defendant's conduct would not be protected under Lawrence, then Lawrence 's holding is not available to negate the defendant's mental culpability, and the defendant can be held to have acted in peril that the facts are even worse than he supposes.


The trafficking of children for the purpose of prostitution is a recognized subject of international conventions. Velez v. Sanchez, 693 F.3d 308, 323 (2d Cir.2012).


5. The Empirical Rationale

The holding in Lawrence leaves room for what I have termed the empirical rationale for imposing strict liability for child sex offenses: that a person knows or should know from observing and interacting with an underage individual that the individual is in fact a child. There are undoubtedly ages at which, under all or most circumstances, it is simply not possible for a child to be reasonably mistaken for an adult. In responding to appellant's facial challenges to the aggravated-sexual-assault statute, the amicus brief offers the hypothetical of an adult male who causes his sexual organ to penetrate the anus or sexual organ of a two-year-old child. The amicus is exactly right that no reasonable adult would mistake the two-year-old for an adult. And the amicus is exactly right that this hypothetical, by itself, causes appellant's facial challenges to fail.

As the earlier discussion indicates, the post-Lawrence question is not whether, as an empirical matter, a person could mistake a child for an older child, e.g. a thirteen-year-old for a fourteen-year-old.


Submitted by the 35th Judicial District Attorney's office.


A statute that does not implicate First Amendment freedoms can be held unconstitutional on its face only if it is unconstitutional in all of its applications. State v. Rosseau, 396 S.W.3d 550, 557–58 (Tex.Crim.App.2013). See also Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008) (stating that, under United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), a party must establish that no set of circumstances exists under which the statute would be valid, and that while some members of the Court have criticized the Salerno formulation “all agree that a facial challenge must fail where the statute has a ‘plainly legitimate sweep.’ ”).


The amicus brief emphasizes that the offense at issue in the present case is aggravated sexual assault, involving a child under age fourteen, and the amicus argues that no fundamental right is involved in such a case. There is some support for this position. The Supreme Court of California, which first recognized a mistake-of-age defense to statutory rape, has indicated that children under age fourteen are considered “infants” or “of tender years” and that a mistake-of-age defense may “be untenable when the offense involved a child that young.” On the other hand, the California court's holding concerned the offense of lewd or lascivious conduct, and the court held that “the public policy considerations in protecting children under the age of 14 from lewd or lascivious conduct are substantial—far more so than those associated with unlawful sexual intercourse. The Court of Appeals of Maryland has noted that “Maryland's statutory rape law is less likely than a number of other state statutes to reach noncriminal sexual conduct since the victim in Maryland must be under fourteen years of age, while other states have adopted older ages of consent.” In any event, most states that allow a mistake-of-age defense disallow such a defense when the child's age drops below a certain threshold. There seems to be no unanimity as to the threshold age, however, with ages ranging from twelve to sixteen.

People v. Olsen, 36 Cal.3d 638, 645–46, 205 Cal.Rptr. 492, 685 P.2d 52, 56–57 (1984).


Id.
at 649, 205 Cal.Rptr. 492, 685 P.2d at 59 (emphasis added).


Owens,
352 Md. at 686 n. 15, 724 A.2d at 54 n. 15.


Ariz.Rev.Stat.§ 13–1407(B) (age 15); Ark.Code Ann.§ 5–14–102(b), (c), (d) (age 14 if actor is at least age 20); Colo.Rev.Stat.§ 18–1–503.5 (age 15); 720 Ill. Comp. Stat.5/11–1.60(c), (d) & 5/11–1.70(b) (age 13); Me.Rev.Stat.tit. 17–A §§ 253(1)(B), 254(1)(A), (2) (age 14); Minn.Stat.§§ 609.343(a), 609.344(a), (b) (age 13 or age 16 depending upon the relative age of the actor); Mo. Ann. Stat.§ 566.02(1), (2) (age 14); Mont.Code Ann.§ 45–5–511(1) (age 14); Perez, 111 N.M. at 162, 803 P.2d at 251 (age 13) ; N.D. Cent.Code§ 12.1–20–01 (age 15); Ohio Rev.Code Ann.§§ 2907.02(b), 2907.04(a) (age 13); Or.Rev.Stat.§ 163.325(1), (2) (age 16); 18 Pa. Cons.Stat.§ 3102 (age 14); Tenn.Code Ann.§§ 39–11–502(a), 39–13–504(a)(4), 39–13–522(a) (age 13); W. Va.Code Ann.§§ 61–8B–3, 61–8B–7, 61–8B–12 (age 12); Wyo. Stat.§ 6–2–308 (age 14).


