State v. Martinez , 408 Utah Adv. Rep. 20 ( 2000 )

OPINION

BILLINGS, Judge:

{1 Michael Martinez (Defendant) appeals his conviction for unlawful sexual activity with a minor in violation of Utah Code Ann. § 76-5-401, arguing the trial court erred by ruling that unlawful sexual activity with a minor is a strict Hability crime. We affirm.

BACKGROUND

1 2 Nineteen-year-old Defendant had sexual intercourse with a fifteen-year-old girl. Defendant was charged with one count of rape, in violation of Utah Code Ann. § 76-5-402 (1999), and in the alternative, with one count of unlawful sexual activity with a minor, in violation of Utah Code Ann. § 76-5-401(2)(a) (1999)¹ Defendant filed a motion in limine seeking a determination that unlaw-fual sexual activity with a minor is not a strict liability crime and requesting permission to introduce evidence that he was reasonably mistaken as to the age of the victim.

13 The trial court denied the motion, ruling unlawful sexual activity with a minor is a strict liability crime, and Defendant was not entitled to produce evidence that he mistook the victim's age. Defendant subsequently entered a conditional guilty plea to unlawful sexual activity with a minor. Defendant now appeals the trial court's ruling that unlawful sexual activity with a child is a strict liability crime.

ISSUES AND STANDARD OF REVIEW

$4 Whether unlawful sexual activity with a minor is a strict liability crime is a question of statutory interpretation which "we review for correctness and give no deference to the conclusions of the trial court." Adkins v. Uncle Bart's, Inc., 2000 UT 14, ¶ 11, 1 P.3d 528; see also Platts v. Parents Helping Parents, 947 P.2d 658, 661 (Utah 1997) (stating that "matters of statutory construction are questions of law that are reviewed for correctness").

115 If we conclude that unlawful sexual activity with a minor imposes strict liability, we must determine whether eliminating a culpable mental state as to the victim's age violates Defendant's federal due process rights. "A challenge to the constitutionality of a statute presents a question of law, which we review for correctness, according no deference to the trial court's ruling." Provo City v. Whatcott, 2000 UT App 86, ¶ 5, 1 P.3d 1113.

ANALYSIS

Strict Liability Under Section 76-5-401

16 Defendant argues the trial court erred in ruling that section 76-5-401 imposes strict liability. Defendant asserts the State must prove that he had the necessary erimi-nal intent before it can convict him of committing a crime. Because section 76-5-401 ² does not specify the culpable mental state required to convict a defendant of unlawfal sexual activity with a minor, section 76-2-102 supplies the required mental state. Under section 76-2-102, a crime requires a mental state of at least recklessness unless this crime is one of strict liability. See Utah Code Ann. § 76-2-102 (1999). A crime is one of strict liability when "the statute defining the offense clearly indicates a legislative purpose to impose criminal responsibility for commission of the conduct prohibited by the statute without requiring proof of any culpable mental state." Id. Thus, we must determine whether Utah's eriminal code clearly indicates a legislative purpose to impose strict lability for unlawful sexual activity with a minor.

17 "It is 'a fundamental rule of statutory interpretation ... that a statute "be looked at in its entirety and in accordance with the purpose which was sought to be accomplished."'" W.C.P. v. State, 1999 UT App 35, ¶ 8, 974 P.2d 302, cert. denied, 984 P.2d 1023 (Utah 1999) (citations omitted). We conclude that the legislature intended a violation of section 76-5-401 to be a strict liability crime.

T8 The plain language of Utah's criminal code explicitly precludes the defense of mistake of fact regarding the victim's age in crimes involving sexual acts against children:

It is not a defense to the crime of unlawful sexual activity with a minor, a violation of Section 76-5-401, ... that the actor mistakenly believed the victim to be 16 years of age or older at the time of the alleged offense or was unaware of the vietim's true age.

Utah Code Ann. § 76-2-804.5(2) (1999). The clear language of this section supports the conclusion that the legislature intended to render a defendant's state of mind regarding the age of the victim irrelevant. Thus, the element of the victim's age under section 76-5-401 is one of strict Hability.³

19 Defendant acknowledges he may not raise mistake of age as an affirmative defense, but argues a mens rea is nonetheless an element of unlawful sexual activity with a minor that the State must prove. Defendant first argues that the burden of proof differs between a mens rea requirement and an affirmative defense. Contrary to Defendant's assertion, "ilt is fundamental that the State carries the burden of proving beyond a reasonable doubt each element of an offense, including the absence of an affirmative defense once the defense is put into issue." State v. Hill, 727 P.2d 221, 222 (Utah 1986); see also Utah Code Ann. §§ 76-1-501(1), 502(2)(b) (1999).

