DocketNumber： 97-110-C.A.
Judges： Weisberger, Lederberg, Bourcier, Flanders, Goldberg
Filed Date： 8/4/1998
Status： Precedential
Modified Date： 10/26/2024
OPINION
The principal issue presented by this ease is whether a reasonable mistake of fact concerning a complainant’s age may be asserted as a defense to a charge of statutory-rape. For the reasons articulated in this opinion, we hold that with respect to the age requirement first-degree child-molestation sexual assault is a strict-liability offense. Consequently a defendant charged with this offense may not introduce evidence that he or she was mistaken regarding the child’s age, nor is a defendant entitled to a jury instruction regarding the same. A recitation of the facts is in order.
Facts
The defendant, Alejandro Yanez (Yanez), was eighteen-years-old when he engaged in consensual sexual intercourse with Allison (a fictitious name), the victim in this case, who was thirteen-years-old at the time. The two were first introduced to each other, albeit ever so briefly, in August 1992, nearly a year before this incident. Allison testified that she was attending a Portuguese festival with a girlfriend when she saw her aunt’s boyfriend, Victor Yanez (Victor), defendant’s brother. According to Allison, who at that time was only twelve-years-old, Victor introduced her to Yanez. For the next eleven months Allison and Yanez had virtually no contact with each other except for the obligatory “Hello” in passing. Then one day in mid-July 1993, while Allison was walking to the local park to meet friends, she saw Yanez cruise by in his white Trans Am convertible with the top down. She testified that she waved to Yanez, who proceeded to turn the Trans Am around and offer her a ride. Since the park was only across the street, Allison declined Yanez’s invitation, but when he persisted. Allison acceded. The two briefly talked during the quarter-mile trip. Yanez gave Allison his name and telephone number, and the two conversed again briefly that night on the telephone.
The next day Allison received a telephone message from either her mother or her sister that Yanez had called her and asked that she call him back. Allison returned Yanez’s tele
Following the conclusion of their first “date” Allison returned home quite late. After entering the house, Allison proceeded directly to the bathroom to shower whereupon she was subsequently confronted by her mother. While in the bathroom, Allison’s mother noticed her underwear on the floor and asked if she had engaged in sexual intercourse. Allison initially denied having had sexual intercourse that evening but later admitted the truth. Subsequently Allison’s mother contacted the police, whereupon Allison admitted that she had engaged in sexual intercourse but named as her partner a person called Derek. Allison later explained that she had lied about Yanez’s identity because she did not want her mother to know that she had engaged in sexual intercourse with Yanez. A subsequent police investigation revealed that Yanez admitted having had sexual intercourse with Allison but insisted that Allison had told him that she was sixteen-years-old. Allison denied having told Yanez that she was sixteen years of age and, in fact, testified that on the two or three occasions when Yanez had inquired about her age, she had responded that she was only thirteen.
Yanez was indicted on one count of first-degree child-molestation sexual assault in violation of G.L.1956 §§ 11-37-8.1 and 11-37-8.2, although the trial testimony would later reveal that this was not an isolated incident and that there were two more equally sordid, uncharged encounters.
“The defendant is accused that on a day and dates between July 14, 1993 and July 15, 1993, at West Warwick, Alejandro Ya-nez did engage in sexual penetration, to wit sexual intercourse, with [Allison], a person under 14 years of age, in violation of the laws of the State of Rhode Island. Now a person is guilty of first degree child molestation, sexual assault, if he or she engages in sexual penetration with a person 14 years of age or under. Sexual penetration includes sexual intercourse. By law, sexual intercourse is defined as the penetration of the vagina by the penis. There are two essential elements to first degree child molestation sexual assault. First, the defendant must engage in sexual intercourse with the alleged victim. And second, the victim is under the age of 14 years.
“Now under the terms of this law, the State need not prove that the act of sexual intercourse was committed against the wishes of the victim. Thus, in order for you to return a verdict of guilty, the State is required to prove, number one, that this defendant, Alejandro Yanez; two, on or about July 15, 1993, at West Warwick; three, did in fact engage in sexual intercourse with [Allison]; and four, that at the time, if you are satisfied he did engage in sexual intercourse with [Allison], at the time she was under the age of 14 years. The law also states when conduct is made criminal because the victim is a minor, and in Rhode Island [in the context of this case] that age being 14, it is no defense that the defendant was ignorant of or mistaken as to the victim’s age. And it matters not that his mistaken belief was reasonable.”