See
this opinion, previous footnote.


Moreover, it is commonly known that some children enter puberty and mature before the age of fourteen and may look like an adult. As explained above, there are ages—such as age two—about which we can say, by virtue of the age alone, that it is simply not possible to reasonably mistake the child for an adult. But age thirteen is not such an age. It is true that the younger the child, the less likely it is that a mistake as to adulthood could reasonably be made. But the fundamental-rights question here—involving the defendant's mental culpability—does not turn upon what may generally be true about children of a certain age; it turns upon the defendant's mental culpability with respect to the child in question. D. Compelling Interests and Narrow Tailoring

See Olsen, 36 Cal.3d at 645–46, 205 Cal.Rptr. 492, 685 P.2d at 56 (court of appeals “recognizing that some females reach puberty below the age of 14”); United States v. Langley, 549 F.3d 726, 731–32 (8th Cir.2008) (Beam, J., concurring) (government's attorney stated in oral arguments, “[I]f you're dealing with a child over the age of twelve or thirteen and puberty has hit ... the government does not charge those cases unless you have someone to definitely state the age because it is difficult once a female in particular hits puberty to know exactly what age they are.”); Free Speech Coalition v. Holder, 957 F.Supp.2d 564, 578 (E.D.Pa.2013) (government witness, a medical doctor, testified that the classic literature suggests that girls reach full maturation between ages fourteen and sixteen, but he further testified that he had published literature suggesting that maturation for girls is actually occurring earlier, and he testified that determining one's age by visual inspection alone is an inexact science, with a two to five year margin of error, and that margin is greater for members of the public); Timothy J. v. Superior Court, 150 Cal.App.4th 847, 854, 58 Cal.Rptr.3d 746, 749 (Cal.App. 3rd Dist.2007, req. denied) (clinical and forensic neuropsychologist testified that a person reaches puberty around the ages of eleven, twelve, and thirteen); Frederic v. State, 770 So.2d 719, 720 (Fla.App. 4th Dist.2000), pet. dism'd, 817 So.2d 846 (2002) (victim's pregnancy showed that she had already reached puberty at age thirteen); Commonwealth v. Walter R., 414 Mass. 714, 717–18, 610 N.E.2d 323, 325 (1993) (holding in a juvenile-delinquency case that “there is no sound legal or medical basis for a presumption that an individual under fourteen is incapable of rape, as defined at common law” and commenting that medical information suggests that “[o]ver the past century, the onset of puberty has gradually occurred at a younger age, and currently begins between the ages of ten and twelve”); In re Frederick, 63 Ohio Misc.2d 229, 232 n. 1, 622 N.E.2d 762, 764 n. 1 (Court of Common Pleas, Cuyahoga Co., Juvenile Div.1993) (stating that the “average age of puberty for females is eleven to eleven and a half years, and as young as nine years is considered within the range of normal. The average age of puberty for males is twelve and a half to thirteen years”).


There are situations in which a somewhat arbitrary line with respect to a child's age can be drawn in a statute, such as when criminal conduct becomes a greater offense or is punished more severely if the child is below a certain age. See Black, 26 S.W.3d at 897–98 (capital murder of a child under age six). Arbitrary line drawing in those situations is permitted for policy reasons. Id. Such policy reasons are inapplicable to the question of whether, as a factual matter, a fundamental right is implicated because the defendant entirely lacked any mental culpability with respect to the complainant's status as a child.


It is beyond dispute that the State has a compelling interest in safeguarding the physical and psychological well-being of children. Protecting children is a widely articulated rationale for imposing strict liability for child sex offenses. Courts have variously held that strict-liability laws for child sex offenses are needed to prevent the exploitation of children by predators, to protect children from physical injury, to prevent teenage pregnancy, to protect children from sexually transmitted diseases, and to protect children from psychological injury and stigma. Strict-liability statutes have been said to achieve this goal of protecting children by deterring adults from engaging in the prohibited conduct and by making prosecutions easier by eliminating difficulties of proof that may occur due to the rapid physical development of children or the difficulty in rebutting a defendant's claims of mistake.

United States v. Stevens, 559 U.S. 460, 471, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) ; Osborne v. Ohio, 495 U.S. 103, 109, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990) (quoting New York v. Ferber, 458 U.S. 747, 756, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) ); Black, 26 S.W.3d at 897 (citing Henderson v. State, 962 S.W.2d 544, 562 (Tex.Crim.App.1997) (plurality op.)).