'[ 10 Applying this principle to section 76-5-401, it is clear that the burden of proving the mens rea for unlawful sexual activity with a minor is precisely the same as the burden of disproving the affirmative defense of mistake of age. That is, proof that Defendant knew or was aware of the risk that his partner was under sixteen (Defendant's proposed mens rea requirement) is no more or less than proof that Defendant did not mistakenly believe his partner was sixteen or was unaware of the risk that his partner was under sixteen. Thus, to require the State to prove a mens rea is to require the State to disprove mistake of fact, contrary to section 76-2-304.5(2).

11 Defendant further argues that mens rea differs from an affirmative defense in that the former is based on objective criteria whereas the latter is based on subjective criteria. Defendant quotes our supreme court's opinion in State v. Elton, 680 P.2d 727 (Utah 1984):

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.

Id. at 730 (emphasis added)*⁴ Defendant argues that Elton and section 76-2-304.5 establish a sort of evidentiary rule permitting the State to present objective evidence bearing on the mens rea, such as the victim's appearance, demeanor, and statements to Defendant, but prohibiting Defendant from presenting evidence of his contemporaneous subjective opinion of the victim's age. We disagree.

112 Defendant misunderstands the Elton court's reference to subjective and objective criteria. That comment does not refer to the type of evidence that the parties may present, le., objective facts versus subjective opinions. Rather, it refers to whether the defendant's mental state is to be judged by what the defendant was actually aware of-a subjective test-or what the defendant ought to have been aware of-an objective test.⁵ Because the Elton court held that the defendant could be convicted for criminal negligence, the mens rea could be based on objective criteria: what the defendant ought to have been aware of. See id. at 729-30. Neither Elton nor section 76-2-304.5 establishes any evidentiary rule, by implication or otherwise.⁶

€{13 Defendant finally argues that the Utah Supreme Court has previously held that section 76-5-401 does not impose strict liability. See State v. Elton, 680 P.2d 727, 729 (Utah 1984). Although the Elton court stated that " § 76-5-401 ... does not clearly indicate 'a legislative purpose to impose strict liability," id.,⁷ it recognized that its construction of section 76-5-401 "may have only limited significance, as the Legislature has amended the Utah Criminal Code in 1988 to disallow mistake of fact as to age as a defense to the crime of unlawful sexual [activity with a minor]." Elton, 680 P.2d at 732 n. 8. Thus, the Elton court construed a criminal code substantially different from that under which Defendant was convicted. Accord W.C.P., 1999 UT App 35 at ¶ 10 n. 2, 974 P.2d 302.⁸

T14 In concluding section 76-2-304.5(2) imposes strict liability, we note that we have previously held that nearly identical parallel language in section 76-2-304.5(1) indicates a legislative intent to impose strict lability for sexual acts against children under fourteen.⁹ See W.C.P., 1999 UT App 35 at ¶¶ 6-10, 974 P.2d 302. We observed that by "expressly removing] mistake as to age as a defense," "the criminal code's treatment of this issue evinces a clear legislative intent to impose strict lability." Id. at ¶ 10. Notably, no such provision precludes a mistake of fact defense when the alleged vietim is a minor of sixteen or seventeen.

€15 Finally, we note that a majority of jurisdictions impose strict liability for sexual offenses against fourteen- and fifteen-year olds under statutes similar to Utah's. See Colin 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).¹⁰

T16 We conclude that section 76-5-401 imposes strict Hability on a defendant who engages in sexual activity with a fourteen- or fifteen-year-old victim. - The - statutory scheme in its entirety reflects a legislative intent to protect minors from sexual exploitation by older individuals Thus, the State need not prove that Defendant had a mens rea of at least recklessness regarding the age of the victim. Rather, the State's burden is met by proving that defendant had sex with the victim and that the victim was fourteen or fifteen years old at the time.

Constitutionality of Section 76-5-401

117 Defendant next argues that if section 76-5-401 imposes strict Hability, his constitutional due process rights have been violated by not requiring a mens rea as to the victim's age as an element of the erime. We disagree.

18 We are persuaded by the reasoning of a decision from the United States Court of Appeals for the Tenth Circuit which held that the absence of a mens rea in a federal statutory rape statute did not render the statute unconstitutional. See United States v. Ransom, 942 F.2d 775, 776-77 (10th Cir.1991).

