Owens v. State , 352 Md. 663 ( 1999 )

CHASANOW, Judge.

We are called upon in this case to examine the constitutionality of Maryland’s statutory rape law, Maryland Code (1957, 1996 Repl.Vol.), Article 27, § 463(a)(3),¹ as interpreted by this Court in Garnett v. State, 332 Md. 571, 632 A.2d 797 (1993), to be a strict liability offense. For the reasons set forth below, we hold that Appellant’s rights to due process under the Maryland and United States Constitutions were not violated when, upon being charged with statutory rape, the trial court prevented Appellant from presenting his defense that he reasonably believed the victim was above 13 years of age.

I.

A.

The facts in this case are not in dispute. According to the agreed statement of facts, on April 11, 1997, a police officer conducting a routine nighttime patrol discovered Timothy Owens and Ariel Correta Johnson in the rear seat of a parked car, dressing. When asked, Johnson told the police officer that she was 16 years old. After calling Johnson’s residence, he discovered that her correct date of birth was October 16, 1983, making her 13 years old at the time of the incident. Owens was born April 27, 1978, making him 18 years old at the time. After compiling evidence that the two had just engaged in sexual intercourse, Owens was charged with second degree rape in violation of § 463(a), which states in pertinent part: “A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person: * * * (3) Who is under 14 years of age and the person performing the act is at least four years older than the victim.” Owens elected to proceed by way of a not guilty agreed statement of facts, which the prosecutor recited into the record. It was not disputed that “[t]he victim, if asked, would also testify that she had told the Defendant that she was 16 years of age.”

Owens’ counsel made a motion to dismiss the charges, arguing that the statute was unconstitutional in that it violated Owens’ due process rights under the United States Constitution and the Maryland Declaration of Rights. Owens also argued that, notwithstanding this Court’s decision in Garnett, the trial court should find that there was a reasonable mistake of fact that negates Owens’ guilt. The trial judge denied that motion and also denied a subsequent motion for judgment of acquittal noting that, under Garnett, mistake of age could only be used as a mitigating factor at the time of sentencing. The judge then found Owens guilty of second degree rape and sentenced him to 18 months of imprisonment, with all but time served (12 days) suspended, and 18 months of probation. Owens was also ordered to register as a child sex offender, as required by § 792, and to submit to DNA testing. In sentencing Owens, the court specifically considered mistake of age as a mitigating factor. Owens appealed to the Court of Special Appeals and this Court, on its own motion, granted certiorari before review by that court.

B.

In Garnett, we addressed whether Maryland’s statutory rape law required the State to prove whether the defendant knew the female victim was younger than 14 years of age and whether the trial court erred by excluding evidence “that he had been told, and believed, that she was 16 years old.” Garnett, 332 Md. at 574, 632 A.2d at 798. In ruling that the defendant in Garnett could not present evidence that he was told and believed that the defendant had reached 16 years of age, the trial judge ruled that § 463(a)(3) requires proof of only three elements: (1) that there was vaginal intercourse; (2) that the complaining witness was, in fact, under 14 years of age; and (3) the defendant was at least four years older than the complaining witness with whom he had sexual intercourse. 332 Md. at 575, 632 A.2d at 799. The trial court concluded that statutory rape was a strict liability offense and, therefore, mistake of age could not be a defense. On appeal, the defendant argued that § 463(a)(3), which has no express mens rea requirement, should be judicially interpreted to allow a defense of a reasonable mistake of age. After reviewing the legislative history of Maryland sex crimes statutes, Garnett, 332 Md. at 576, 632 A.2d at 799-800, we concluded:

“[T]he Legislature explicitly raised, considered, and then explicitly jettisoned any notion of a mens rea element with respect to the complainant’s age in enacting the law that formed the basis of current § 463(a)(3). In the light of such legislative action, we must inevitably conclude that the current law imposes strict liability on its violators.”

Garnett, 332 Md. at 587, 632 A.2d at 805. Thus, we held that the trial court had not erred in refusing to allow Garnett to present evidence that he had been told, and in fact believed, that the complaining witness was 16 years old. Garnett, 332 Md. at 584-86, 632 A.2d at 803-05. Our holding that the statute did not afford defendant a mistake-of-age defense was consistent with the majority rule in that “a defendant’s knowledge of the age of a victim is not an essential element of statutory rape” and that “[p]roof of a statutory rape requires merely proof of an act of sexual intercourse and proof that the victim is below the prohibited age.” Cohn Campbell, Annotation, Mistake or Lack of Information as to Victim’s Age as Defense to Statutory Rape, 46 A.L.R.5th 499, 508 (1997). We did not, however, address the constitutionality of § 463(a)(3).

Although we did not address the constitutional question in Garnett, we noted that “[t]he requirement that an accused have acted with a culpable mental state is an axiom of criminal jurisprudence.” 332 Md. at 578, 632 A.2d at 800. In the instant case, we consider whether the “axiom” we noted in Garnett is of constitutional dimensions with respect to Maryland’s statutory rape law. In particular, we must determine whether the legislature exceeded its powers under the Fourteenth Amendment of the United States Constitution² and Articles 20 and 24 of the Maryland Declaration of Rights³ by precluding Appellant from raising his mistake-of-age defense.

II.

The United States Supreme Court has never addressed the constitutionality of denying a defendant the ability to present a mistake-of-age defense to the crime of statutory rape. On a number of occasions, however, the Supreme Court has articulated its strong preference for finding within a criminal statute a mens rea element where none has been expressly included. Appellant cites Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), for the proposition that “in order to convict a defendant of a criminal offense, the State must prove a culpable mental state.” Morissette had been charged with “unlawfully, wilfully and knowingly stealing] and convert[ing]” U.S. government property when he took bomb casings from an Air Force practice bombing range. Morissette, 342 U.S. at 247-48, 72 S.Ct. at 241-42, 96 L.Ed. at 292. He challenged his conviction on the ground that he should have been able to present the defense that he reasonably believed that the shell cases had been abandoned. Morissette, 342 U.S. at 248-49, 72 S.Ct. at 242-43, 96 L.Ed. at 292-93. In assessing whether the federal larceny statute dispensed with a criminal intent requirement, the Court discussed its “universal and persistent” policy favoring some mental element to justify punishment. Morissette, 342 U.S. at 250-51, 72 S.Ct. at 243, 96 L.Ed. at 293-94. In light of the common law’s requirement of intent for the crime of theft, the Court -reversed the defendant’s conviction.

