People v. Cash

• Decision Date: 19 July 1984
• Docket Number: J,Docket No. 68064,No. 18,18
• Citation: 419 Mich. 230,351 N.W.2d 822
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George E. CASH, Jr., Defendant-Appellant. une Term 1983. Calendar
• Court: Michigan Supreme Court

Page 822

351 N.W.2d 822

419 Mich. 230

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George E. CASH, Jr., Defendant-Appellant.

Docket No. 68064, June Term 1983.

Calendar No. 18.

Supreme Court of Michigan.

Argued June 7, 1983.

Decided July 19, 1984.

Calhoun County Prosecutor's Office, Richard A. Pattison, Asst. Prosecuting Atty., Battle Creek, for plaintiff-appellee.

State Appellate Defender Office, by Herb Jordan, Asst. State Appellate Defender, Detroit, Ronald E. Steinberg, Research Asst., for defendant-appellant.

WILLIAMS, Chief Justice.

The main issue presented in this case requires us to reconsider whether a reasonable mistake of fact as to a complainant's age is a defense to a statutory rape charge. Over 61 years ago, this Court enunciated a rule rejecting such a defense in People v. Gengels, 218 Mich. 632, 188 N.W. 398 (1922), which involved a similar charge under the former statutory rape statute. We reaffirm the Gengels rule and likewise reject this defense in cases brought under Sec. 520d(1)(a) of the third-degree criminal sexual conduct statute. ¹

This appeal raises two additional issues: (1) whether the trial court abused its discretion in not permitting cross-examination of the complainant or her mother regarding the complainant's lifestyle; and (2) whether the prosecution's argument and introduction of evidence concerning a forcible rape denied defendant a fair trial. We answer each of these issues in the negative, and therefore we affirm defendant's conviction.

I. FACTS

On the evening of September 23, 1979, the complainant, who was one month shy of her 16th birthday, met the defendant at a Greyhound bus station in Detroit. The complainant was running away from home at the time. After talking with complainant for a couple of hours and gaining her trust, defendant persuaded complainant to accompany him on a drive in his car. They drove to a motel in Marshall, Michigan, where two separate acts of sexual intercourse took place. The complainant managed to leave the motel room undetected after defendant fell asleep, and awakened the person in charge of the motel, who in turn called the police. The defendant was charged with two counts of third-degree criminal sexual conduct, namely, engaging in sexual penetration with a person between the ages of 13 and 16 years. Documents found in the court file indicate that at the time of the offense, the defendant was 30 years old.

At the preliminary examination, complainant admitted that she told defendant that she was 17 years old. The defendant had also indicated to the police at the time of his arrest that the complainant told him she was 17. The complainant was described by defendant as being 5' 8" tall and weighing about 165 pounds.

Prior to trial, defendant brought a motion requesting that the jury be instructed that a reasonable mistake as to the complainant's age is a defense, or, in the alternative, that the charges be dismissed on the ground that the complainant is collaterally estopped from asserting that she was 16 since at the time of the offense she stated that she was 17. Following a hearing, the trial court denied defendant's motion and entered its opinion and order to that effect.

During the course of jury voir dire, defendant asserted his right to represent himself. The trial court permitted defendant to proceed in his own defense with his attorney remaining present to assist defendant. At trial, the complainant testified that she had voluntarily, though reluctantly, engaged in sexual intercourse with defendant out of fear that defendant would otherwise harm her. Defendant tried to impeach the complainant with questions about her lifestyle to show that she was "street-wise", but the trial court prohibited this cross-examination. Defendant was also prohibited from questioning complainant's mother as to her daughter's lifestyle.

Sergeant Max Faurot of the Calhoun County Sheriff's Department was called to testify for the prosecution. The relevant portions of that testimony follow:

"Q. Do you recall whether or not you were dispatched to Marshall Heights Motel at some point on the morning of September 24th?

"A. Yes, I was.

"Q. Do you know with regards to what?

"A. Yes, my dispatcher advised that she had a call from the motel that there had been a rape. That there had been a rape at that location, that the suspect was around and in one of the motel rooms, and that the victim was in the office with the manager of the motel."

The trial court instructed the jury that the defense theory was one of mistake of fact and that defendant reasonably believed that complainant had reached the age of consent. Over defendant's objection, the court later instructed the jury that "[i]t is no defense that the defendant believed that [the complainant] was 16 years old or older at the time of the alleged act".

