1.
Definition: Sexual intercourse with an underage person
(in most states, under 16)
2.
Variations on actus reus
a.
Traditional rule: age of perpetrator irrelevant
b.
Some jurisdictions predicate guilt on perpetrator being a
certain number of years older than victim
c.
Some jurisdictions (incl. Calif.) enhance penalty when
perpetrator is certain number of years older than victim
3.
Variations on mens rea
a.
Most jurisdictions require no mental culpability as to age
(and therefore do not permit mistake of fact defense as to
age)
b.
California requires at least negligence with respect to age
4.
Most statutes now gender neutral, creating ambiguity with
respect to same-sex intercourse
5.
Illustration of California approach: People v.
Hernandez
a.
Legal theory of statutory rape: incapacity to consent
b.
In MPC terms, Hernandez requires negligence as to age
c.
Relationship between mental culpability and age of consent
6.
Illustration of majority approach: Garnett v. State
a.
Note that age of consent is 16, or 14 (with defendant at
least 4 years older than victim)
7.
Modern California statute (Penal Code Sec. 261.5)
a.
Victim under 18 and defendant within 3 years of victim =
misdemeanor
b.
Victim under 18 and defendant more than 3 years older than
victim = wobbler (up to 18 months)
c.
Victim under 16, defendant over 21 = wobbler (up to 4 years)
8.
Policy analysis of statutory rape
a.
Historical rationale: protection of father's economic
interests
b.
Possible modern rationale: to protect young people
from sexual predators
c.
Possible modern rationale: to protect young people
from their own impetuosity
d.
Possible modern rationale: to provide backup
punishment in cases involving acquaintances
e.
Possible modern rationale: to reduce teenage pregnancy
and STDs
9.
Other child sex crimes in California
a.
Most child sex crimes set age at 18, and reasonable mistake
as to age is a defense
b.
Exception: lewd and lascivious act with child under 14
(Penal Code Sec. 288) -- no mental culpability as to age
required