Similarly, in Staples v. United States, 511 U.S. 600, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994), the Court interpreted the National Firearms Act to include a mens rea requirement, reversing a criminal conviction. The trial court had ruled that the prosecution did not have to prove that the defendant knew that he possessed a weapon with characteristics that brought it within the prohibitions of the Act. Reversing the lower courts, the Supreme Court accepted the defendant’s argument that the government should have been required to prove beyond a reasonable doubt that the defendant knew the weapon he possessed was an automatic weapon required to be registered under the Act. Staples, 511 U.S. at 619-20, 114 S.Ct. at 1804, 128 L.Ed.2d at 624-25. See also United States v. X-Citement Video, Inc., 513 U.S. 64, 78, 115 S.Ct. 464, 472, 130 L.Ed.2d 372, 385 (1994)(holding that the term “knowingly” in an obscenity statute required knowledge that the materials included sexual depictions of minors). We have similarly been reluctant to read into criminal statutes an intent of the legislature to forego a mens rea requirement. See State v. McCallum, 321 Md. 451, 456-57, 583 A.2d 250, 252-53 (1991)(interpreting statute prohibiting driving with a suspended license to include a mental element); Dawkins v. State, 313 Md. 638, 649, 547 A.2d 1041, 1046 (1988)(observing that the “statutory scheme strongly indicates an intention on the part of the General Assembly to require scienter as an element of the [possession of controlled substances and controlled paraphernalia] offenses”).

Appellant finds perhaps his strongest support that the absence of a mens rea requirement in a criminal statute is violative of due process in Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957), reh’g denied, 355 U.S. 937, 78 S.Ct. 410, 2 L.Ed.2d 419 (1958). The defendant in Lambert was convicted of violating a Los Angeles felon registration ordinance. The Supreme Court addressed whether due process was violated when the ordinance was “applied to a person who ha[d] no actual knowledge of his duty to register, and where no showing [was] made of the probability of such knowledge.” Lambert, 355 U.S. at 227, 78 S.Ct. at 242, 2 L.Ed.2d at 231. In finding that the defendant’s due process rights were violated, the Court emphasized that the conduct made illegal [was] “wholly passive.” Lambert, 355 U.S. at 228, 78 S.Ct. at 243, 2 L.Ed.2d at 231. “It is unlike the commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed.” Id.

Despite its preference for a mens rea requirement when interpreting criminal statutes and its holding in Lambert, the “[Supreme] Court has never articulated a general constitutional doctrine of mens rea.” Powell v. Texas, 392 U.S. 514, 535, 88 S.Ct. 2145, 2155-56, 20 L.Ed.2d 4254, 1269 (1968). Rather, within certain constitutional limits, states may “create strict criminal liabilities by defining criminal offenses without any element of scienter.” Smith v. California, 361 U.S. 147, 150, 80 S.Ct. 215, 217, 4 L.Ed.2d 205, 209 (1959), reh’g denied, 361 U.S. 950, 80 S.Ct. 399, 4 L.Ed.2d 383 (1960). Several of the cases upholding strict liability statutes involve “public welfare” statutes, “whereby penalties serve as [an] effective means of regulation.” United States v. Dotterweich, 320 U.S. 277, 280-81, 284-85, 64 S.Ct. 134, 136, 138, 88 L.Ed. 48, 51, 53 (1943)(approving criminal sanction for misbranding of drugs “though consciousness of wrongdoing be totally wanting”); United States v. Freed, 401 U.S. 601, 609-10, 91 S.Ct. 1112, 1117-18, 28 L.Ed.2d 356, 362-63 (1971), reh’g denied, 403 U.S. 912, 91 S.Ct. 2201, 29 L.Ed.2d 690 (1971)(holding that the National Firearms Act imposes criminal liability on a person possessing hand grenades despite one’s ignorance of illegality of such possession); United States v. Balint, 258 U.S. 250, 252-54, 42 S.Ct. 301, 302-03, 66 L.Ed. 604, 606 (1922)(similar holding).

The Supreme Court, however, has never suggested that strict criminal liability may be imposed only for regulatory offenses. For example, in United States v. Feola, 420 U.S. 671, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975), the Court interpreted a federal assault statute to not include a mens rea requirement as to the identity of the victim of a conspiracy. The Court held a criminal defendant liable for conspiracy to assault a federal officer when the defendant had no knowledge that the individual was a federal officer who would subject him to federal criminal jurisdiction. Feola, 420 U.S. at 694-95, 95 S.Ct. at 1261-62, 43 L.Ed.2d at 558-59.⁴ The Court also has upheld convictions and imprisonment for the strict liability crime of bigamy, even when the defendants reasonably believed they had a valid divorce that would have made the second marriage lawful. Williams v. North Carolina, 325 U.S. 226, 238, 65 S.Ct. 1092, 1099, 89 L.Ed. 1577, 1586 (1945), reh’g denied, 325 U.S. 895, 65 S.Ct. 1560, 89 L.Ed. 2006 (1945).

Finally, this Court and the Supreme Court have held that under certain circumstances statutes that create conclusive, irrebuttable presumptions may violate due process. “[P]ermanent irrebuttable presumptions have long been disfavored under the Due Process Clause.” Vlandis v. Kline, 412 U.S. 441, 446, 93 S.Ct. 2230, 2233, 37 L.Ed.2d 63, 68 (1973). In Vlandis, the Supreme Court invalidated a Connecticut statute that created an irrebuttable presumption affecting tuition rates at a state university. Under the statute, a student who applied to a Connecticut school while a non-resident or who was a non-resident in the year before applying remained a non-resident for tuition rate purposes for as long as he or she remained a student. Vlandis, 412 U.S. at 443, 93 S.Ct. at 2232, 37 L.Ed.2d at 66. The Court said that the Due Process Clause forbids a state from

“denying] an individual the resident rates on the basis of a permanent and irrebuttable presumption of nonresidence, when that presumption is not necessarily or universally true in fact, and when the State has a reasonable alternative means of making the crucial determination.”

