American University Law Review Volume 53 | Issue 2 Article 1 2003 On Statutory Rape, Strict Liability, and the Public Welfare Offense Model Catherine L. Carpenter [email protected] Follow this and additional works at: http://digitalcommons.wcl.american.edu/aulr Part of the Criminal Law Commons, Juveniles Commons, and the Social Welfare Law Commons Recommended Citation Carpenter, Catherine L. “On Statutory Rape, Strict Liability, and the Public Welfare Offense Model.” American University Law Review 53, no.2 (December 2003): 313-391. This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University Law Review by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. On Statutory Rape, Strict Liability, and the Public Welfare Offense Model Abstract Statutory Rape. At the center of a long-standing debate on whether its commission should require proof of a criminal mens rea, the prosecution of statutory rape offers a revealing look at the struggle to demarcate the parameters of the public welfare offense doctrine. Specifically, with respect to statutory rape, disagreement is deep and entrenched on whether statutory rape should be categorized as a public welfare offense, which would render irrelevant defendant's lack of knowledge of the victim's age. And despite wholesale revamping of state statutory rape laws on issues of age, gender, and potential grading and punishment, the debate on whether to require a criminal mens rea or embrace strict liability continues. So, how has it come to pass that this particular crime has engendered such serious division of thought regarding the requirement of a mens rea? This Article argues that, fueled in part by a misplaced reliance on dicta from the landmark decision of Morissette v. United States, most states have concluded that statutory rape is a strict liability offense. But as this Article shows, the landscape has changed dramatically since Morissette was written in 1952. Like the child's puzzle book that asks the question, "Which item doesn't belong?" this Article argues that the public welfare offense model's application to statutory rape is, by current standards, strained and outmoded. Statutory rape as a strict liability crime only works because blameworthiness - a cornerstone of punishment - has been replaced by a different sensibility: the strict assumption of the risk that the actor bears when engaging in sexual activity. This paradigmatic shift from blameworthiness to assumption of the risk remains a vital rationale in statutory rape only if the actor can be expected to appreciate that engaging in a broad range of sexual activities may be proscribed by statute. As this Article demonstrates, because of Lawrence v. Texas and its progeny, it may no longer be accurate to say that engaging in sexual activity is the criminally risky business envisioned by the Morissette Court in 1952 when statutory rape was just one of many statutes criminalizing sexual activity. And without notice that engaging in adult sexual behavior may be subject to widespread regulation, this Article concludes that it is time for the United States Supreme Court to redefine the parameters of the public welfare offense doctrine as it applies to statutory rape and allow defendants to mount a reasonable mistake-of-age defense. Keywords Statutory rape, rape, public welfare offense, strict liability, Lawrence v. Texas, criminal law, Garnett, Staples, Morissette This article is available in American University Law Review: http://digitalcommons.wcl.american.edu/aulr/vol53/iss2/1 CARPENTER.AUTHORCHANGES2A.DOC 3/2/2004 11:07 AM ARTICLES ON STATUTORY RAPE, STRICT LIABILITY, AND THE PUBLIC WELFARE OFFENSE MODEL CATHERINE L. CARPENTER∗ Introduction.........................................................................................314 I. A Primer on the Public Welfare Offense Doctrine..................322 A. The Tenets of the Public Welfare Offense Doctrine ........322 1. An overview ...................................................................322 2. From Morissette through Staples.................................. 