Following deliberations a Superior Court jury convicted Yanez of first-degree child-molestation sexual assault. The trial justice sentenced Yanez to the minimum twenty year sentence but suspended eighteen years of the sentence with probation. The trial justice also ordered that Yanez have no contact with Allison for twenty years and, as required by law, that Yanez register with the local police authorities as a convicted sex offender. Yanez was released on bail pending the outcome of this appeal.
We note that even though we do not agree with the account of the facts set forth by the dissent — and reiterate that we saw no evidence that Allison and Yanez were actually
I
Mistake of Fact Defense
The crime of statutory-rape was legislatively created in England during the thirteenth century in order to afford special protection to those society had deemed too young to appreciate the consequences of them actions. See Statute of Westminster I, 3 Edw. 1, c. 13 (1275); 1E. Coke, The Second Part of the Institute of the Laws of England 179 (1797). See also United States v. Ransom, 942 F.2d 775, 777 (10th Cir.1991); State v. Jordan, 528 A.2d 731, 732 n. 4 (R.I.1987). Thus English courts, which had generally recognized the mistake of fact defense in criminal prosecutions since 1638, did not begin to discuss this defense in the context of statutory-rape cases until the later half of the nineteenth century. See United States v. Brooks, 841 F.2d 268, 269 (9th Cir.1988). At that time, the mistake of fact defense was rejected by courts both in England and in the United States. Id.
Characterizing statutory-rape as a strict-liability offense remained the law in every American jurisdiction until 1964. See id. at 270 (observing California as the first state to recognize the mistake of fact defense judicially). But see People v. Olsen, 36 Cal.3d 638, 205 Cal.Rptr. 492, 685 P.2d 52, 59 (1984) (rejecting the mistake of fact defense in cases involving lewd and lascivious conduct with a minor). Athough some states have followed California’s lead — most through legislative enactments — the majority of courts that have considered this issue continue to reject the reasonable mistake of a victim’s age as a defense to statutory-rape and maintain their allegiance to the common law.
The courts in People v. Hernandez, 61 Cal.2d 529, 39 Cal.Rptr. 361, 393 P.2d 673 (1964), and State v. Elton, 680 P.2d 727 (Utah 1984), both expressly relied upon the text of their respective criminal codes, which required the concurrence of an act and a mental state in order to constitute a crime, as well as language in their codes that unless otherwise provided, ignorance or mistake of fact negates a culpable mental state. Furthermore the Elton court relied upon a provision of the Utah Criminal Code, which stated that an offense may be a striet-liability crime only if a statute expressly provides that a mental state is not required. See Elton, 680 P.2d at 728. Our General Laws are entirely devoid of any provisions similar to those relied upon in Hernandez and Elton; therefore, these cases are of no aid to Yanez.
The other two cases in which the mistake of fact defense was judicially recognized are State v. Guest, 583 P.2d 836 (Aaska 1978),
Unlike the circumstances in Guest and Perez in which the victims were fifteen, however, Allison was only thirteen years of age. Furthermore, our Legislature has drawn distinctions based upon the age of the victim. For example, § 11-37-8.2 provides a minimum penalty of twenty years in prison for the sexual penetration of a person fourteen years of age or younger, while § 11-37-7 prescribes a maximum penalty of five years in prison for the sexual penetration of a person over the age of fourteen but under the age of sixteen, provided that the accused is over the age of eighteen. Compare §. 11-37-8.2 with §§ 11-37-6 and 11-37-7. We therefore conclude that these two cases are also of no help to Yanez.
Notwithstanding this historical perspective Yanez argues that in light of this Court’s interpretation of the term “sexual penetration” (the first element of § 11-37-8.1) in cases involving digital penetration, see State v. Griffith, 660 A.2d 704 (R.I.1995), and our interpretation of the term “sexual contact” (the first element of § 11-37-4) in cases involving second-degree sexual assault, see State v. Tobin, 602 A.2d 528 (R.I.1992), we are constrained to imply a mens rea requirement with respect to the age requirement (the second element of § 11-37-8.1) in a charge of first-degree child-molestation sexual assault. We disagree.