Vlandis, 412 U.S. at 452, 93 S.Ct. at 2236, 37 L.Ed.2d at 71. See also Cleveland Board of Education v. LaFleur, 414 U.S. 632, 647, 94 S.Ct. 791, 799, 39 L.Ed.2d 52, 64 (1974)(public school policies presumed that pregnant women were physically unfit for classroom teaching); Stanley v. Illinois, 405 U.S. 645, 649-50, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551, 557-58 (1972)(statute presumed that all unmarried fathers are unqualified to raise their children).

Applying a similar test in Mahoney v. Byers, 187 Md. 81, 48 A.2d 600 (1946), this Court struck down a rule promulgated by the Maryland Racing Commission as violative of the Maryland Declaration of Rights. The rule, designed to penalize horse trainers for drugging horses within the 48 hours prior to racing, prohibited persons from “knowingly or carelessly” permitting the administering of a drug. Mahoney, 187 Md. at 83, 48 A.2d at 602. The rule then provided that a positive test of horse saliva or urine on the day of the race “shall be conclusive evidence either that there was knowledge of the fact ... or that he was guilty of carelessness.” Mahoney, 187 Md. at 84, 48 A.2d at 602. We observed that, because there was no rule requiring trainers to keep watch over their horses day and night in the 48 hours prior to the start of a race, the presumption in the rule arose “out of the thin air,” and thus, we held the conclusive presumption invalid. Mahoney, 187 Md. at 88, 48 A.2d at 604.

III.

At the outset, we note that our decision here is not concerned with the wisdom of Maryland’s policy of imposing strict criminal liability on those who engage in sexual intercourse with children under age 14. Absent any constitutional prohibition, it is within the “legislative power to define crimes and to fix their punishment.” Scarlett v. State, 201 Md. 310, 320, 93 A.2d 753, 757 (1953), cert. denied, 345 U.S. 955, 73 S.Ct. 937, 97 L.Ed. 1377 (1953). Our only consideration is whether due process requires that Owens be allowed to defend the charge of statutory rape on the grounds that he reasonably believed that the victim was above the age of 13.

An overwhelming majority of courts confronted -with a constitutional challenge to statutory rape laws have held that denying a defendant a mistake-of-age defense in a statutory rape case does not deprive him of his due process rights.⁵ We are aware of only one court which has held that due process mandates a mistake-of-age defense to statutory rape, and that holding appears to be based on state, and not federal, constitutional analysis. See State v. Guest, 583 P.2d 836 (Alaska 1978).⁶ We decline to deviate from the majority rule and uphold the legislature’s intent, as determined in Garnett, to make statutory rape a strict liability crime. While due process concerns undoubtedly place some limitations on the legislature’s ability to create strict liability crimes, for the reasons set forth below, we find that § 463(a)(3) falls within those limits.

A.

Appellant finds little support in any Court of Appeals or United States Supreme Court decision for the proposition that a mental element is constitutionally required for criminal liability, even when substantial penalties are involved. In support of his argument that the defense of mistake of age is constitutionally required, Appellant contends that the Supreme Court, in its Morissette and X-Citement Video decisions, and this Court, in our decision in Garnett, misinterpreted the common law, which, appellant argues, did allow for a reasonable mistake-of-age defense to statutory rape. Authorities are apparently divided as to whether, at common law, a mistake-of-age defense to statutory rape was permitted. A number of courts have stated, for example, that “statutory rape was universally regarded as a strict liability offense until well into the twentieth century.” United States v. Brooks, 841 F.2d 268, 270 (9th Cir.1988), cert. denied, 487 U.S. 1227, 108 S.Ct. 2887, 101 L.Ed.2d 922 (1988). See also Garnett, 332 Md. at 587, 632 A.2d at 805 (noting the “traditional view of statutory rape as a strict liability crime”). Conversely, other authorities have explained that, under the early common law and English statutes, mistake of age was a permissible defense to statutory rape. See Larry W. Myers, Reasonable Mistake of Age: A Needed Defense to Statutory Rape, 64 Mich. L.Rev. 105, 109-10 (1965); Garnett, 332 Md. at 605-06 n. 14, 632 A.2d at 814 n. 14 (Bell, J., dissenting). As Appellant’s brief states, Blackstone’s Commentaries, widely accepted as authoritative on English criminal law, explain that “to constitute a crime against human laws, there must be, first, a vicious will; and secondly, an unlawful act consequent upon such vicious will.” 4 William Blackstone, Commentaries 21 (1769).

It is not necessary for us to resolve the apparent dispute as to whether, at common law, a mistake-of-age defense to statutory rape was permissible. Regardless of the status of the defense at common law, we have determined that our statute does not include a mistake-of-age defense, and the cases simply do not support the proposition that due process mandates that the mistake-of-age defense be allowed. Significantly, our own cases and the Supreme Court cases that articulate the “universal and persistent” policy favoring a mens rea component for criminal liability, Morissette, 342 U.S. at 250, 72 S.Ct. at 243, 96 L.Ed. at 293, involve interpretations of state or federal criminal statutes, not interpretations of the Due Process Clause. See, e.g., Staples, 511 U.S. at 604, 114 S.Ct. at 1796, 128 L.Ed.2d at 615 (noting that its decision turned upon “a question of statutory construction”); McCallum,, 321 Md. at 455-57, 583 A.2d at 252-53 (interpreting a driving with suspended license statute).