See
Gaines, 354 Ark. at 102, 118 S.W.3d at 109 (“[T]he state has an interest in the general welfare of children, and one of the most obvious duties is to protect children from sexual crimes against which children are virtually defenseless.”); Owens, 352 Md. at 681–82, 724 A.2d at 52 (“The case law testing the constitutionality of strict liability statutory rape law is unanimous in recognizing the significance of the potential harm caused by sexual activity involving children, even with their consent.”); Cash, 419 Mich. at 242, 244, 351 N.W.2d at 827, 828 (articulating “the need to protect children below a specified age from sexual intercourse on the presumption that their immaturity and innocence prevents them from appreciating the full magnitude and consequences of their conduct” and the need to protect children from the “possible physical or psychological harm from engaging in sexual intercourse”); Collins, 691 So.2d at 923 (articulating one basic rationale for statutory rape law as “the need for strict accountability to protect young girls”); Holmes, 154 N.H. at 727–28, 920 A.2d at 636 (quoting Collins (see above), citing other out-of-state cases, and quoting Goodrow, 119 N.H. at 486, 403 A.2d at 866 : “It is well established that the State has an independent interest in the well-being of its youth. One reason for this heightened interest is the vulnerability of children to harm. Another reason for the State's concern is that minors below a certain age are unable to make mature judgments about important matters.”); Commonwealth v. Robinson, 497 Pa. 49, 54, 438 A.2d 964, 966 (1981) (referring to “the legislative desire to protect those who are too unsophisticated to protect themselves”); Yanez, 716 A.2d at 766 (absence of mens rea “is designed to subserve the state interest of protecting female children from the severe physical and psychological consequences of engaging in coitus before attaining the age of consent”); Fulks, 83 S.D. at 436, 160 N.W.2d at 420 (“The arbitrary age of consent in these cases has been established by our legislature as a matter of public policy for the obvious protection of young and immature females.”); Jadowski, 272 Wis.2d at 431, 680 N.W.2d at 817 (“The statute is intended to protect children. The state has a strong interest in the ethical and moral development of its children, and this state has a long tradition of honoring its obligation to protect its children from predators and from themselves.”).


Superior Court of Pima County,
104 Ariz. at 443, 454 P.2d at 985 (“We do not think the predatory nature of man has changed in the last decade.”); Owens, 352 Md. at 681–82, 724 A.2d at 52 (discussing the need to prevent the exploitation of children); Cash, 419 Mich. at 244, 351 N.W.2d at 828 (same); Jadowski, 272 Wis.2d at 431, 680 N.W.2d at 817 (discussing the need to protect children from predators).


Id.
at 682–83, 724 A.2d at 52–53 ; Cash, 419 Mich. at 244, 351 N.W.2d at 828 ; Yanez, 716 A.2d at 766.


Holton,
28 Fla. at 307, 9 So. at 717 (“The object of the law is to deter men, by the severe penalty imposed, from voluntarily seeking intercourse with unmarried females within the prohibited age. Not only that the pure may be shielded from contamination, but that the fallen shall be deprived of the opportunity to further continue their life of sin.”); Owens, 352 Md. at 685, 724 A.2d at 54 (“Deterrence is accomplished by placing the risk of error in judgment as to a potential sex partner's age with the potential offender.”); Collins, 691 So.2d at 923 (“If reasonable mistake were recognized as a defense, the very purpose of the statute would be frustrated and the deterrent effect considerably diminished.”); Holmes, 154 N.H. at 728, 920 A.2d at 636 (“The statutes are designed to impose the risk of criminal penalty on the adult ... [and] [i]n this way, these statutes accomplish deterrence”); Jadowski, 272 Wis.2d at 431, 680 N.W.2d at 817 (“The statutes are designed to impose the risk of criminal penalty on the adult, when the adult engages in sexual behavior with a minor.”).


Owens,
352 Md. at 687, 724 A.2d at 55 (stating that strict liability “avoids the risk that the inevitably emotional statutory rape trial will focus unjustifiably on the child's appearance and level of maturity” and quoting from Cash: “The obvious problem is that because early adolescents tend to grow at a rapid rate, by the time of trial a relatively undeveloped young girl or boy may have transformed into a young woman or man.”); Cash, 419 Mich. at 245, 351 N.W.2d at 828 ; Jadowski, 272 Wis.2d at 431–32, 680 N.W.2d at 817 (stating that a mistake-of-age defense “would raise practical law enforcement problems. Age is difficult to ascertain, and actors could often reasonably claim that they believed their victims were adults”). See also Dep't of H.U.D. v. Rucker, 535 U.S. 125, 134, 122 S.Ct. 1230, 152 L.Ed.2d 258 (2002) (“Strict liability maximizes deterrence and eases enforcement difficulties.”).