A. Statutory Interpretation
“It is well established that the Legislature may, pursuant to its police powers, define criminal offenses without requiring proof of a specific criminal intent and so provide that the perpetrator proceed at his own peril regardless of his defense of ignorance or an honest mistake of fact.” People v. Cash, 419 Mich. 230, 351 N.W.2d 822, 826 (1984). See also Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 242, 2 L.Ed.2d 228, 231 (1957). As the final arbiter on questions of statutory interpretation, we have it as our purpose to establish and to effectuate the Legislature’s intent. See State v. Powers, 644 A.2d 828, 830 (R.I.1994). “[I]n the absence of an ambiguity, this [C]ourt must give the words of the statute ‘their literal and plain meaning.’ ” Id. Against this backdrop we examine our first-degree child-molestation sexual assault statute.
Section 11-37-8.1 provides that:
“[a] person is guilty of first degree child molestation sexual assault if he or she engages in sexual penetration with' a person fourteen (14) years of age or under.”
The term “sexual penetration” is defined in § 11-37-1(8) as follows:
“ ‘Sexual penetration’ — sexual intercourse, cunnilingus, fellatio, and anal intercourse, or any other intrusion, however slight, by any part of a person’s body or by any object into the genital or anal openings of another person’s body, but emission of semen is not required.”
Clearly the plain words and meaning of § 11-37-8.1 prohibit the sexual penetration of an underaged person and make no reference to the actor’s state of mind, knowledge, or belief. In our opinion this lack of a mens rea results not from negligent omission but from legislative design.
Yanez correctly asserts that this Court has previously declared the existence of an implied mens rea element with respect to the term “sexual contact” in cases of second-degree sexual assault, see State v. Tobin, 602 A.2d 528 (R.I.1992), and to some but not all acts of “sexual penetration” in cases of first-degree child-molestation sexual assault. See State v. Griffith, 660 A.2d 704 (R.I.1995).
For instance, in Bryant with respect to the count of the indictment charging the defendant with first-degree child-molestation sexual assault for engaging in the digital penetration of the victim, we declared that necessity required “an instruction concerning sexual arousal or gratification in order to preclude the possibility that a defendant could be convicted because of an innocent touching.” Bryant, 670 A.2d at 783. However, with respect to the count charging penile penetration, we held that this mens rea instruction was not necessary because purposeful penile penetration precludes a finding of innocent touching. Id. Likewise we have declined to imply such a mens rea element to cases that would be considered rape at common law, see id., as well as to cases involving cunnilingus or fellatio. See Girouard, 561 A.2d at 889. Thus in most but not all eases of statutory-sexual assault, and except in the most limited instances of child-molestation sexual assault, the “legislative focus is not dependent upon the question of whether the perpetrator at the time of the penetration was sufficiently aroused and gratified.” Bryant, 670 A.2d at 785 (Bourcier, J., concurring in part and dissenting in part).
However, this debate concerning penetration but not gratification should in no way suggest our willingness to imply an element of mens rea with respect to the child’s age. We decline to permit a defendant charged with the sexual penetration of a child fourteen years of age or younger to escape responsibility on the basis of the purported consent of the victim or a defendant’s mistaken, albeit reasonable, belief that the child was over the age of consent. Our position has both historical and legislative support.
The Rhode Island General Assembly has divided sexual offenses into two main categories^ — sexual assault and child-molestation sexual assault. An examination of the pertinent provisions reveals that the Legislature has carefully distinguished between the two, explicitly requiring a mens rea for sexual assaults that were either unknown at common law or for those acts of sexual abuse that did not involve sexual intercourse, anal intercourse, cunnilingus, or fellatio while electing to maintain the common law’s strict-liability for child-molestation sexual assault. For example, the Legislature has defined first-degree sexual assault in these words:
“A person is guilty of first degree sexual assault if he or she engages in sexual penetration with another person, and if any of the following circumstances exist:
“(1) The accused, not being the spouse, knows or has reason to know that the victim is mentally incapacitated, mentally disabled, or physically helpless.
“(4) The accused engages in the medical treatment or examination of the victim for the purpose of sexual arousal, gratification, or stimulation.” Section 11-37-2 (Emphases added.)