In contrast to its policy of favoring inclusion of a mens rea element when interpreting a statute, when interpreting the Due Process Clause the Supreme Court has often endorsed the concept of strict criminal liability. In Lambert, the Supreme Court explicitly rejected Blackstone’s view that a vicious will “is necessary to constitute a crime, for conduct alone without regard to the intent of the doer is often sufficient. There is wide latitude in the lawmakers to declare an offense and to exclude elements of knowledge and diligence from its definition.” Lambert, 355 U.S. at 228, 78 S.Ct. at 242, 2 L.Ed.2d at 231 (citation omitted). In concluding that the defendant need not have knowledge that the assault victim was a federal agent in Feola, the court observed that laws imposing strict liability “embody the social judgment that it is fair to punish one who intentionally engages in conduct that creates a risk to others, even though no risk is intended or the actor, through no fault of his own, is completely unaware of the existence of any risk.” 420 U.S. at 690-91, 95 S.Ct. at 1267, 43 L.Ed.2d at 556. In rejecting the defendant’s due process challenge to the bigamy statute in Williams, the Court concluded:

“The objection that punishment of a person for an act as a crime when ignorant of the facts making it so, involves a denial of due process of law has more than once been overruled. In vindicating its public policy and particularly one so important as that bearing upon the integrity of family life, a State in punishing particular acts may provide that ‘he who shall do them shall do them at his peril and will not be heard to plead in defense good faith or ignorance.’ United States v. Balint, 258 U.S. 250, 252, [42 S.Ct. 301, 302, 66 L.Ed. 604, 605 (1922) ], quoting Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 69, 70, [30 S.Ct. 663, 666, 667, 54 L.Ed. 930, 935, 936 (1910) ].”

325 U.S. at 238, 65 S.Ct. at 1099, 89 L.Ed. at 1586.⁷

Nor do we believe that the risk of 20 years of imprisonment or the trial court’s requirement that the defendant register as a “child sex offender” renders unconstitutional Maryland’s statutory rape law.⁸ While courts have considered the substantiality of the penalty imposed by a statute in determining whether a statute includes a mens rea element, they have done so for purposes of statutory construction and not for purposes of constitutional analysis. For example, in McCallum, 321 Md. at 457, 583 A.2d at 253, we stated that “the nature of the penalty ... give[s] some indication that the Legislature did not intend this to be a ‘public welfare’ [strict liability] offense.” Likewise, the Supreme Court’s decision in Staples, which discusses the severity of the penalty at length, considered the penalty only as a factor in interpreting legislative intent. The Court noted that “a severe penalty is a ... factor tending to suggest that Congress did not intend to eliminate a mens rea requirement.” Staples, 511 U.S. at 618-19, 114 S.Ct. at 1804, 128 L.Ed.2d at 624. Moreover, the Court gave no indication that Congress would have exceeded any constitutional limits had it made the National Firearms Act a strict liability statute.⁹

Having explained that constitutional due process does not impose a universal requirement that criminal laws, such as Maryland’s statutory rape law, include a mens rea element, we turn now to more specific requirements of the Due Process Clause.

B.

A fundamental tenet of due process is that persons of ordinary intelligence and experience have a reasonable opportunity to know what actions are prohibited so that they may conform their conduct according to the law. Bowers v. State, 283 Md. 115, 120, 389 A.2d 341, 345 (1978). We believe that Maryland’s statutory rape law provides constitutionally sufficient notice.

The action for which Owens has been convicted, sexual intercourse with a child under age 14, involves conduct for which Owens was reasonably on notice might run afoul of the law and, therefore, conduct that he could have avoided. Thus, § 463(a)(3) shares little in common with the city ordinance the Supreme Court invalidated in Lambert. The ordinance struck down in Lambert made it a crime for any convicted person to remain in Los Angeles for more than five days without registering. Lambert, 355 U.S. at 226, 78 S.Ct. at 242, 2 L.Ed.2d at 230. In striking down the ordinance, the Court emphasized the defendant’s lack of notice and the “wholly passive” nature of the conduct. Lambert, 355 U.S. at 228, 78 S.Ct. at 243, 2 L.Ed.2d at 231. The Court said,

“[Failure to register] is unlike the commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed. * * * Violation of [the municipal code’s] provisions is unaccompanied by any activity whatever, mere presence in the city being the test.

Moreover, circumstances which might move one to inquire as to the necessity of registration are completely lacking.”

Lambert, 355 U.S. at 228-29, 78 S.Ct. at 243, 2 L.Ed.2d at 231-32.

Unlike the ordinance in Lambert, the sexual intercourse proscribed by § 463(a)(3) can hardly be characterized as passive; it involves conscious activity which gives rise to circumstances that place a reasonable person on notice of potential illegality. See State v. Tague, 310 N.W.2d 209, 212 (Iowa 1981)(concluding in statutory rape case that “[o]bviously [defendant’s] conduct was active in nature and he was alerted to the possible criminal consequences of his acts.”). Our 1993 decision in Garnett, the state’s longstanding prohibition on sexual intercourse with minors, and Maryland laws proscribing other sexual behavior¹⁰ put defendant on notice of the potential risks of miscalculating the victim’s age. Garnett, 332 Md. at 591, 632 A.2d at 807 (Eldridge, J., dissenting)(“[T]he ordinary defendant in [a statutory rape prosecution] is or ought to be aware that there is a risk that the young person is not above the age of consent.”). See also State v. Stokely, 842 S.W.2d 77, 81 (Mo.1992)(en banc)(“[Statutory rape law] clearly notifies potential offenders that mistake concerning a victim’s age is not a valid defense and will not be considered by a court.”); Freed, 401 U.S. at 609, 91 S.Ct. at 1118, 28 L.Ed.2d at 362 (observing that “one would hardly be surprised to learn that possession of hand grenades is not an innocent act”). Moreover, as the Supreme Court has observed, in the case of statutory rape, “the perpetrator confronts the underage victim personally and may reasonably be required to ascertain that victim’s age.” X-Citement Video, 513 U.S. at 72 n. 2, 115 S.Ct. at 469 n. 2, 130 L.Ed.2d at 381 n. 2 (dictum). Indeed, it is hard to imagine when a defendant, necessarily four years older than the victim under § 463(a)(3), would be “morally blameless” when he or she engages in sexual intercourse with a child as young as age 13. Tagne, 310 N.W.2d at 211.

C.

We next consider Maryland’s interest in enacting its statutory rape law and whether the law is suited to that interest. We conclude that the state’s purpose in promoting the physical and mental health of children is a compelling one and that the statute is properly designed to accomplish this purpose.

1.