But a rule of rigorous strict liability—that flatly denies any defense based upon mistake of age, no matter how reasonable the defendant's mistake was nor what age he reasonably believed the complainant to be—is not narrowly tailored to achieve the goal of protecting children. Such a rule imposes liability on even the diligent defendant, who exercises all the reasonable caution that society would expect of him. A defendant who is diligent about ascertaining that his sexual partner is an adult, and reasonably (but mistakenly) believes that to be so, is not a sexual predator, nor is his relationship with the child one of exploitation.

See Hernandez, 61 Cal.2d at 534, 39 Cal.Rptr. 361, 393 P.2d at 676 (referring to, as lacking criminal intent, the defendant who “has subjectively eliminated the risk [of sex with an underage person] by satisfying himself on reasonable evidence that the crime cannot be committed”).


Stiffler,
117 Idaho at 407, 788 P.2d at 222 (“We concede that the protection of girls from conscienceless men is a purpose that would not be violated by a requirement of specific intent before conviction. As to that purpose it is the conscience or state of mind of the perpetrator that is at issue. Likewise, exploitation focuses on the advantage gained by the perpetrator of the act. This is a state of mind of the perpetrator, not an effect on the female.”).


Moreover, various mechanisms, other than rigorous strict liability, can be used to deter adults from choosing the very young as sexual partners. The law can impose an explicit requirement of diligence. The law can also require that the actor's reasonable, diligence-based, belief be that the child was an adult, not merely a child above the age of consent. An actor can thus be expected to look for social independence or other factors that signify adult status (e.g. attending university, having a of residence of one's own, paying bills). The law can also make the reasonable-mistake-of-age issue an affirmative defense, placing the burden upon the defendant to prove the circumstances that would exculpate him. Placing such a burden on the defendant would preserve the heavy incentive to be cautious because a person would know that, if he were accused: (1) the State would only have to prove the age of the child for the prosecution to go forward, (2) the defendant would have the burden to produce evidence of and prove his reasonable-mistake defense, (3) the trial judge might choose not to submit the defense, on the basis that the defendant has not sufficiently met his burden of production on an element of his defense or the evidence conclusively demonstrates that an element of his defense is not met, and (4) even if the defense is submitted, the finder of fact might choose not to believe the defendant's evidence.

See Elton, 680 P.2d at 729 (holding that the purpose of deterring persons from engaging in intercourse with the young can be accomplished by imposing liability upon proof of criminal negligence).


The Supreme Court has held that the State can impose a burden on the defendant to prove a confession-and-avoidance type defense without violating due process. Dixon v. United States, 548 U.S. 1, 6–8, 126 S.Ct. 2437, 165 L.Ed.2d 299 (2006) (duress); Patterson v. New York, 432 U.S. 197, 205–10, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) (extreme-emotional-disturbance defense in a murder case, which, if proven, would reduce the offense to manslaughter); Id. at 210, 97 S.Ct. 2319 (“We thus decline to adopt as a constitutional imperative, operative countrywide, that a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused.... Proof of the non-existence of all affirmative defenses has never been constitutionally required.”). Even the dissent in Patterson recognized the legitimacy of imposing the burden of proof on the defendant for some types of defensive issues, and it cited, as one example, the adoption in a number of states of a defense to statutory rape “if the defendant shows that he reasonably believed his partner was of age.” Id. at 229–30 & n. 14, 97 S.Ct. 2319 (Powell, J., dissenting).


With respect to the asserted difficulties in proof due to a child's rapid physical development and a defendant's ability to plausibly assert a mistake, such concerns are alleviated in an age of digital cameras and camcorders, in which it has become much easier to create and retain images of one's children. The ease with which images can be created increases the likelihood that a finder of fact will be able to examine images of the child from the relevant time periods. In any event, placing the burden of production and persuasion on the defendant with respect to the mistake-of-age issue would also alleviate this concern because the defendant, not the State, would suffer the risk of loss if the finder of fact is uncertain about the genuineness or reasonableness of any mistake about the child's age.