T19 In Ransom, the defendant was charged with having sexual intercourse with a girl under the age of twelve, in violation of 18 U.S.C. § 224l(c). See id. at 776. The defendant moved the trial court to allow him to raise the defense of mistake of fact regarding the victim's age. See id. After the court denied his motion, the defendant entered a conditional guilty plea. See id. He appealed both the denial of his pre-trial motion and his conviction, arguing that he was deprived of his federal due process rights because he was not allowed to assert the affirmative defense of reasonable mistake of fact regarding the victim's age. See id.

120 The court in Ransom reasoned that "Itlhe Supreme Court has recognized that the legislature's authority to define an offense includes the power 'to exclude elements of knowledge and diligence from its definition'" Id. (quoting Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 242, 2 L.Ed.2d 228 (1957)). Therefore,

[i]n order to show that the exercise of [the legislature's] power is inconsistent with due process, appellant must demonstrate that the practice adopted by the legislature "offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." That is not the case here. The history of the offense of statutory rape indicates that from ancient times the law has afforded special protection to those deemed too young to understand the consequences of their actions.

Ransom, 942 F.2d at 777 (quoting Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934)).

121 Defendant concedes that states have historically imposed strict eriminal liability for sexual activity with children, but takes issue with the age at which our legislature has drawn the line for imposing strict liability. Defendant insists there is a fundamental distinction between children thirteen years old and children fourteen years old for constitutional purposes. Although imposition of strict Hability may at some point run afoul of the Constitution, we cannot say, as Defendant argues, that Utah's statutory scheme for protecting minors from sexual encounters lacks any acceptable rationale for imposing strict liability.

122 Utah's criminal laws protecting minors from sexual encounters divides minors into three age groups and afford greater protection for progressively younger minors in three ways. First, the class of persons subject to felony prosecution expands as the age of the minor decreases.¹¹ Second, sexual activity with the youngest group is penalized most severely.¹² Third, mistake as to the age of the minor is a defense if the minor is sixteen or seventeen, but not if the minor is under sixteen. See Utah Code Ann. § 76-2-304.5(1), (2) (1999).

123 This statutory scheme reflects our legislature's careful consideration of the level of protection required for minors of different ages. We simply cannot say that our legislature's determination to preclude the mistake of age defense for sexual activity with a minor fourteen or fifteen is so arbitrary as to run afoul of the Constitution. Like the statute at issue in Ransom, section 76-5-401 offends no deeply-rooted and fundamental tradition of due process. Children have historically received special protection from sexual contact with adults. See Morissette v. United States, 342 U.S. 246, 251 n. 8, 72 S.Ct. 240, 244, 96 L.Ed. 288 (1952) (recognizing that statutory rape has historically not required mens rea regarding element of vie-tim's age); see also Colin Campbell, Annotation, Mistake or Lack of Information as to Victim's Age as Defense to Statutory Rape, 46 A.L.R.5th 499 (1997) (stating that "[p]rior to 1964, it was the universally accepted rule in the United States that a defendant's mistaken belief as to the age of a victim was not a defense to a charge of statutory rape").

124 To satisfy substantive due process, a statute must rationally further a legitimate governmental interest. See Ransom, 942 F.2d at 777. The Ransom court concluded:

the statute rationally furthers a legitimate governmental interest. It 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.

Id. at TT7 (citations omitted). Our state legislature likewise has a legitimate interest in protecting the health and safety of our children. We therefore conclude that section 76-5-401 does not violate Defendant's constitutional due process rights.

CONCLUSION

"I 25 We conclude section 76-5-401 imposes strict liability for sexual activity with a fifteen-year old. We also conclude Defendant's federal due process rights are not violated by imposing strict liability under section 76-5-401. We therefore affirm Defendant's conviction.

26 I CONCUR: PAMELA T. GREENWOOD, Presiding Judge.

1 . Under the facts of the present case, unlawful sexual activity with a minor is a lesser included offense to rape, the sole distinction being whether the victim consented. Compare Utah Code Ann. § 76-5-402 (1999) (rape statute including lack of consent as an element) with id. § 76-5-401(2)(a) (unlawful sexual activity with minor statute including no such requirement).

2 . Section 76-5-401 states in relevant part:

(1) For purposes of this section "minor" is a person who is 14 years of age or older, but younger than 16 years of age, at the time the sexual activity described in this section occurred.

(2) A person commits unlawful sexual activity with a minor if, under circumstances not amounting to rape, in violation of Section 76-5-402, object rape, in violation of Section 76-5-402.2, forcible sodomy, in violation of Section 76-5-403, or aggravated sexual assault, in violation of Section 76-5-405, the actor:

(a) has sexual intercourse with the minor

(3) A violation of Subsection (2) is a third degree felony unless the defendant establishes by a preponderance of the evidence the mitigating factor that the defendant is less than four years older than the minor at the time the sexual activity occurred, in which case it is a class B misdemeanor.