Legislators generally have broader discretion in enacting laws to promote the health and welfare of children than they have for adults. “The Court long has recognized that the status of minors under the law is unique in many respects.” Bellotti v. Baird, 443 U.S. 622, 633, 99 S.Ct. 3035, 3043, 61 L.Ed.2d 797, 807, reh’g denied, 444 U.S. 887, 100 S.Ct. 185, 62 L.Ed.2d 121 (1979). Indeed, the Supreme Court has “sustained legislation aimed at protecting the physical and emotional well-being of youth even when the laws have operated in the sensitive area of constitutionally protected rights.” New York v. Ferber, 458 U.S. 747, 757, 102 S.Ct. 3348, 3354, 73 L.Ed.2d 1113, 1122 (1982).

The state’s compelling interest in promoting the welfare of children provides a powerful justification for disallowing a mistake-of-age defense to statutory rape.¹¹ “The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance.” Ferber, 458 U.S. at 757, 102 S.Ct. at 3355, 73 L.Ed.2d at 1123. The case law testing the constitutionality of strict liability statutory rape laws is unanimous in recognizing the significance of the potential harm caused by sexual activity involving children, even with their consent.¹² These risks involve potential physical harm, including the risk of venereal diseases, especially the HIV virus, trauma, and even permanent damage to a child’s organs. Statutory rape laws may help prevent pregnancies, which carry “significant social, medical, and economic consequences for both the mother and her child, and the State.” Michael M. v. Sonoma County Superior Court, 450 U.S. 464, 470, 101 S.Ct. 1200, 1205, 67 L.Ed.2d 437, 443 (1981)(footnote omitted).

Perhaps most significantly, an adult who engages in sexual activity with a child may cause the child serious psychological damage, regardless' of the child’s maturity or lack of chastity. Since the adult will almost always be more physically mature and experienced in sexual matters, the risk of sexual exploitation is significant. Moreover, the effects on children of sexual exploitation often follow the child into adulthood, with societal consequences as well. As the New Jersey Supreme Court has recognized:

“Sexual assault takes a heavy toll on its victims, particularly on children. Recent research indicates that a number of psychosocial problems—including chronic depression and anxiety, isolation and poor social adjustment, substance abuse, suicidal behavior, and involvement in physically or sexually abusive relationships as either aggressor or victim—are more common among adults molested as children than among those with no such childhood experiences. Victims of sexual abuse can suffer an impaired ability to critically evaluate the motives and behavior of others, making them more vulnerable to revictimization. An especially disturbing finding about child sexual abuse is its strong intergenerational pattern; in particular, due to the psychological impact of their own abuse, sexually abused boys have been found to be more likely than non-abused boys to turn into offenders against the next generation of children, and sexually abused girls are more likely to become mothers of children who are abused. And studies show that adult male aggressive behavior, particularly sexual aggression, is associated with the trauma of childhood sexual abuse. Thus, apart from the substantial personal trauma caused to the victims of such crimes, sexual crimes against children exact heavy social costs as well.”

Doe v. Poritz, 142 N.J. 1, 662 A.2d 367, 375 (N.J.1995)(quoting Brief for the United States at 5-8 (citations omitted)).

The state’s overwhelming interest in protecting children from these risks outweighs any interest that the individual may have in engaging in sexual relations with children near the age of consent. Although we need not reach the issue, it has been held that a person has no constitutional right to engage in sexual intercourse, at least outside of marriage, and sexual conduct frequently is subject to state regulation. Cf. Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), reh’g denied, 478 U.S. 1039, 107 S.Ct. 29, 92 L.Ed.2d 779 (1986)(upholding Georgia statute criminalizing the act of sodomy). Many states still criminalize fornication¹³ and other sexual behavior.¹⁴ Furthermore, given the substantial risks of sexual abuse and exploitation of children, the public policies behind statutory rape laws appear to be significantly stronger than, to take one example, the public policy of promoting “the integrity of family life” through the crime of bigamy, for which the defendants in Williams were constitutionally imprisoned despite the absence of any criminal intent. Williams, 325 U.S. at 238, 65 S.Ct. at 1099, 89 L.Ed. at 1586. Statutory rape laws may be deemed necessary by legislators to protect those whose “immaturity and innocence prevents them from appreciating the full magnitude and consequences of their conduct.” People v. Cash, 419 Mich. 230, 351 N.W.2d 822, 826-27 (Mich.1984).

The crime of statutory rape also does not implicate other constitutional rights that heighten our level of inquiry. If, for example, First Amendment rights are implicated by a strict liability statute, we may be more likely to find the statute in violation of due process requirements. See Smith, 361 U.S. at 153, 80 S.Ct. at 218, 4 L.Ed.2d at 211 (interpreting an obscenity statute to include a mens rea requirement in order to avoid “imposing] a restriction upon the distribution of constitutionally protected as well as obscene literature”); X-Citement Video, 513 U.S. at 78, 115 S.Ct. at 472, 130 L.Ed.2d at 385 (interpreting the term “knowingly” in a federal statute regulating child pornography to include knowledge that the materials involve minors). The instant case does not implicate the First Amendment; rather, the statute at issue involves constitutionally permissible regulation of sexual conduct.

2.

The legislature’s decision to disallow a mistake-of-age defense to statutory rape furthers its interest in protecting children in ways that may not be accomplished if the law were to allow such a defense. Precisely because § 463(a)(1) eliminates the need for the state to prove that the potential offender knew or was unreasonable in the failure to recognize that the victim was under age 14, the statute “may reasonably be expected to have some deterrent effect.” United States v. Ransom, 942 F.2d 775, 777 (1991), cert. denied, 502 U.S. 1042, 112 S.Ct. 897, 116 L.Ed.2d 799 (1992); see also People v. Gonzales, 148 Misc.2d 973, 561 N.Y.S.2d 358, 361 (Co.Ct.1990)(“[T]he criminal consequences of violating the statutory age limit under present law deter sexual contact between older, more sophisticated adults, and often naive minors.”).