Some courts have said that recognizing a reasonable-mistake-of-age defense would “considerably diminish[ ]” the deterrent effect of child-sex-offense statutes, but such conclusions appear to be mere speculation. As explained above, twenty states have some form of mistake-of-age defense, and I am unaware of any evidence that those states have a higher incidence of child sex offenses, or a significantly lower incidence of successful prosecutions, than states that provide no such defense. Although the mere speculative possibility of a greater deterrent effect would be sufficient to justify a rigorous strict-liability regime under the rational-basis test, such speculation is not sufficient to establish narrow tailoring under the compelling-state-interest test that applies when a fundamental right is implicated.But if one considered the speculative possibility of an increase in deterrence, one would also want to consider how a rigorous-strict-liability regime could produce additional victims. The obvious example implicated in the present discussion is the essentially innocent defendant who is punished for a crime for which he entirely lacks any mental culpability. But other examples of the potential perverse effects of a rigorous-strict-liability regime can be conceived. An underage individual could lure an unsuspecting adult into a sexual liaison for the purpose of blackmail. The existence of several cases involving blackmail about illicit sex—including one that involved a mistake of age—suggests that the scenario is not entirely far-fetched.

Holmes, 154 N.H. at 728, 920 A.2d at 636 ; Collins, 691 So.2d at 923. See also Yanez, 716 A.2d at 769 (quoting Francis Bowes Sayre, Public Welfare Offenses, 33 Colum. L.Rev.55, 73–74 (1933): “The reason that mistake of fact as to the girl's age constitutes no defense is, not that these crimes like public welfare offenses require no mens rea, but that a contrary result would strip the victims of the protection which the law exists to afford. Public policy requires it. Unless defendants were made to determine at their peril whether or not their victims fall within the class peculiarly needing the protection of the law and thus set apart, there could be no real protection.”).


See
Pietila v. Congdon, 362 N.W.2d 328, 334 (Minn.1985) (referring to “[t]he extraordinary speculation inherent in the subject of deterrence of crime”); Goldberg v. Housing Authority, 38 N.J. 578, 590, 186 A.2d 291, 297 (1962) (referring to “the extraordinary speculation inherent in the subject of deterrence of men bent upon criminal ventures”); State v. Thurman, 846 P.2d 1256, 1264 n. 7 (Utah 1993) (“We acknowledge that a determination of what must be done in the interest of deterrence must involve a fair degree of speculation until much more is known about the way deterrence works in fact than now seems knowable.”) (internal quotation marks omitted).


See also
Loewy at 100 (“There is no evidence that those states that allow reasonable mistake of age as a defense have fewer statutory rape prosecutions or a significantly higher acquittal rate.”). Furthermore, the amicus brief contends, “Most sexual assaults of children are committed by someone the child knows, such as a parent, parent figure, or a familiar and authoritative adult.” Amicus at 7 (citing Thomas D. Lyon and Julia A. Dente, Child Witnesses and the Confrontation Clause, 102 J.Crim. L. & Criminology1181, 1203–05 (Fall 2012) ). If that is true, then a mistake-of-age defense would not be available to most persons who are charged with sexual assaults of children because those persons would or should know the child's age.


Heller v. Doe,
509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) (Under the rational basis test, “[a] State ... has no obligation to produce evidence to sustain the rationality of a statutory classification. A legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.”); Federal Communications Commission v. Beach Communications, 508 U.S. 307, 314–15, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993).


Consol. Edison Co. v. Public Serv. Comm'n,
447 U.S. 530, 543, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980) (“Mere speculation of harm does not constitute a compelling state interest.”); Sherbert v. Verner, 374 U.S. 398, 406–07, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) (“We must next consider whether some compelling state interest enforced in the eligibility provisions of the South Carolina statute justifies the substantial infringement of appellant's First Amendment right.... The appellees suggest no more than a possibility that the filing of fraudulent claims by unscrupulous claimants feigning religious objections to Saturday work might not only dilute the unemployment compensation fund but also hinder the scheduling by employers of necessary Saturday work.... [E]ven if the possibility of spurious claims did threaten to dilute the fund and disrupt the scheduling of work, it would plainly be incumbent upon the appellees to demonstrate that no alternative forms of regulation would combat such abuses without infringing First Amendment rights.”).