The definition of second-degree sexual assault contains similar language and also requires that the accused possess a mens rea.
It can be inferred from this statutory classification that the child-molestation sexual assault statutes’ silence with regard to a mens rea “is designed to subserve the state interest of protecting female children from the severe physical and psychological consequences of engaging in coitus before.attaining the age of consent in the statute.”
B. Due-Process Argument
Despite the Legislature’s design Yanez nonetheless continues to argue that § 11-37-8.1 contains an implicit element that the accused must have knowledge that the victim is fourteen years of age or younger. Yanez suggests that § 11-37-8.1 violates his due-process rights because he had neither the opportunity to learn Allison’s true age nor the opportunity to present a meaningful defense concerning his reasonable mistake. In support of this argument Yanez relies on Morissette v. United States, 342 U.S. 246, 252, 72 S.Ct. 240, 244, 96 L.Ed. 288, 294 (1952), in which the Supreme Court observed “that intent was so inherent in the idea of the offense that it required no statutory affirmation,” and on Griffith in which we relied on Morissette and declared that § 11-37-8.1 contains an implicit mens rea requirement that a defendant “act with the intent of sexual arousal or gratification” and that this statute “is not a strict liability offense.” 660 A.2d at 706.
Indeed Yanez correctly states that “[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.” Tobin, 602 A.2d at 534 (quoting Dennis v. United States, 341 U.S. 494, 500, 71 S.Ct. 857, 862, 95 L.Ed. 1137, 1147 (1951)). In Morissette the Supreme Court stated:
“The contention that any injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation be*767 tween some mental element and punishment for a harmful act is almost as instinctive as the child’s familiar exculpatory ‘But I didn’t mean to,’ and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution.” Morissette, 342 U.S. at 250-51, 72 S.Ct. at 243, 96 L.Ed. at 293-94.
Despite this well-recognized judicial principle, in order for Yanez to prove that the Legislature’s exercise of its power runs afoul of the protections guaranteed by the due-process clause, Yanez must demonstrate that this practice “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Ransom, 942 F.2d at 777 (quoting Snyder v. Massachusetts, 291 U.S. 97, 105, 54 5.Ct. 330, 332, 78 L.Ed. 674 (1934)). Yanez cannot satisfy this test.
Indeed in nearly the same breath that the Supreme Court proclaimed the “[unqualified acceptance” of the doctrine requiring a mens rea for eveiy crime, the Morissette Court also observed several exceptions to this rule, including “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.”
In addition we are of the opinion that Griffith is distinguishable from the case at bar. Prior to our opinion in Griffith we stated that in order to obtain a conviction for first-degree child-molestation sexual assault, the state must prove beyond a reasonable doubt only that (1) the accused engaged in the sexual penetration of the victim and (2) the victim was thirteen (now fourteen) years of age or younger. See Girouard, 561 A.2d at 889.
In Griffith, a ease involving digital penetration, as distinguished from sexual intercourse, we addressed the first element of first-degree child-molestation sexual assault codified in § 11-37-8.1, namely, that the accused must engage in the sexual penetration of the victim. 660 A.2d at 705. With respect to this first element we held that first-degree child-molestation sexual assault contained an implied mens rea requirement that the accused act for the purposes of sexual arousal or gratification. See id. at 706. We further stated that “first-degree child-molestation sexual assault, which carries a minimum twenty-year sentence, is not a strict liability offense.” Id. Yanez relies on this dictum and invites us to extend the mens rea requirement to the second element of the statute. We do not read Griffith this broadly, however, since we have subsequently determined that this implied mens rea is applicable only in cases that do not involve penile penetration. See In re Odell, 672 A.2d at 460; Bryant, 670 A.2d at 783. Thus the mens rea necessary in cases involving penile penetration is implicit in the intentional doing of the act. Therefore, in the context of this case we emphatically decline Yanez’s invitation and hold that the state must prove beyond a reasonable doubt only that Yanez engaged in sexual intercourse with a person who was fourteen years of age or younger. See Girouard, 561 A.2d at 889.