Deterrence is accomplished by placing the risk of an error in judgment as to a potential sex partner’s age with the potential offender. Moreover, even though a criminal statute that dispenses with any mens rea requirement could unconstitutionally infringe upon innocent conduct, cf. Liparota v. United States, 471 U.S. 419, 426, 105 S.Ct. 2084, 2088, 85 L.Ed.2d 434, 440 (1985)(construing statute to include mens rea element “is particularly appropriate where ... to interpret the statute otherwise would be to criminalize a broad range of apparently innocent conduct”), we believe that the statute in question here does not intrude upon innocent conduct to the extent of outweighing the state’s interest.¹⁵ Where doubt exists as to a potential sexual partner’s age, abstention from intercourse is a readily available solution:

“The defendant in a statutory rape case does not lack the ability to comply with the law; he must simply abstain from sexual intercourse when there is even the remotest possibility that his partner is below the statutory age. Moreover, unlike the defendant who reasonably believes his wife to be dead, remarries, and is convicted of bigamy, the man who contemplates intercourse with a partner of indeterminate age can resolve doubts in favor of compliance with the law without sacrificing behavior that society considers desirable---- [T]he maximization of deterrence for socially undesirable behavior may sometimes require the deterrence of socially neutral conduct as well.”

Recent Cases, 78 Harv. L.Rev. 1257, 1258-59 (1965).

The state’s interest in protecting children would be significantly undermined if we were to find the statute unconstitutional. We have previously recognized that the state legislature’s interest in furthering its objective most effectively helps to justify a strict liability statute. In Ford v. State, 85 Md. 465, 473, 37 A. 172, 173 (1897), we considered a former Maryland statute that made it a crime for one to possess “any book, list, slip or record of the numbers drawn in any lottery.” The statute provided for a fine of $1000 and/or up to one year of imprisonment. . The defendant argued that his conviction under the statute was unconstitutional because it did not allow him to present evidence showing that he had no knowledge that the papers in his possession were subject to the statute. We acknowledged that the papers, which we deemed “utterly unintelligible to any one not learned in the business,” Ford, 85 Md. at 477, 37 A. at 174, may not give notice to an innocent person of their illegal character, but we rejected the constitutional argument, concluding that the statute’s lack of a mens rea requirement was consistent with the Due Process Clause. We noted the state’s strong interest in thwarting the growth of the (then) illegal lottery business, and observed that “the statute has made the mere possession of the articles a crime because that is the most effectual way to break up the lottery business.” Ford, 85 Md. at 480, 37 A. at 175.

Similarly, the statutory rape statute effectively furthers a significant state interest. Aside from deterring sexual activity with children, by disallowing a mistake-of-age defense, the state avoids the risk that the inevitably emotional statutory rape trial will focus unjustifiably on the child’s appearance and level of maturity. “The obvious problem is that because early adolescents tend to grow at a rapid rate, by the time of trial a relatively undeveloped young girl or boy may have transformed into a young woman or man.” Cash, 351 N.W.2d at 828. Defendant’s assertion that he had made a reasonable mistake regarding the victim’s age is best considered as a mitigating circumstance at sentencing, which is what occurred in this case. See id.

D.

Appellant contends that § 463(a)(3) unconstitutionally creates an irrebuttable presumption that the victim’s mental state is irrelevant and that children under age 14 are incapable of consenting to sexual intercourse. We disagree.

First, we note that § 463(a)(3) simply prohibits sexual intercourse with one who is “under 14 years of age” when the person “performing the act is at least four years older than the victim.” Intent is simply not relevant to the charges. As the Iowa Supreme Court has concluded, “[h]ere we are not dealing with a presumption (or, more correctly, inference) at all. The statute is not concerned with presumptions or inferences. Rather it flatly prohibits the act defendant committed.” State v. Drake, 219 N.W.2d 492, 496 (Iowa 1974). See also State v. Hill, 170 N.J.Super. 485, 406 A.2d 1334, 1336 (N.J.Super.Ct.App.Div.1979)(“Presumption does not play any part in the violation of the statute.”). For the reasons stated above, the legislature may constitutionally prohibit sexual intercourse with a child below age 14 in order to protect the child’s physical and mental health and welfare. Since Maryland’s statutory rape statute directly prohibits vaginal intercourse with children below age 14 without regard to the minor’s ability to consent, it does not utilize any presumption that unconstitutionally burdens the criminal defendant.

Second and relatedly, under the statutory scheme of § 463(a)(3), age is not used to determine any element of the crime beyond the age itself. Thus, it is distinguishable from the Supreme Court’s decisions in LaFleur, Vlandis, and Stanley, as well as our decision in Mahoney. See Part II, swpra. In each of these cases, the provision held to violate due process took one fact and used it to justify a separate, factual conclusion, and, moreover, the fact presumed bore little or no relation to the objective of the law. In LaFleur, the public school policies took the fact of pregnancy and presumed that pregnancy made women physically unfit for classroom teaching. 414 U.S. at 647, 94 S.Ct. at 799, 39 L.Ed.2d at 64. The statute in question in Vlandis presumed that one who applied to a state school while living out-of-state was a non-resident regardless of facts suggesting otherwise, for as long as that individual remained a student. 412 U.S. at 449-50, 93 S.Ct. at 2235, 37 L.Ed.2d at 70. In Stanley, the statute conclusively presumed that all unmarried fathers are unqualified to raise their children. 405 U.S. at 650, 92 S.Ct. at 1214, 31 L.Ed.2d at 558. In Mahoney, the regulation invalidated specifically stated that presence of drugs in saliva or urine “shall be conclusive evidence” that the trainer had knowledge or was careless in allowing the horse to be drugged. 187 Md. at 83-84, 48 A.2d at 602.

In sharp contrast, § 463(a)(3) does not presume that anyone engaging in sexual intercourse with one under the age of 14 intended to do so, or that the victim is incapable of consenting; rather, the statute protects children from sexual conduct, regardless of whether the defendant intended to engage in the prohibited conduct with one under age 14 and whether the victim purported to consent. Unlike the statutes stricken down as unconstitutional, § 463(a)(3) does not take as one fact (pregnancy, an application for admission when living out-of-state, the unmarried father, or a positive drug test) and use that fact to arrive at a separate conclusion (fitness for classroom teaching, resident status, fitness for raising children, or the administering of drugs to horses with knowledge or carelessness). In other words, § 463(a)(3) does not require intent to engage in intercourse with one under 14 years old and then presume that intent simply because of the victim’s age; nor does it prohibit sexual intercourse without consent and then presume that children under age 14 are incapable of consenting. As a result, the irrebuttable presumption doctrine does not apply.