Judge Alcala's concurrence speculates that permitting a mistake-of-age defense would negatively impact the reporting and prosecution of child sex offenses, but I am aware of no evidence that jurisdictions that have recognized a mistake-of-age defense have had a decline in the reporting and prosecution of child sex offenses. The concurrence also contends that defense attorneys will be able to ask invasive questions of the child “in virtually any case in which a defendant could plausibly claim that he was unaware of the complainant's age.” But if, as seems likely, the adult that has sexual relations with a young child is usually a family member, close family friend, familiar authority figure, or a kidnapper, then it will not be often that the defendant in a young-child case can plausibly claim reasonable, actual ignorance of the child's age. Further, the defendant has to raise the issue first, probably by his own testimony. So the victim would not be subject to such cross-examination during the State's case-in-chief, and any such questions would normally not be permissible unless and until they have been shown to be relevant to the defendant's allegations. And the defendant's evidence of mistake of age would have to indicate a mistake about whether the child was an adult, and not merely about whether the defendant perceived the child to be older than he or she actually was.


Elton,
680 P.2d at 732 (referring to possibility that a youth will “seek[ ] to abuse the criminal law for his or her own sensual indulgences or for even more insidious purposes, such as blackmail”).


See
Blackwell v. State, 2013 WL 5604742, *1–2, 2013 Tex.App. LEXIS 12606, *1–4 (Tex.App.-Houston [1st Dist.] October 10, 2013, pet. ref'd) (not designated for publication) (19–year–old male had sex with a 15–year–old female he met at a university party; he assumed that the girl was an adult because she had represented herself to be a university student; he was later informed that girl had an abortion and girl's stepfather threatened to involve the police and demanded $3000 to pay for the cost of the procedure); Roberts v. State, 278 S.W.3d 778 (Tex.App.-San Antonio 2008, pet. ref'd) (husband blackmailing four men with whom his wife had affairs); Beasley v. State, 2005 WL 3005593, *1 & n. 2, 2005 Tex.App. LEXIS 9334, *2 & n. 2 (Tex.App.-Houston [1st Dist.] November 10, 2005, pet. ref'd) (not designated for publication) (tape recording of grandfather who threatened that his granddaughter would press charges of statutory rape if defendant, a jockey, chose to participate in that night's horse race); Commonwealth v. Kean, 382 Pa.Super. 587, 591, 556 A.2d 374, 376 (1989), appeal denied, 525 Pa. 596, 575 A.2d 563 (1990) ( “Eventually, relations between the juveniles and the appellants took a turn for the worse. Alan and Steve borrowed the Keans' car without their permission and then became concerned that the Keans might notify the police. Alan and Steve were also afraid that Lucile Kean might falsely claim that the boys had forced her to participate in their sexual activities. Sometime during the summer of 1986, the boys decided to videotape one of their sexual encounters with the Keans. In this way, they hoped to gather evidence that Mrs. Kean's participation was consensual. They also reasoned that they could use the tape to blackmail the Keans into not reporting the unauthorized use of their vehicle.”).


In an article, entitled “The Paradox of Statutory Rape,” another troubling scenario has been suggested: that an adult rape victim of an underage attacker could be liable for rape under statutory-rape laws. The authors argue that conduct by an adult rape victim of an underage attacker will often satisfy the literal elements of statutory rape and that the available defenses in many jurisdictions are insufficient to immunize the adult victim from criminal liability. As one illustration, the authors discuss the facts of Henyard

See Russell L. Christopher and Kathryn H. Christopher, The Paradox of Statutory Rape, 87 Ind. L.J. 505, 506 & passim (Spring 2012).


Id., passim.


v. State,
in which an adult woman was raped at gunpoint by two males, Henyard and a fourteen-year-old. Although the woman was the victim in that case, the authors contended that the woman's submission to the underage attacker literally satisfied the elements of the crime of statutory rape.

689 So.2d 239 (Fla.1997).


Christopher at 506–07; Henyard, 689 So.2d at 242–43.


Christopher at 507.


In another illustration, the authors point to Garnett v. State, a Maryland case in which the defendant was mentally retarded. In that case, Raymond Garnett, a twenty-year-old mentally retarded man with an I.Q. of fifty-two, who interacted socially at the level of age eleven or twelve, had sex with a thirteen-year-old girl of normal intelligence. There was evidence that the girl invited him up to her room through an open window and told him that she was sixteen. The authors of “The Paradox of Statutory Rape” point out that, under traditional rape law, Garnett could have been considered the victim because of his mental disability, and the thirteen-year-old could have been seen as the rapist. The role reversal that results from “the paradox of statutory rape” may be more apparent if we consider a hypothetical fact situation in which an underage boy rapes a mentally retarded adult woman. Under a strict-liability regime, she would be the rapist and he the victim.

Id. at 510.


Id.
at 577, 632 A.2d at 800.