The dissent cites Tobin, Griffith, Bryant, and State v. Tevay, 707 A.2d 700 (R.I.1998), to support the proposition that this Court has previously required a mens rea for child-molestation sexual assault crimes and only “now throws itself into reverse gear and
These cases refer to situations in which we have been required to interpret chapter 37 of title 11 following the 1979 amendment to the sexual assault statutes. At common law the crime of rape consisted of “the act of sexual intercourse committed by a man with a woman not his wife and without her consent, committed when the victim’s resistance is overcome by force or fear, or under other prohibited conditions.” State v. Golden, 430 A.2d 433, 435 (R.I.1981). “In 1979 the General Assembly amended chapter 37 of title 11, which had provided penalties for rape and seduction and substituted for these terms the crime of ‘sexual assault.’ ” State v. McDonald, 602 A.2d 923, 926 (R.I.1992). This 1979 amendment broadened the definition of sexual penetration by force to include, in addition to sexual intercourse, the intrusion of any part of a person’s body into one’s anal or genital cavities. State v. Babbitt, 457 A.2d 1049, 1054 (R.I.1983). Likewise, the amended version also created an offense unknown to the common law, second-degree sexual assault, which criminalized “sexual contact,” as that term is defined. See §§ 11-37-1(7); 11-37-4.
As the dissent points out, over the past years this Court has been required to interpret the meaning of the terms “sexual penetration” and “sexual contact” with respect to the crimes of sexual assault as well as the subsequently enacted offenses of child-molestation. See Bryant, 670 A.2d at 783 (interpreting sexual penetration); Griffith, 660 A.2d at 706 (extending Tobin to sexual penetration); Tóbin, 602 A.2d at 534 (interpreting sexual contact). However, the common law crime of rape has always been embodied in the first-degree sexual assault statute, see Babbitt, 457 A.2d at 1054, and this crime has always been considered a general-intent crime and has never been interpreted by this Court as requiring a mens rea. See Bryant, 670 A.2d at 783. We have never deviated from the general principle “that purposeful penile penetration precludes a finding of innocent touching.” Id.
In addition we do not read our recent opinion in Tevay so broadly as the dissent does and strongly disagree that Tevay “reaffirmed the requirement that the prosecution must prove intentional .wrongdoing for the defendant to be guilty of child .molestation and specifically endorsed a mistake-of-faet defense.” Not only was that question not before us in Tevay, but Tevay simply does not stand for that proposition.
Tevay concerned a challenge to the adequacy of a jury instruction in light of the fact that the defendant presented testimony in which he denied engaging in any inappropriate conduct with his twelve-year-old stepdaughter, even though he did acknowledge being a heavy sleeper who would occasionally pull his wife into bed when she attempted to wake him. 707 A.2d at 701. Tevay then conceded that there was a ‘“ten percent chance’” that the charged incident (pulling his stepdaughter into bed, touching her buttock, and forcing her to touch his penis) could have occurred without his knowledge. Id. The trial justice instructed the jurors that in order to find Tevay guilty of second-degree child-molestation sexual assault, they must find that “Tevay’s conduct was intentional and had as its purpose sexual arousal or gratification.” Id. at 702. The trial justice added that Tevay might not be found guilty “‘of conduct which you feel from the evidence, causes you to conclude that the conduct was accidental.’ ” Id. Tevay’s request for a mistake of fact instruction was denied, and this Court not only approved the jury instruction as a whole but found no error in the trial justice’s refusal to give an instruction on mistake of fact as well. Id.
We determined that in the context of the factual scenario as alleged by Tevay, accident and mistake of fact related to the same defense theory, and we therefore concluded that “the jurors were adequately informed that if they had found Tevay’s conduct toward [the stepdaughter] was unintentional for any reason, they were to return a verdict of not guilty.” Id. The only reasons asserted by Tevay in his defense were (1) that he did not commit the crime, (2) that if he did commit the crime it was an accident, and (3) that if he did commit the crime and it was not an accident, the crime was not intended for his sexual arousal or gratification. Our
In sum a majority of this Court rejects the dissent’s reliance on Tobin, Griffith, Bryant, and Tevay for the proposition that these cases require a mens rea with respect to the age of the victim in statutory-rape cases. These cases are not applicable to the age of the victim and relate solely to the perpetrator’s intentions in performing the act. We have never had occasion to pass upon the question presented by this case — whether the age requirement attendant to a charge of first-degree child-molestation sexual assault requires a mens rea — and we certainly did not specifically endorse the mistake of age defense in Tevay since the question before us in that case was the adequacy of the jury instructions relating to intent.