The defendant was found guilty by the jury of third-degree criminal sexual conduct, M.C.L. Sec. 750.520d(1)(a); M.S.A. Sec. 28.788(4)(1)(a), and was sentenced to a term of from 5 to 15 years in prison. The Court of Appeals affirmed defendant's conviction in an unpublished per curiam opinion. We granted leave to appeal on August 10, 1982. 414 Mich. 868, 323 N.W.2d 910.

II. REASONABLE-MISTAKE-OF-AGE DEFENSE

A. The Gengels Decision

This Court first stated that a good-faith or reasonable mistake as to the complainant's age is not a defense to a statutory rape charge in People v. Gengels, 218 Mich. 632, 188 N.W. 398 (1922), nearly 61 years ago. In that case, the defendant was convicted under the predecessor to the current criminal sexual conduct statute of carnally knowing a female child under 16 years of age. The defendant testified that the complainant told him that she was 18 years old. This Court reversed the defendant's conviction and granted a new trial on the ground that the prosecutor had impermissibly impeached the defendant by collateral evidence of similar acts. While recognizing that such evidence may be admissible where guilt of a particular crime depends on intent, the Court noted:

"But in the crime charged here proof of the intent goes with proof of the act of sexual intercourse with a girl under the age of consent. It is not necessary for the prosecution to prove want of consent. Proof of consent is no defense, for a female child under the statutory age is legally incapable of consenting. Neither is it any defense that the accused believed from the statement of his victim or others that she had reached the age of consent. 33 Cyc, p 1438, and cases cited." Gengels, supra, p. 641, 188 N.W. 398.

The Gengels decision has only been cited once in this state's courts for the proposition that mistake of age is not a defense to a statutory rape charge. People v. Doyle 16 Mich.App. 242, 167 N.W.2d 907 (1969), lv. den. 382 Mich. 753 (1969). ² In Doyle, the defendant was charged with taking indecent liberties with a female under 16 years of age. ³ The Court of Appeals observed that "[c]urrent social and moral values make more realistic the California view that a reasonable and honest mistake of age is a valid defense to a charge of statutory rape, People v. Hernandez, 61 Cal.2d 529, 39 Cal.Rptr. 361, 393 P.2d 673 (1964)". Id., p. 243, 167 N.W.2d 907. The Court, however, concluded that it was bound to follow the Gengels rule and therefore refused to adopt the mistake-of-age defense in indecent liberties cases. Neither in Gengels nor in Doyle was the constitutionality of the rule prohibiting the defense of a reasonable mistake of age to a statutory rape charge squarely presented.

B. Is Gengels Still Viable?

This Court for the first time has the opportunity to review the rule announced in Gengels and determine whether it is still viable under the successor provision of the third-degree criminal sexual conduct statute and, if so, whether it comports with a defendant's right to due process.

The statute reads, in relevant part:

"(1) A person is guilty of criminal sexual conduct in the third degree if the person engages in sexual penetration with another person and if any of the following circumstances exists:

"(a) That other person is at least 13 years of age and under 16 years of age." M.C.L. Sec. 750.520d; M.S.A. Sec. 28.788(4).

"Sexual penetration" is defined as:

"[S]exual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body, but emission of semen is not required." M.C.L. Sec. 750.520a(h); M.S.A. Sec. 28.788(1)(h).

In the present case, defendant directly attacks the constitutionality of the above statute on due process grounds for imposing criminal liability without requiring proof of specific criminal intent, i.e., that the accused know that the victim is below the statutory age of consent. In particular, he argues that the crime of statutory rape is rooted in the common law and, as with other common-law offenses, the element of intent must be implied within the statutory definition of a crime, absent clear legislative language to the contrary. ⁴ We are urged by defendant to construe the statute's silence with respect to the element of intent as not negating the defense of a reasonable mistake of fact as to the complainant's age.

In support of his argument, defendant relies primarily on two out-of-state cases which represent the minority view that, in a statutory rape prosecution, an accused's reasonable, though mistaken, belief that the complainant was of the age of consent is a valid defense. ⁵ People v. Hernandez 61 Cal.2d 529, 39 Cal.Rptr. 361, 393 P.2d 673 (1964); State v. Guest, 583 P.2d 836 (Alas., 1978). In both these cases, the Court engrafted a mens rea element onto the statutes in question where they were otherwise silent as to any requisite criminal intent.

The vast majority of states, as well as the federal courts, which have considered this identical issue...