Finally, even if we were to agree that the statute creates an irrebuttable presumption that children age 13 and under are incapable of making an informed decision about whether to consent to sexual intercourse, the nexus between the presumption and the state’s interest in protecting children is sufficient enough to ameliorate any due process concerns.¹⁶ See Rita Eidson, The Constitutionality of Statutory Rape Laws, 27 U.C.L.A. L.Rev. 757, 811 (1980) (concluding that the irrebuttable presumption doctrine may apply only to statutory rape laws “with a high age of consent,” i.e., age 16). Basing one’s ability to consent to sexual intercourse on the individual’s meeting the age of 14 is not “wholly unrelated” to the state’s objective of protecting minor children, and it is hard to imagine when the presumption would not “operate to effectuate the State’s asserted interest” in protecting children from sexual abuse, exploitation and early pregnancy. Vlandis, 412 U.S. at 449, 93 S.Ct. at 2235, 37 L.Ed.2d at 69-70. Therefore, even if the irrebuttable presumption doctrine would apply, we could not conclude that § 463(a)(3) is “so arbitrary as to constitute a denial of due process of law.” Vlandis, 412 U.S. at 450, 93 S.Ct. at 2235, 37 L.Ed.2d at 70.

IV.

In sum, we find no constitutional barriers to placing on individuals engaging in sexual intercourse the risk that their sexual partner is below age 14, regardless of the reasonableness of their belief otherwise. The state has an unparalleled interest in protecting children from the potentially devastating effects of sexual abuse and exploitation, and the statutory rape statute furthers that interest. Though it is not without limits, establishing the age at which the statutory rape law applies is a task for the legislature, not the courts.¹⁷ If the legislature so decides, it can amend § 463(a)(3) to allow for a mistake-of-age defense or it may lower the age at which the statute applies the strict liability standard.

JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.

ELDRIDGE, J., concurs in the result only.

BELL, C.J. and CATHELL, J. dissent.

1 . Unless otherwise indicated, hereinafter all statutory references are to Maryland Code (1957, 1996 Repl.Vol.), Article 27.

2 . The Fourteenth Amendment of the United States Constitution, § 1, provides that "[n]o state shall ... deprive any person of life, liberty, or property, without due process of law....”

3 . The Maryland Declaration of Rights, Article 20, states: "That the trial of facts, where they arise, is one of the greatest securities of the lives, liberties and estate of the People.” Article 24 declares "[t]hat no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.” The phrase "Law of the Land” has been held to be equivalent to "due process of law,” as used in the Fourteenth Amendment. Matter of Easton, Incompetent, 214 Md. 176, 187-89, 133 A.2d 441, 447-48 (1957). United States Supreme Court cases on the subject therefore are "practically direct authorit(yl” for the meaning of the Maryland provision. Northampton Corp. v. Wash. S.S. Comm’n, 278 Md. 677, 686, 366 A.2d 377, 382 (1976). We therefore address both provisions together.

4 . Resolving a conflict among the circuits as to the mental element necessary to bring a conspiracy charge, the Supreme Court explicitly rejected Judge Learned Hand’s "traffic light” analogy, which declared that " 'one cannot be guilty of conspiring to run past [a traffic light of whose existence one is ignorant], for one cannot agree to run past a light unless one supposes that there is a light to run past.’ ” United States v. Feola, 420 U.S. 671, 689, 95 S.Ct. 1255, 1266, 43 L.Ed.2d 541, 555 (1975)(quoting United States v. Crimmins, 123 F.2d 271, 273 (2d Cir.1941)).

5 . The following cases specifically reject the contention that constitutional due process requires admitting evidence as to a defendant’s reasonable mistake of age in a statutory rape prosecution: State v. Stokely, 842 S.W.2d 77 (Mo.1992)(en banc); United States v. Ransom, 942 F.2d 775 (10th Cir.1991), cert. denied, 502 U.S. 1042, 112 S.Ct. 897, 116 L.Ed.2d 799 (1992); State v. Campbell, 239 Neb. 14, 473 N.W.2d 420 (Neb. 1991); United States v. Brooks, 841 F.2d 268 (9th Cir.1988), cert. denied, 487 U.S. 1227, 108 S.Ct. 2887, 101 L.Ed.2d 922 (1988); People v. Cash, 419 Mich. 230, 351 N.W.2d 822 (Mich.1984); Commonwealth v. Miller, 385 Mass. 521, 432 N.E.2d 463 (Mass.1982); State v. Tague, 310 N.W.2d 209 (Iowa 1981); Goodrow v. Perrin, 119 N.H. 483, 403 A.2d 864 (N.H.1979); Nelson v. Moriarty, 484 F.2d 1034 (1st Cir.1973).

6 . The Alaska Supreme Court has interpreted its state constitution more expansively than the federal constitution. State v. Rice, 626 P.2d 104, 112 (Alaska 1981)(discussing the court's "concomitant duty to develop constitutional rights under the Alaska Constitution”). As one commentator has observed, this interpretation of the state constitution "enables Alaska to interpret its own due process clause to require a mens rea element for second degree sexual abuse [statutory rape], notwithstanding the uncertainty concerning the demands of the United States Constitution.” Benjamin L. Reiss, Alaska’s Mens Rea Requirements for Statutory Rape, 9:2 Alaska L.Rev. 377, 389 (1992)(footnotes omitted).

7 . We note that in addition to upholding the strict liability statutes cited above, the Supreme Court in Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), in dicta, apparently accepted the validity of strict liability statutory rape laws when it observed that, as the common law has developed, "[ejxceptions [to the requirement of a guilty mind] came to include sex offenses, such as rape, in which the victim’s actual age was determinative despite defendant's reasonable belief that the girl had reached age of consent.” 342 U.S. at 251 n. 8, 72 S.Ct. at 244 n. 8, 96 L.Ed. at 294 n. 8. See also United States v. X-Citement Video, Inc., 513 U.S. 64, 72 n. 2, 115 S.Ct. 464, 469 n. 2, 130 L.Ed.2d 372, 381 n. 2 (1994)(quoting footnote 8 from Morissette).

