In most states, a person can be convicted of statutory rape even if the person genuinely believed a sexual partner was above a certain age—called the “age of consent.” (More on age of consent below.) In a few states, defendants can raise a defense to statutory rape based on a reasonable mistake as to a partner’s age—but usually only in limited circumstances.
This article primarily discusses the defense of “mistake of age” in statutory rape cases. For a general discussion on the issue of statutory rape laws, read “Statutory Rape Laws and Charges.” (Most states don’t use the term “statutory rape’” in their laws; instead, the crime usually falls under a state’s rape, sexual assault, or criminal sexual conduct laws.)
In general, a person commits statutory rape by having sexual intercourse with a person younger than a certain age—called the “age of consent.” Each state defines statutory rape differently, from the age of consent to any allowable defenses. States, however, do not vary on one point—consent by an underage person to have sex is not a defense to statutory rape.
Each state defines its age of consent in law, and most set the age between 16 and 18. The age of consent represents a strict cut-off point in statute that draws a line between criminal and lawful behavior. Say you live in a state where the age of consent is 16. Having sexual intercourse with someone younger than 16 is a crime—even if the person consented and was only younger than 16 by a day.
In most states, it doesn’t matter if the defendant thought the victim was older than the age of consent. Statutory rape is considered a “strict liability” crime—one that doesn’t require proof that the defendant knew the victim’s underage status. To prove statutory rape in a strict liability state, the prosecutor only needs to prove the defendant had sex with an underage person. It doesn’t matter if the sexual partner claimed to be, or looked, the age of consent. (Another example of a strict liability offense is speeding—you can get a speeding ticket whether you meant to speed or not.)
In a minority of states, defendants can raise a mistake-of-age defense but only in limited circumstances. And, when allowed, a defendant must prove the mistake was reasonable. Some states require a defendant to establish additional factors to prove the defense.
States that allow mistake-of-age defense for statutory rape generally limit the defense to some extent. Most commonly, states allow defendants to raise the mistake-of-age defense only when the victim is older than a certain age (such as 13). For statutory rape involving younger victims, most states have decided ignorance (or mistake) isn’t a credible defense and strict liability applies in these cases. States vary in setting these age thresholds.
As an example, a state could set the age of consent at 16 but limit the mistake-of-age defense only to situations where the underage person was age 13, 14, or 15. If a person has a sexual relationship with a child younger than 13, strict liability applies and a defendant cannot argue the victim looked 16.
If a mistake-of-age defense is allowed, a defendant needs to prove the mistake was reasonable. Facts or circumstances a defendant might use to establish proof of reasonable belief include:
For instance, a defendant’s mistake in thinking a victim was 17 might be found reasonable if the victim drives and claims to have a job. But a jury likely wouldn’t find it reasonable for a defendant to claim mistaking a prepubescent 12-year-old child who attended middle school for a 17-year-old.
Just as states define age of consent differently, a few states define their mistake-of-age defense differently. For instance, Alaska requires proof that a defendant undertook reasonable measures to verify the victim’s age. In Washington state, a defendant must prove reasonable belief based on the victim’s statements concerning age.
(Alaska Stat. § 11.41.445 (2019); Wash. Rev. Code Ann. § 9A.44.030 (2019).)
Many states do not allow a mistake-of-age defense at all, and even those that do limit the circumstances under which a statutory rape defendant can raise it. A reasonable, good-faith mistake-of-age defense can be difficult to establish and requires skilled legal counsel.
The potential consequences of a statutory rape conviction are significant, including possible prison time and sex offender registration. If you’ve been charged with statutory rape or any sex crime, consult an experienced criminal defense lawyer.