Christopher at 511 & n. 53 (also quoting Professor Catherine Carpenter as observing that “students who read Garnett in my first year Criminal Law class often view Raymond as the victim.” Catherine L. Carpenter, The Constitutionality of Strict Liability in Sex Offender Registration Laws, 86 B.U. L.Rev. 295, 318 n. 106 (2006) ).


Imposing criminal liability on the rape victim simply because the attacker was underage would turn criminal law on its head. The possible existence of such a scenario under a rigorous strict-liability regime poses serious due-process concerns. It may be that various defenses available in Texas—duress, necessity, and insanity —would provide protection from criminal liability to any adult who is raped by an underage attacker. But the fact that we may need such defenses to perform that function points to the flaws of a rigorous strict-liability regime that ignores completely an actor's lack of actual blameworthiness.

The potential for this scenario exists because, while the absence of consent by the complainant is an element of ordinary rape, the absence of consent by the defendant is not a defense, per se, to statutory rape.


See
Tex. Penal Code§§ 8.01, 8.05, 9.22.


The Garnett case is a real-world example that involves the mistake-of-age issue. The argument in that case was that the defendant was entitled to assert a defense of mistake of age because he thought the child was sixteen. He was not entitled to such a defense under Maryland law. Nor would Lawrence help him, under the principles that I propose today, because he believed the child to be under the age of eighteen. But the facts in Garnett's case suggest a related, though different, question of whether harsh punishment may be imposed upon a person who lacks mental culpability due to a mental disability. Although Maryland's high court upheld Raymond Garnett's conviction, it acknowledged that “it is uncertain to what extent Raymond's intellectual and social retardation may have impaired his ability to comprehend imperatives of sexual morality in any case.” Nevertheless, the court felt that its hands were tied, concluding, “extraordinary cases, like Raymond, will rely upon the tempering discretion of the trial court at sentencing.” How to handle child sex cases in which the defendant is a mentally retarded individual is not before us today, but such a scenario presents potentially serious due-process concerns that reinforce my conclusion that due process has a role to play in ensuring that the defendant possesses at least a minimal level of mental culpability for such a serious crime.


Id.
at 588, 632 A.2d at 805.


Id.
at 582, 632 A.2d at 802.


Id.


Based upon the above discussion, I conclude that a scheme of rigorous strict liability for child sex offenses is not narrowly tailored to serve the State's compelling interest in protecting children. Consequently, I would hold that, absent the availability of a mistake-of-age defense, child-sex-offense laws in Texas are unconstitutional as applied to an individual who demonstrates to the finder of fact by a preponderance of the evidence that he reasonably believed, after exercising appropriate diligence, that his sexual partner was at least eighteen years old, so long as the individual's conduct would otherwise constitute protected activity under Lawrence.

I will discuss that type of diligence in further detail below.


Judge Alcala's concurring opinion contends that this Court must “abide by Supreme Court precedent and Texas law as written, rather than legislate from the bench.” But the conclusion that I reach today flows logically and inexorably from the Supreme Court's holdings in Lambert and Lawrence and from the centuries-old notion, articulated in a number of Supreme Court cases, that heavy criminal punishment should not be imposed on someone who lacks even the most minimal sort of mental culpability for the crime.


IV. REMEDY

The procedural component of the Due Process Clause requires that a defendant be afforded the opportunity to demonstrate that the statute is indeed unconstitutional as to him. For that to occur, the defendant must be given the opportunity to offer evidence on the matter and, if the evidence raises the issue, to have a reasonable-mistake-of-age defense submitted to the finder of fact. The Penal Code does not contain a mistake-of-age defense, but courts are empowered to craft one to satisfy the demands of the Constitution. I therefore address the content of that defense and the circumstances under which such a defense should be submitted. The following are the elements of a constitutionally required mistake-of-age defense:

See Holmes v. South Carolina, 547 U.S. 319, 324, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006) (right, rooted in part in due process, to present a defense); Crane v. Kentucky., 476 U.S. 683, 687–91, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) (“We break no new ground in observing that an essential component of procedural fairness is an opportunity to be heard.”).


See
State v. McPherson, 851 S.W.2d 846, 850 (Tex.Crim.App.1992) (A trial court has the authority to submit a non-statutory mitigation issue when the statute does not provide for one, to satisfy the demands of the Constitution.).


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.

