Chicago Daily Law Bulletin
Volume: 154 Issue: 122

June 20, 2008

Mens Rea Can Be Found In Sex Crime Against Child

It recently took the 2d District Appellate Court 27 pages to explain how defendant Anthony Douglas could be guilty of the Class X felony of predatory criminal sexual assault of a child without any showing of mens rea as to the age of the victim. People v. Douglas, No. 2-06-0334 (April 8).

Why 27 pages? Because any court understands that there is something very disturbing about holding that a person can be guilty of a Class X crime based on strict liability.

So let me suggest a way the Douglas court could have avoided this conclusion. Let's look at a way to find that Douglas did indeed have proper mens rea for the offense even though he claimed that he believed the victim was older than the age in the statute.

Let's start with defendant Anthony Douglas, a guy whose first, last, AND middle name should be ''Humbert.'' Douglas is a 31-year-old male who admitted that he had sexual intercourse with a 12-year-old girl. He was charged with the Class X felony of predatory criminal sexual assault of a child. 720 ILCS 5/12-14.1(a). This statute makes it a crime for a defendant 17 years of age or over to commit an act of sexual penetration with a child under the age of 13.

Douglas's defense was that he thought she was older than 13. The Appellate Court held that a defendant cannot raise this as a defense. The court explained that the age of the victim is a strict liability element that requires no mental state. The court said it found nothing in the statute that would indicate otherwise, and, besides, ''statutory rape offenses have never required a mental state as to the victim's age.''

So why am I saying that Douglas had the proper mens rea for the offense when he believed the girl was over 13? Because I haven't told you yet how old he thought the girl was. Douglas's defense was that he thought the girl was 15 years old. ''So what?'' you say. ''How can this be a proper mens rea when the statutes pecifically says the victim must be under the age of 13?''

Here's how. First, if the girl really had been 15 years of age as Douglas thought, then he would have been guilty of the Class 2 felony of aggravated criminal sexual abuse. This statute makes it a crime for a defendant at least five years older than the victim to commit an act of sexual penetration if she is at least 13 but under 17 years of age. 720 ILCS 5/12-16(d). Moreover, sex by an adult with a 15-year-old is even considered a ''crime of violence'' under the U.S. Sentencing Guidelines. U.S. v Eirby, 515 F.3d 31 (1st Cir. 2008). Clearly, Douglas had a felonious mens rea regardless of his mistake.

''OK,'' you say, ''so maybe he had the mens rea for a Class 2 felony. But did he also have the mens rea for a Class X felony?''

To answer this, I would direct you to the name of the statute Douglas was accused of violating: predatory criminal sexual assault of a CHILD. The issue is ''How old is a child?''

The statute provides no specific definition of a ''child.'' However, I can show you at least two statutes in the Illinois Criminal Code that specifically define a child as ''a person under 17 years of age.'' 720 ILCS 5/11-6(b) (indecent solicitation of a child) and 5/11-9.1(b) (sexual exploitation of a child).

So we could argue that even if Douglas thought the girl was 15, he still committed ''predatory criminal sexual assault of a child'' because a 15-year-old is indeed a ''child.''

''But hold on,'' you say. ''The predatory criminal sexual assault of a child statute talks only of victims under the age of 13. Doesn't this mean that a person older than 13 is NOT a child under the statute?''

Not necessarily.

''Predatory sexual assault of a child'' could be construed as an aggravated form of ordinary statutory rape. Apparently its purpose is to protect extremely vulnerable young girls. Now the legislature could have done this by simply saying, ''It is a Class X felony for a person to commit an act of sexual penetration with an extremely vulnerable young girl.'' The problem with this, of course, is that judges would disagree on exactly what age divides ''extremely vulnerable young girls'' from underage girls in general.

This leads to a very interesting distinction discussed by Meir Dan-Cohen in a famous Harvard Law Review article. Meir Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 Harvard L. Rev. 625 (1984). Dan-Cohen would argue that the Illinois ''predatory criminal sexual assault of a child statute'' could perhaps be divided into two very different rules. The ''conduct rule'' of the statute tells people in general not to have predatory sex with extremely vulnerable young girls. This is the command of the statute intended to limit the conduct of the public; it creates the legal duty of the public at large.

The statutory age limit of 13, however, may serve a very different function. Dan-Cohen would call this a ''decision rule'' that really is directed only to judges. Why do judges need a special rule directed only to themselves? Because judges could reasonably disagree on just who is an ''extremely vulnerable young girl.'' So therefore the statute draws an arbitrary line at 13 simply to guarantee uniformity of judges' decisions.

And Meir-Cohen then goes further. He would argue that it may be absolutely fair NOT to tell the general public what the judges' ''decision rule'' is. It would be fair if the ''decision rule'' is set low enough that some ''extremely vulnerable young girls'' are above the decision rule's age. Let's assume for the sake of argument that we accept the fact that 13-, 14- or 15-year-old girls are ''extremely vulnerable young girls.'' In other words, a defendant could intend to have sex with an ''extremely vulnerable young girl'' — and intentionally commit the act — but not be guilty of the offense if the ''extremely vulnerable young girl'' is a 13-, 14- or 15-year-old. The ''decision rule'' builds in a cushion that will immunize otherwise guilty people. And even if the defendant thinks the girl is 9 he will not be guilty if she happens to be 13.

But conversely, a defendant will NOT be able to raise a defense if he thought the victim was 13, 14 or 15 and she turns out to be 12. According to what he thought he was doing, he was violating the ''conduct rule,'' i.e., avoid predatory sex with ''extremely vulnerable young girls.'' Therefore, he had the mens rea to violate the statute.

So what would Meir-Cohen say to Douglas? That it is no defense if Douglas thought the girl was 15. If this is what he thought, he had the mens rea to have sex with an ''extremely vulnerable young girl.'' We ignore Douglas's mistake not because it could not have been reasonable; perhaps the 12-year-old really looked 15. Rather, we ignore it because it was irrelevant. Having sex with either a 12-year-old or a 15-year-old is equally culpable under the ''conduct rule'': do not have predatory sex with ''extremely vulnerable young girls.''

Thus, while the 2d District spent pages and pages trying to justify convicting Douglas of a Class X offense based on strict liability, Meir-Cohen would argue that Douglas clearly DID have the mens rea to violate the statute.

Does this end our analysis? No. For what if Douglas thought the 12-year-old girl was really 17? Would this be a defense under Illinois law for ''predatory criminal sexual assault of a child''?

No. Illinois law only allows a defendant to use a reasonable belief that the victim was 17 for certain offenses where 17 is the statutory cut-off age. 720 ILCS 5/12-17(b). Clearly, if a defendant believes his consensual sexual partner is 17 or older, that act would be perfectly legal and there could be no mens rea.

Moreover, there really is no reason why a reasonable belief the victim was 17 should not also be a defense applicable to ''predatory criminal sexual assault of a child.'' Again, if the defendant really believed the consensual sexual partner is 17, then he thinks he is performing a perfectly legal act and has absolutely no mens rea. (For those worried about abuse of this defense, my guess is that it would be the rare case where a fact-finder would ever believe that a defendant could reasonably mistake a 12-year-old for a 17-year-old.)

The Douglas opinion is thoughtful and articulate. But a court should be very reluctant to hold that any element of a Class X offense can be established through strict liability. I have tried to suggest how the 2d District could have held that the state indeed proved that Douglas had proper mens rea as to the girl's age. But, in the long run, the better solution would be for the Illinois legislature to recognize that it is a defense to predatory criminal sexual assault of a child if the defendant reasonably believes the girl is 17 or older.