The dissent also maintains that since § 11-37-8.1 carries a minimum twenty year prison sentence, this offense is not a strict-liability crime. However, this factor alone is not persuasive since statutory-rape laws frequently involve substantial terms of imprisonment. See Miss.Code Ann. § 97-3-65 (1972) (“Every person eighteen (18) years of age or older who shall be convicted of rape by carnally and unlawfully knowing a child under the age of fourteen (14) years, upon conviction, shall be sentenced to death or imprisonment for life in the State Penitentiary”) (emphasis added); see also Collins v. State, 691 So.2d 918, 922-23 (Miss.1997) (rejecting the mistake of fact defense). One commentator has succinctly observed:
“[cjrimes such as rape, assault with intent to rape, carnal knowledge, seduction, and the like, where the offense depends upon the girl’s being below a designated age, are punishable if the victim is in fact under the specified age, irrespective of the defendant’s belief as to her age, no matter how reasonable his mistake of fact may have been. It is obvious that these offenses are totally unlike the ordinary police offenses involving minor penalties not requiring mens rea. Very frequently they involve substantial terms of imprisonment; and presumably they do require a mens rea [unless it relates to the age of the girl]. The reason that mistake of fact as to the girl’s age constitutes no defense is, not that these crimes like public welfare offenses require no mens rea, but that a contrary result would strip the victims of the protection which the law exists to afford. Public policy requires it. Unless defendants were made to determine at their peril whether or not their victims fall within the class peculiarly needing the protection of the law and thus set apart, there could be no real protection.” Francis Bowes Sayre, Public Welfare Offenses, 33 Colum.L.Rev. 55, 73-74 (1933).
In addition since Rhode Island’s first-degree child-molestation sexual assault statute is by nature a creation of the Legislature, a new provision introducing either a mens rea or the defense of reasonable mistake of age should also come into existence from the Legislature and not by judicial fiat. In this case the trial justice in his discretion suspended eighteen years of the minimum twenty year sentence. We conclude that in the circumstances presented by this case, and in the absence of legislative direction, the “better procedure [is] to permit any mitigating and ameliorating evidence in support of a defendant’s mistaken belief as to the complainant’s age to be considered by the trial judge at the time of sentencing.” People v. Cash, 419 Mich. 230, 351 N.W.2d 822, 828 (1984).
We note that at the sentencing hearing the trial justice was fully cognizant of Yanez’s favorable presentence report, his work history, his expressed remorse, and his supportive family. However, there is no escaping the fact that on their very first “date” following a brief encounter lasting only two or three minutes the previous day, this eighteen-year-old defendant engaged in sexual intercourse on the bedroom floor of his friend’s house with this thirteen-year-old girl. The trial justice appropriately observed that there was some measure of planning involved in Ya-nez’s encounters with Allison, which were
We recognize that the dissent firmly believes that the General Assembly intended for jurors “to sort out true cases of child molestation from those involving consensual premarital sex between teenagers based upon a mistaken but reasonably held belief that both were old enough to dó so legally.”
First, it would open the door to the introduction of evidence concerning a victim’s past sexual conduct, evidence that the General Assembly has already sought to restrict through the enactment of the rape-shield statute. See § 11-37-13. This protection was designed to encourage rape victims to come forward and report crimes; thus we have limited the use of a victim’s past sexual history to questions relating to a complaining witness’ credibility, see State v. Oliveira, 576 A.2d 111, 113 (R.I.1990); State v. Lemon, 456 A.2d 261, 264 (R.I.1983), and have specifically held that such an inquiry is not relevant to the issue of consent. See State v. Alger, 545 A.2d 504, 507 (R.I.1988). Therefore if a victim, in this case Allison, is to be subject to cross-examination, as the dissent suggests, concerning her “evident sexual experience,” as well, as her “developed physical appearance, her poise, [and] her association with older teenagers,” in order for a defendant to establish his or her reasonable belief that the victim was at least sixteen-years-old, we conclude that such action should come from the Legislature and not from this Court. This is a door best left closed until it is opened, if at all, by those who are better able to debate all the consequences.
