In most of the U.S., yes, you can. But it does depend on the state in which the underage sex occurred. A few states have laws that allow a defendant to argue a reasonable mistake of the victim’s age as a defense. Some, however, allow the defense only in limited circumstances.

This article discusses the defense of mistake of the victim’s age in general. For more information about statutory rape, see our article on Statutory Rape.

Statutory Rape

“I swear I thought she was 18!” This is a claim that a lot of statutory rape defendants make. Some may even be telling the truth. But, does it even matter? Not in most states.

Generally speaking, a person commits the crime of statutory rape when he or she is over a certain age and has sex with a person under a certain age (the statutory age of consent), even if the underage person consented to have sex. Statutory rape is usually a “strict liability” crime, meaning that the intent or state of mind of the offender is irrelevant. So long as he or she had sex with someone under the statutory age of consent, he or she has committed the crime. So, what the offender thought, including what he or she thought was the victim’s true age, does not matter and will not be the basis of a defense to the crime.

Some states, however, do have laws that allow a statutory rape defendant to offer evidence of his or her reasonable belief that the victim was over the age of statutory consent. In some of those states, the circumstances under which the defense may be offered are limited (for example, to situations where the victim was over a certain age but under the age of consent, or where the victim’s own statements created the offender’s mistaken belief about the victim’s age).

Historical view: Mistake of age was no defense

Until 1964, the rule throughout the U.S. was that a statutory rape defendant’s mistaken belief that the underage sex partner was over the age of consent was no defense to the charge. The view was that a “state of mind” defense (such as a mistaken belief about a fact) is unavailable to a defendant charged with a strict liability crime such as statutory rape. But, California led the way to a change in that view.

Reasonable, good-faith mistake of age

The California Supreme Court ruled in a 1964 case that a statutory rape defendant’s reasonable, good-faith belief that the victim was over the age of consent and had consented to sex was a defense to the charge of statutory rape. (People v. Hernandez, 393 P.2d 673 (1964).)

The Model Penal Code, a recommended set of criminal laws developed by legal scholars, now includes a “mistake of age” defense to statutory rape. And, about a third of the states have some form of the defense, although most states have not adopted the defense outright as part of their criminal laws. Many of those states that do allow the defense do so only in limited situations.

What is a reasonable, good-faith mistake?

In states that allow the defense without limitation, a statutory rape defendant is permitted to offer evidence that he reasonably and in good faith believed that the victim was over the age of consent. Such evidence may include the defendant’s own testimony about his belief and its basis, testimony or other evidence concerning what the victim said, how he or she appeared and acted, and the age that the victim or others gave as his or her true age. The defense is allowed in these states regardless of the actual age of the victim. Regardless of the latitude of the defense in the particular state, the defendant must show that he reasonably and in good faith believed the victim to be over the age of consent.

So, if a statutory rape defendant claimed at trial to have believed that the obviously pre-pubescent girl in braces and pig-tails was over 18, he likely would not be able to establish a reasonable belief that she was of legal age. And, if he had introduced his new, extremely young girlfriend as a “Lolita” and referred to her as “jail bait” to his friends, he would have a very hard time establishing that he had a good faith belief that she was over the age of consent.

Mistake of age defense in limited circumstances

Some states only allow a statutory rape defendant to raise the defense in limited circumstances. The defense is most commonly allowed in the following situations:

• where the victim’s age was under the age of consent but over a certain minimum age (such as 13), or
• where the victim made statements that he or she was over the age of consent.

Again, the defendant also would have to show that these factors supported his reasonable, good-faith (although mistaken) belief as to the victim’s age.

A statutory rape defendant may contend that the victim and/or other people with whom the victim was acquainted told him that the victim was over the age of consent. In some states, this evidence may be offered in support of a mistake of age defense.

Offering a mistake of age defense doesn't necessarily mean that the defendant will be acquitted. The jury may not buy his claim that he sincerely believed the victim to be of age, or other evidence may make the belief unreasonable.

Consult a Lawyer

Many states do not allow a mistake of age defense at all, and even those that do may limit the circumstances under which a statutory rape defendant may raise it. A reasonable, good-faith mistake of the age of the victim defense is difficult to establish and requires skilled legal counsel. If you have been charged with statutory rape or any sex crime, consult an experienced criminal defense lawyer in your area.

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