327 B. Statutory Rape as a Public Welfare Offense: Engaging in Sex is Risky Business.......................................................332 II. A Comparative Look at Statutory Rape Laws...........................334 A. Generally.............................................................................334 B. The True Crime Model......................................................344 C. The Public Welfare Offense Model ...................................350 D. The Hybrid Approach ........................................................354 III. Challenging Statutory Rape as a Public Welfare Offense........357 A. General Principles of Legislative Prerogative to Create a Public Welfare Offense....................................................357 B. Examining the Public Welfare Indicia ..............................361 1. Is engaging in sex still risky business?..........................361 a. The impact of Lawrence on strict liability................364 b. Employing the Staples rationale ..............................367 c. Knowledge of risk under the hybrid model...........371 ∗ Professor of Law, Southwestern University School of Law. I would like to thank Dean Leigh H. Taylor and Southwestern University for the generous support, and to my assistants: Katie Glick, Tim McHale, Noosha Raouf, Fernando Saldivar and Irina Sardaryan for their significant research effort. I am also grateful to Professor Joshua Dressler for his encouragement, Professor Dennis Yokoyama for his red pen, Justin Sarno for the prompt, and David Carpenter, who served as my sounding board. 313 CARPENTER.AUTHORCHANGES2A.DOC 3/2/2004 11:07 AM 314 AMERICAN UNIVERSITY LAW REVIEW [Vol. 53:313 2. Is it inconsequential pain and stigma?.........................373 a. Harshness of punishment .......................................374 b. Effect of sexual offender registration laws .............376 3. Is strict liability necessary to protect community interests?........................................................................380 Conclusion ...........................................................................................383 Appendix: Jurisdictional Analyses of Statutory Rape Laws.............. 385 The contention that an injury can amount to a crime only when inflicted by intention 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. -Morissette v. United States1 INTRODUCTION Statutory Rape.2 At the center of a long-standing debate on whether its commission should require proof of a criminal mens rea to engage in sexual conduct with an underage person,3 the 1. 342 U.S. 246, 250 (1952). Other courts have often cited this statement by Justice Jackson. See, e.g., United States v. Staples, 511 U.S. 600, 605 (1994); United States v. Liparota, 471 U.S. 419, 425-26 (1985); State v. Kimoktoak, 584 P.2d 25, 29 (Alaska 1978); General v. State, 789 A.2d 102, 107 n.5 (Md. 2002); Finger v. State, 27 P.3d 66, 79 (Nev. 2001); Commonwealth v. Samuels, 778 A.2d 638, 643 n.4 (Pa. 2001); State v. Abdallah, 64 S.W.3d 175, 179 (Tex. Crim. App. 2001); State v. Anderson, 5 P.3d 1247, 1252-53 (Wash. 2000). 2. Called a variety of names, statutory rape generally involves sexual intercourse with a person under a specified age, where the victim’s age precludes the ability to consent to the activity. See, e.g., TENN. CODE ANN. § 39-13-506 (2002) (stating that “[s]tatutory rape is sexual penetration of a victim by the defendant or of the defendant by the victim when the victim is at least thirteen (13) but less than eighteen (18) years of age and the defendant is at least four (4) years older than the victim”). Interestingly, few states actually call the crime “statutory rape.” For other criminal designations, see, e.g., ALASKA STAT. § 11.41.434 (Michie 2002) (“sexual abuse of a minor”); ARIZ. REV. STAT. ANN. § 13-1405 (West 2001) (“sexual conduct with a minor”); IND. CODE ANN. § 35-42-4-3 (Michie 2003) (“child molesting”); LA. REV. STAT. ANN. § 80 (West 2003) (“felony carnal knowledge of a juvenile”); ME. REV. STAT. ANN. tit. 17-A, § 253 (West 2002) (“gross sexual assault”); NEV. REV. STAT. § 200.368 (2003) (“statutory sexual seduction”); TEX. PENAL CODE ANN. §§ 22.011, 22.021 (Vernon 2003) (“sexual assault” and “aggravated sexual assault”); see also STEPHEN J. SCHULHOFER, UNWANTED SEX: THE CULTURE OF INTIMIDATION AND THE FAILURE OF LAW 102 (1998) (asserting that the term “statutory rape” signals “that consensual sex with a teenager is not really rape. It is only deemed equivalent to rape by operation of statute.”). 3. The disagreement within courts is quite pronounced and the rhetoric quite impassioned for those favoring a mens rea requirement. See, e.g., State v. Yanez, 716 A.2d 759, 786 (R.I. 1998) (Flanders, J., dissenting) (criticizing the majority’s imposition of strict liability and rejection of the mistake-of-age defense to the charge of first-degree child-molestation sexual assault). From Flanders perspective, “the majority’s conversion of § 11-37-8.1 into a strict-liability crime in mistake-of-age