Second, we are mindful that were we to adopt a mistake of age defense in cases of child-molestation sexual assault, this defense would be available to all persons charged with engaging in sexual contact with children under the age of fourteen and not only this eighteen-year-old defendant. The availability of this defense would, of course, inevitably lead to the presentation of evidence concerning the issue of consent. In order to avail oneself of the mistake of age defense, the accused, like Yanez in this case, would be required to allege not only that he or she reasonably believed the victim to have been at least sixteen years of age but also that the victim consented to the act. This defense
II
Scope of Cross-Examination
Yanez’s second argument on appeal concerns the trial justice’s refusal to allow the defense to cross-examine Allison concerning her false identification of Yanez as the father of her unborn child. Had the defense been permitted to develop this line of inquiry, Yanez claims that Allison’s credibility would have been challenged since tests later confirmed (and Allison later admitted during trial) that she had not been made pregnant by Yanez. During a pretrial hearing the state moved in limine to preclude the defense from presenting any evidence suggesting that Allison had given birth to a child, the father of whom was not Yanez. The state maintained that the fact Allison had given birth was simply not relevant to any issue in the case. Yanez maintained that he intended to offer such evidence, not to present evidence of prior sexual conduct, but to impeach Allison’s credibility. Specifically Yanez alleged that even though one or more pregnancy tests were performed with negative results subsequent to his encounters with Allison, she nonetheless falsely named Yanez the father. Although Yanez acknowledged that neither element of the offense of first-degree child-molestation sexual assault was in dispute,
Yanez relies on State v. Izzi, 115 R.I. 487, 490, 348 A.2d 371, 372 (1975), in which we stated that since sex-offense cases involving minors often turn on the credibility of one party or the other, evidence of prior false charges by one of the parties is relevant to the ultimate question of guilt or innocence. In this case, however, Allison’s credibility with respect to the essential elements of the offense was not in issue. Testimony concerning the false accusations about Yanez may have become relevant only if the mistake of fact defense was available to this defendant. It is not. Accordingly, evidence that Allison may have told others that she was impregnated by Yanez was simply not relevant to this offense. Since we have determined that the only relevant inquiry was whether (1) Yanez engaged in sexual intercourse with Allison and (2) Allison was fourteen years of age or less, evidence pertaining to Allison’s prior inconsistent statements about the father of her unborn child was properly excluded by the trial justice both on the grounds of relevance and in light of the balancing test required by Rule 403 of the Rhode Island Rules of Evidence.
Conclusion
For the reasons articulated, we deny the defendant’s appeal and affirm the judgment of conviction. The papers in this case are hereby remanded to the Superior Court.
. Far from the dissent’s contention that the uncharged sexual encounters occurred before this charged incident and that Allison and Yanez were actually dating each other, the record simply does not contain this inference. Although we are confident that the record taken in its entirety supports our conclusion that Allison and Yanez were not dating, we nonetheless highlight Allison’s testimony to counter the notion that we have misconstrued or ignored the record in this case.
’’[Prosecutor]: [Allison], after meeting the defendant, at the Portuguese carnival, did you ever have the occasion to see him again?
"[Allison]: Um, I seen him a couple of times in passing and I think I seen him once at my aunt’s house.
"[Prosecutor]: Can you describe how it would come to pass that you would see him in passing?
"[Allison]: Just like either me coming home from school or going down to the basketball court, and he would drive by or something.
I would wave ‘hi,’ that’s about it.
"[Prosecutor]: Did you have any conversations with him during that period of time?
"[Allison]: No.
"[Prosecutor]: Well let me ask you this. How long, how many months or how many weeks did it go on that you would see him occasionally and you would wave?
“[Allison]: At least half a year.
[Testimony relating to the refreshing of Allison’s memory concerning the year she first met Yanez is omitted.]
"[Prosecutor]: I believe my last question, [Allison], was how did the relationship progress?
"[Allison]: Um, I was walking down the road going to a park off Wakefield Street to meet my friends, and then we were going to go out. I forget where we were going, but we were going to go out somewhere and I had seen Alex and he stopped and he asked me if I wanted a ride. I told him no, because it was right there, but thanks for asking. He said I’ll give you one anyway, and I said sure.”
