State v. Elton
| Decision Date | 28 March 1984 |
| Docket Number | No. 18151,18151 |
| Citation | 680 P.2d 727 |
| Parties | STATE of Utah, Plaintiff and Respondent, v. Don A. ELTON, Defendant and Appellant. |
| Court | Utah Supreme Court |
Kent O. Willis, Provo, for defendant and appellant.
David L. Wilkinson, Atty. Gen., Salt Lake City, for plaintiff and respondent.
We have previously issued a per curiam opinion in this case, now published at 657 P.2d 1261. That opinion concluded that reasonable mistake of age could not be raised as a defense in a prosecution for unlawful sexual intercourse as defined in U.C.A., 1953, § 76-5-401. We later withdrew that opinion for the purpose of rehearing the case and addressing more fully an issue of first impression. Upon reconsideration, we vacate our previous opinion and set aside the trial court's judgment of conviction and remand.
Defendant was convicted of the crime of unlawful sexual intercourse, a third degree felony, under U.C.A., 1953, § 76-5-401, which provided: 1
(1) A person commits unlawful sexual intercourse if that person has sexual intercourse with a person, not that person's spouse, who is under sixteen years of age.
(2) Unlawful sexual intercourse is a felony of the third degree except when at the time of intercourse the actor is no more than three years older than the victim, in which case it is a class B misdemeanor. Evidence that the actor was not more than three years older than the victim at the time of the intercourse shall be raised by the defendant.
On September 16, 1981, defendant engaged in sexual intercourse with a girl, not his wife, who was fourteen years of age. Defendant was nineteen years of age at the time and therefore more than three years older than the girl. Defendant testified that the girl told him she was eighteen years of age and that he believed her representation. The girl testified that she participated in the act voluntarily, but that she told the defendant that she was fifteen years old. Although the trial court allowed testimony showing that the defendant knew the girl's age, the trial court excluded any further testimony by the defendant concerning the reasonableness of his belief as to the girl's age and instructed the jury that mistake as to the girl's age was no defense to the charge.
On this appeal, defendant argues that the trial court erred in (1) excluding the proffered evidence substantiating the basis of the defendant's alleged belief that the girl was over the age of sixteen years and (2) rejecting the defendant's requested jury instruction that a reasonable mistake as to the girl's age constituted a defense to the crime as charged. We note that even if the requested instruction had been given and the jury had found in accordance therewith, the defendant still would have been guilty of fornication under Utah law. U.C.A., 1953, § 76-7-104.
The Utah Criminal Code follows the common law in establishing the basic proposition that a person cannot be found guilty of a criminal offense unless he harbors a requisite criminal state of mind or unless the prohibited act is based on strict liability. At the time in question, § 76-2-101 stated:
No person is guilty of an offense unless his conduct is prohibited by law and:
(1) He acts intentionally, knowingly, recklessly or with criminal negligence with respect to each element of the offense as the definition of the offense requires; or
(2) His acts constitute an offense involving strict liability. 2
Thus, for an act to constitute a crime, the act must be prohibited and the defendant must be shown to have possessed a culpable or criminal state of mind, a mens rea, "with respect to each element of the offense," unless the offense involves a strict liability offense. An established first principle of the criminal law, with few exceptions, is that the doing of a wrongful act without the requisite culpable mental state does not constitute a crime. State v. Blue, 17 Utah 175, 181, 53 P. 978, 980 (1898). Nor does the harboring of a criminal mental state, not translated into a prohibited act, constitute a crime.
Under the Utah Criminal Code, a crime may be a strict liability crime only if the statute specifically states it to be such. 3 At the time in dispute, § 76-2-102 stated:
Every offense not involving strict liability shall require a culpable mental state, and when the definition of the offense does not specify a culpable mental state, intent, knowledge, or recklessness shall suffice to establish criminal responsibility. An offense shall involve strict liability only when a statute defining the offense clearly indicates a legislative purpose to impose strict liability for the conduct by use of the phrase "strict liability" or other terms of similar import. [Emphasis added.] 4
The unlawful sexual intercourse statute, § 76-5-401, supra, does not clearly indicate "a legislative purpose to impose strict liability" as required by § 76-2-102 to establish a strict liability offense. It does not even impliedly indicate a legislative purpose to impose strict liability. Thus, a crime of unlawful sexual intercourse, a crime different from the crime of fornication, cannot be proved unless the state proves the requisite criminal state of mind as to each element of the offense. § 76-2-101(1).