8 . In this decision, we do not reach the issue of whether, had the trial judge in this case sentenced Owens to the maximum of 20 years of imprisonment, such a sentence would violate Owens’ due process or Eighth Amendment rights.

9 . Indeed, even though a violation constituted a felony with the possible sentence of 10 years of incarceration, in his dissent, Justice Stevens, joined by Justice Blackmun, disagreed with the majority’s interpretation of the statute as requiring a mens rea component, arguing that the National Firearms Act was a public welfare statute imposing strict liability. Staples v. United States, 511 U.S. 600, 630, 114 S.Ct. 1793, 1810, 128 L.Ed.2d 608, 632 (1994)(Stevens, J., dissenting).

10 . See, e.g., § 553 (prohibiting sodomy and authorizing sentences of up to ten years upon conviction); § 554 (prohibiting unnatural or perverted sexual practices and. authorizing a potential sentence of ten years upon conviction).

11 . Because we find that the interest served by the statutory rape statute—the protection of children—is a compelling interest, we need not decide whether this or any other strict liability statute could be upheld if the state interest is less than compelling.

12 . We observed in Garnett that the traditional view of statutory rape as a strict liability crime is that such laws are designed to "protect young persons from the dangers of sexual exploitation by adults, loss of chastity, physical injury, and, in the case of girls, pregnancy.” 332 Md. at 587, 632 A.2d at 805. This observation is consistent with that of other courts which have considered the state's interest in holding those who engage in sexual conduct with minors strictly liable. See, e.g., Jones v. State, 640 So.2d 1084, 1086 (Fla.1994)(“ ‘[A]ny type of sexual conduct involving a child constitutes an intrusion upon the rights of that child, whether or not the child consents ... [Sjociety has a compelling interest in intervening to stop such misconduct.’ (quoting Schmitt v. State, 590 So.2d 404, 410-11 (Fla.1991), cert. denied, 503 U.S. 964, 112 S.Ct. 1572, 118 L.Ed.2d 216 (1992)); Ransom, 942 F.2d at 777 ("[The statutory rape law] protects children from sexual abuse by placing the risk of mistake as to a child’s age on an older, more mature person who chooses to engage in sexual activity with one who may be young enough to fall within the statute's purview.”) (Citation omitted); Commonwealth v. Robinson, 497 Pa. 49, 438 A.2d 964, 966 (Pa.1981), appeal dismissed, 457 U.S. 1101, 102 S.Ct. 2898, 73 L.Ed.2d 1310 (1982)("The primary consideration in prohibiting unlawful, consensual intercourse with an underage female has been traditionally attributed to the legislative desire to protect those who are too unsophisticated to protect themselves.”); People v. Gonzales, 148 Misc.2d 973, 561 N.Y.S.2d 358, 361-62 (Co.Ct.1990)("[I]t is proper for the state to consider the prospects of transmission of venereal disease, especially the HIV virus, trauma and permanent damage which may be caused to physical structures such as the emus, and the exploitation and sexual abuse of our youth.”).

13 . See, e.g., D.C.Code Ann. § 22-1002 (1996); Ga.Code Ann. § 16-6-18 (1996); Idaho Code § 18-6603 (1987); Ill.Ann.Stat., chapter 720 ¶ 5/11— 8 (Smith-Hurd 1993); Mass. Gen. Laws Ann. ch. 272, § 18 (West 1990); Minn.Stat. Ann. § 609.34 (West 1987); Miss.Code Ann. § 97-29-1 (1994); N.C. Gen.Stat. § 14-184 (1993); S.C.Code Ann. §§ 16-15-60 (Law.Co-op.1985); Utah Code Ann. § 76-7-104 (1995); Va.Code Ann. § 18.2-344 (Michie 1996); W. Va.Code § 61-8-3 (1992).

14 . The Maryland legislature has enacted other laws to further the policy goals of Art. 27, § 463. See § 416B (prohibiting the selling or the offering to sell to minors sexually explicit materials); § 416C (criminalizing the act of exhibiting sexually explicit motion pictures to minors).

15 . Maryland's statutory rape law is less likely than a number of other state statutes to reach noncriminal sexual conduct since the victim in Maryland must be under 14 years of age, while other states have adopted older ages of consent. These other statutes have withstood constitutional challenges despite their greater potential to affect noncriminal sexual conduct. See, e.g., State v. Barlow, 160 Vt. 527, 630 A.2d 1299 (Vt.1993)(under age 16); Campbell, 239 Neb. 14, 473 N.W.2d 420 (under age 16); Brooks, 841 F.2d 268 (under age 16); Miller, 385 Mass. 521, 432 N.E.2d 463 (under age 16); Goodrow, 119 N.H. 483, 403 A.2d 864 (under age 16); State v. Drake, 219 N.W.2d 492 (Iowa 1974) (male over 25 and female under 17); Nelson, 484 F.2d 1034 (under age 16).

16 . New York's statutory rape law explicitly incorporates an irrebuttable presumption, which was nevertheless upheld in People v. Gonzales, supra. The statute declared that it "is an element ... that the sexual act was committed without consent of the victim,” and it further provided that "[a] person is deemed incapable of consent when he is: (a) less than seventeen years old.” 561 N.Y.S.2d at 359-60. The defendant argued that the irrebuttable presumption that children under age 17 cannot consent “unconstitutionally presumes an element of the crime which the People would otherwise be under an obligation to prove by proof beyond a reasonable doubt.” 561 N.Y.S.2d at 360. The court determined that the presumption created by the statute "is equivalent to a substantive rule of law expressed in terms of rules of evidence.... Lack of true consent of those under seventeen is not an element of the substantive crime.” 561 N.Y.S.2d at 362 (citations omitted).

17 . See Robinson, 438 A.2d at 967 n. 5 (concluding that, although the Model Penal Code allows a mistake-of-age defense if the victim is ten or older, "certainly the legislature may, consistently with considerations of due process, determine as a matter of public policy that the still tender age of fourteen is appropriate.”); In re Interest of J.D.G., 498 S.W.2d 786, 792 (Mo.1973) ("The selection of the female age factor in a statutory rape statute is basically a legislative function.”); Drake, 219 N.W.2d at 495 (same).