With respect to element (3), a defendant's exercise of diligence would not necessarily need to be based upon affirmative conduct on his part. The complainant might voluntarily supply the information needed, or the circumstances under which the defendant encounters the complainant might strongly suggest that the complainant is an adult. But a reasonable belief that the complainant is an adult would not ordinarily be enough to warrant a mistake-of-age instruction if it is based upon mere fleeting or casual contact. A defendant would fail to meet element (4) if he hired the complainant as a prostitute or if his conduct would constitute a crime even if the complainant were an adult (e.g., forcible rape or indecent exposure).

See Loewy at 80–81 (hypothetical involving an underage person who is a college sophomore).


This is not necessarily an exclusive list of situations that fail to meet element (4).


As with all defenses, a defendant would be entitled to submission of this mistake-of-age defense only “if there is some evidence, from any source, on each element of the defense that, if believed by the jury, would support a rational inference that that element is true.” This is also known as making a prima facie case with respect to each element of the defense. I would apply the usual analysis with the following caveats: With respect to element (2), a defendant's prima facie case would fail if the evidence of the complainant's appearance indisputably shows that the defendant could not have reasonably mistaken the complainant for an adult. With respect to element (4), a defendant would make a prima facie showing by introducing evidence that the complainant actually consented. However, the State could negate such a showing on element (4) by providing undisputed evidence that the defendant's conduct, even if consensual, would not be constitutionally protected (for some other reason).

Shaw v. State, 243 S.W.3d 647, 657–58 (Tex.Crim.App.2007).


Id.
at 657.


Elton,
680 P.2d at 732 (“Clearly the physical appearance of the victim may be persuasive against a defendant. The physical appearance of a very young girl would, at least in some cases, negate any affirmative misrepresentation she might make.”).


I reiterate that this mistake-of-age defense would be an affirmative defense, which means that the defendant would shoulder both the burden of producing evidence and the burden of persuading the finder of fact. The defendant's burden of persuasion would be by a preponderance of the evidence. The constitutionally required mistake-of-age defense should not be confused with the statutory mistake-of-fact defense. The latter is a “defense,” rather than an affirmative defense, and there is some difference in the elements of the two defenses.

See Tex. Penal Code§ 2.04.


Id.,
§ 2.04(d).


See id.
§§ 2.03, 8.02.


See
Celis, 416 S.W.3d at 430–31 (holding that statutory mistake-of-fact defense is available only to negate a culpable mental state prescribed for the offense).


V. DISPOSITION

In the present case, the court of appeals addressed the merits of appellant's constitutional complaints by holding, as a general matter, that the aggravated-sexual-assault statute's “lack of a mistake-in-fact defense does not offend notions of Due Process.” The court of appeals did not address a host of issues that may come into play after a holding that due process requires the submission of a mistake-of-age defense in an appropriate case. It did not consider the issue of procedural default, address whether the evidence raised the defense, or conduct a harm analysis. Nor did the court consider whether evidence was excluded that would have been relevant to the defense, and it did not consider any attendant preservation and harm analyses associated with any such exclusion. It did not need to, because its holding, if it had been correct, would have properly disposed of the case. I would hold that it is appropriate for the court of appeals to address these issues in the first instance on remand.

See Fleming v. State, 376 S.W.3d 854, 858–62 (Tex.App.-Fort Worth 2012, pet. granted).


See id.


See id.


State v. Plambeck,
182 S.W.3d 365, 367 n. 10 (Tex.Crim.App.2005).


See
Benavidez v. State, 323 S.W.3d 179, 183 n. 19 (Tex.Crim.App.2010). The Court's opinion considers the facts of the present case, saying, “It would be unconscionable for us to allow a 25 year-old-man who was having sex with a 13–year–old child” to claim he was reasonably mistaken about whether he was having sex with an adult. And Judge Alcala's concurring opinion addresses whether, if a mistake-of-age defense were available, appellant in fact acted reasonably. But the court of appeals did not decide whether appellant actually acted reasonably. That court decided only that a mistake-of-age defense was never available under the statute. Appellant's petition for discretionary review challenges only that decision and his brief focuses only on the availability of a mistake-of-age defense as a general matter. This Court has never placed appellant on notice that the specific facts of his case would be an issue on discretionary review. We should not reach out to decide such an issue without at least affording him the opportunity to weigh in on the matter. See Pena v. State, 191 S.W.3d 133 (Tex.Crim.App.2006). If we were to recognize a mistake-of-age defense, the court of appeals should address its applicability to appellant in the first instance. See Hudson v. State, 394 S.W.3d 522, 525 n. 16 (Tex.Crim.App.2013).
--------

With these comments, I respectfully dissent.