The elements of the degree of unlawful sexual intercourse charged here are: (1) an act of sexual intercourse, (2) with a person, not the defendant's spouse, (3) who is under sixteen years of age. The punishment is enhanced if the defendant is more than three years older than the other person. § 76-5-401(2). In proving unlawful sexual intercourse, therefore, the state must prove a culpable mental state by showing that the defendant "act[ed] intentionally, knowingly, recklessly or with criminal negligence," § 76-2-101(1), as those terms are defined in § 76-2-103.
Clearly, the requisite culpable mental state as to the first and second elements of the offense is established by showing that defendant intentionally engaged in sexual intercourse with a female not his wife. However, since the crime of unlawful sexual intercourse is not a strict liability offense, the critical issue is what mental state must exist as to the victim's age. 5 On its face, the unlawful sexual intercourse statute does not require intent as to all elements of the crime. The mens rea necessary for the third element of the crime requires a consideration of the purposes of the statute. No doubt one purpose of the statute is to deter persons from engaging in intercourse with young, immature persons and to avoid the consequent risk of pregnancies because those subject to the prohibitions of the statute, both males and females, are not likely to be fully knowledgeable in any realistic way about the personal and social consequences of an out-of-wedlock pregnancy. The statute seeks to establish barriers around, and provide a measure of protection to, younger, more impressionable, and perhaps more persuadable persons in order to prevent them from engaging in sexual intercourse out of wedlock.
To accomplish those purposes and still remain true to long-established fundamental principles of the criminal law, which have been incorporated in the Utah Criminal Code, we hold that as to the third element of the crime, there must be proof of a culpable mental state which establishes that the defendant was at least criminally negligent as to the age of the partner. That is, the prosecution must prove that the defendant either was aware of the fact that the partner was underage or that the defendant ought to have been aware of a substantial and unjustifiable risk that his partner was underage. § 76-2-103(4). The test as to the latter part of the standard is an objective, reasonable person test.
Furthermore, § 76-2-304 provides that unless otherwise provided, ignorance or mistake of fact which disproves the culpable mental state is a defense to the crime charged but does not relieve a person from being prosecuted for a lesser included offense. There is no inconsistency in requiring a mens rea of criminal negligence as to age and an affirmative defense of mistake of fact as to age. The mens rea requirement may be based on objective criteria, while the ignorance or mistake of fact defense bears upon the subjective state of mind of the defendant. 6
We recognize that a number of courts have held that a defendant is strictly liable with respect to the age of a victim and that mistake of age is not a defense to the crime charged here. Many courts have argued that the crime is a strict liability offense because the age of the girl is not an element of the offense; therefore, no mens rea is required as to that. The cases are collected in Annot., Mistake or Lack of Information as to Victim's Age As Defense to Statutory Rape, 8 A.L.R.3d 1100 (1966); Model Penal Code § 213.6, Comment 2 (1980). In such jurisdictions, the state would not have to prove that a defendant had knowledge of the partner's age or was criminally negligent in failing to ascertain it, and a defendant's reasonable mistake as to the victim's age would be irrelevant.
Other jurisdictions strive to satisfy the mens rea requirement and still disallow the defense of mistake of age by hypothesizing the necessary mens rea in the intention to have intercourse with a nonspouse, without requiring any mens rea as to the partner's age. That is, the defendant's intent to do one unlawful act is deemed to suffice for the commission of another, unintended act. R. Perkins, Criminal Law 819 (2d ed. 1969). Thus, where the law makes intercourse with any nonspouse illegal, irrespective of age (as under the Utah fornication statute, § 76-7-104), the theory is that since the defendant intended to commit an illegal act that constitutes fornication at least, the unlawful intention or mens rea necessary for that crime is transferable to the charge of unlawful sexual intercourse.
Under that theory, the prosecution is not required to prove the mens rea...
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