Statutory Rape

Traditional Elements:
  • 1. Carnal K
  • 2. Female child
  • 3. Under age of consent (10 at CL)
  • Reasonable Mistake of Fact as to age no defense at CL and many/most jurisdictions.
  • The law in CA is that if you are under 18 and of either gender and have consensual sex with someone else who is also under 18 you have committed a crime.
    • This is the current law.
    • There is a lowering of the punishment if they are within four years of each other; it's not as serious a crime.
      • In CA--if both under 18 but within 3 years, it’s a misdemeanor.
  • Age varies among states
  • Some states still only find man guilty.

People v. Hernandez
  • Female was 17 years and 9 months and sex was consensual.
  • At this time the statute was gender specific.
  • Argument for ∆ on appeal was that he didn't know she was under 18.
  • Prior to this decision even if you showed fake id to say you were 19 and looked 19 and the person really thought you were that was not a defense.
    • Even a reasonable mistake was not a defense.
  • CA says that it was an error. CA says its changing statutory rape.
  • In the majority of cases statutory rape is essentially a strict liability crime.
  • The theory today is that the consent is not valid if you are under the age of 18.
  • There is no such thing as valid consent (this isn't anywhere near why the law was enacted).
Garnett v. State
  • Mistake due to age not allowed (strict liability)
    • Statute clear, no mens rea required.
  • Originally a crime due to property right of father over daughter.
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