Two days after Defendant committed the crime, an amendment to subsection three became effective, making a violation of section 76-5-401 a third degree felony if the actor was four or more years older than the victim at the time of the activity. - Previously, section 76-5-401 was a third degree felony if the actor was three or more years older than the victim. Because this change is irrelevant to our analysis of whether section 76-5-401 imposes strict liability, we cite to the most recent version of the statute for convenience.

3 . Our able colleague in dissent chooses to make a thorough and persuasive argument for why we should determine the element of the victim's age is not one of strict liability. We do not feel free to do so. It is our view that the plain statutory language in our criminal code, see Utah Code Ann. § 76-2-304.5(2) (1999), precedent from this court, see W.C.P. v. State, 1999 UT App 35, ¶¶ 6-10, 974 P.2d 302, and dicta from our supreme court, see State v. Elton, 680 P.2d 727, 732 n. 8 (Utah 1984), mandate this result.

4 . The Elton court seemed to be struggling with a perceived inconsistency between imposing liability for criminal negligence and permitting an affirmative defense of mistake of fact. See Elton, 680 P.2d at 730. As we have shown, the inconsistency lies instead where the affirmative defense is prohibited but the mens rea is required.

5 , Liability for criminal negligence attaches where the defendant "ought to be aware of a substantial and unjustifiable risk," Utah Code Ann. § 76-2-103(4) (1999), and thus may be based on objective criteria. By contrast, liability for criminal recklessness, knowledge, and intent require actual knowledge or awareness, see id. §§ 76-2-103(1) to -103(3), and thus turn on the defendant's subjective mental state; see State v. Singer, 815 P.2d 1303, 1307-09 (Utah Ct.App.1991) (explaining difference between objective standard of criminal negligence and subjective standard of recklessness).

6 . Indeed, such a rule would be anathema to our system of justice. If proof of an element of a crime is required, then the defense must be permitted to meet the State's evidence with any relevant admissible evidence. Defendant's testimony as to his subjective opinions would clearly be relevant and admissible. The only exception is where strict liability eliminates the mens rea requirement as to an element of a crime, rendering evidence bearing on Defendant's mental state irrelevant to that element.

7 . - At the time of the Elton decision, Section 76-5-401 stated that "(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." Utah Code Ann. § 76-5-401 (1953) (amended 1998).

8 . We also note that our legislature has relaxed the standard for determining whether a crime should be interpreted as one of strict liability. Previously, a crime was considered strict liability "only when a statute defining the offense clearly indicate([d] a legislative purpose to impose strict liability for the conduct by use of the phrase 'strict liability' or other terms of similar import." Utah Code Ann. § 76-2-102 (1982) (emphasis added). However, this statute has since been amended, and now requires only that "the statute defining the offense clearly indicates a legislative purpose to impose criminal responsibility for commission of the conduct prohibited by the statute without requiring proof of any culpable mental state." Utah Code Amn. § 76-2-102 (1999) (amended 1983).

9 . Section 76-2-304.5(1) states in relevant part that

[it is not a defense to the crime of child kidnaping, ... rape of a child, ... object rape of a child, ... sodomy upon a child, ... sexual abuse of a child, ... aggravated sexual abuse of a child, ... or an attempt to commit any of those offenses, that the actor mistakenly believed the victim to be 14 years of age or older at the time of the alleged offense or was unaware of the victim's true age.

Utah Code Ann. § 76-2-304.5(1) (1999).

10 . Jurisdictions imposing strict liability include Alabama, Arizona, Colorado, Connecticut, Delaware, Florida, Hawaii, Idaho, Illinois, Louisiana, Maryland, Massachusetts, Michigan, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, South Dakota, Texas, Virginia, and Wisconsin. See Colin Campbell, Annotation, Mistake or Lack of Information as to Victim's Age as Defense to Statutory Rape, 46 A.L.R.5th 499, 510-13.

11 . Consensual sexual activity with a minor sixteen or seventeen years old is a felony only if the older participant is at least ten years older than the minor. See Utah Code Ann. § 76-5-401.2 (1999). Consensual sexual activity with a minor fourteen or fifteen years old becomes a felony if the older participant is only four years older than the minor. See id. § 76-5-401.. Felony liability for sexual activity with a child under fourteen does not depend on the age of the older participant. See id. § 76-5-402.1.

12 . - Sexual activity with a minor under fourteen is a first degree felony. See Utah Code Ann. § 76-5-402.1 (1999). Sexual activity with an older minor is a third degree felony or misdemeanor, depending on the age difference of the participants. See id. §§ 76-5-401(3), 76-5-401.2(3), 76-17-104.