Later, during cross-examination, Allison testified concerning one of her chance encounters with Yanez at her aunt's home.
"[Defense Counsel]: I just have a couple of more questions. At the time you indicated that you met Mr. Yanez at your aunt's house?
"[Allison]: Yes, ma’am.
"[Defense Counsel]: Victor Yanez was present at the home at that time, correct?
"[Allison]: Yes, I'm pretty sure he was.
"[Defense Counsel]: And your aunt was there at that time, correct?
"[Allison]: Yes, ma’am.
"[Defense Counsel]: And they were getting ready to leave?
"[Allison]: Yes, ma’am.
“[Defense Counsel]: And you were going to baby-sit?
"[Allison]: Yes.
"[Defense Counsel]: And Mr. Yanez stopped by to see his brother, do you recall that?
"[Allison]: Yes, ma’am.
"[Defense Counsel]: And there was a brief introduction between the two of you?
"[Allison]: Yes, ma’am.
"[Defense Counsel]: And no conversation took place at that point, correct?
"[Allison]: No.
*762 "[Defense Counsel]: It was just like a hi, by[e], and that’s the end of it?
"[Allison]: Yeah."
Thus we And no support in the record to suggest that Allison and Yanez had any sexual encounter, or for that matter had even had a conversation, until they briefly talked on the day Yanez drove Allison down the street to meet her friends at the park. The next day, July 14, 1993, Allison and Yanez engaged in sexual intercourse on the floor of a back bedroom belonging to one of Yanez's friends. Allison's cross-examination testimony reveals that this incident was the first time she and Yanez had engaged in sexual intercourse.
"[Defense Counsel]: Is it your testimony that on July 14th of 1993, which is the first time—
"[Allison]: Yes, ma’am.
"[Defense Counsel]: — you allege that you were with my client?
"[Allison]: Yes, ma’am.
"[Defense Counsel]: Is it your testimony that you spoke with Denise * * * on July 14th?
"[Allison]: I think I did speak with her later on that night.
“[Defense Counsel]: That’s the night that your mother asked whether or not you had had . sex?
"[Allison]: Yes, ma'am.”
In regard to the portion cited by the dissent suggesting that the incident at the friend’s house was actually the third sexual encounter, we believe that Allison’s answer refers to frequency and geography but not chronology.
. See also United States v. Ransom, 942 F.2d 775, 777 (10th Cir.1991); H.R.Rep. No. 99-594, reprinted in 1986 U.S.Code Cong. & Admin. News 6186, 6197 ("At common law there was no such defense”); Recent Cases, 78 Harv.L.Rev. 1257, 1257 (1965). But see Larry W. Myers, Reasonable Mistake of Age: A Needed Defense to Statutory Rape, 64 Mich.L.Rev. 105, 110 (1965) ("reasonable mistake of age has never been denied as a defense in an English statutory rape case”).
. See Ransom, 942 F.2d at 777; United States v. Brooks, 841 F.2d 268, 270 (9th Cir.1988); State v. Superior Court of Pima County, 104 Ariz. 440, 454 P.2d 982, 985 (1969); State v. Stiffler, 114 Idaho 935, 763 P.2d 308, 310 (App.1988); Garnett v. State, 332 Md. 571, 632 A.2d 797, 804 (1993); People v. Cash, 419 Mich. 230, 351 N.W.2d 822, 826 (1984); State v. Searles, 159 Vt. 525, 621 A.2d 1281, 1283 (1993). See also Annotation, Mistake or Lack of Information as to Victim's Age as Defense to Statutory Rape, 8 A.L.R.3d 1100 (1966); 3 Wharton’s Criminal Law § 285 at 69-72 (Torcia 15th ed. 1995) ("It is no defense that the defendant did not know the female’s age or reasonably believed her to be of the age of consent”); 65 Am.Jur.2d Rape § 36 (1972) ("It is generally held in the absence of statute, that the defendant’s knowledge of the age of the female is not an essential element of the crime of statutory rape and therefore it is no defense that the accused reasonably believed that the prosecutrix was of the age of consent").
. General Laws 1956 § 11-37-4's definition of second-degree sexual assault reads:
"A person is guilty of a second degree sexual assault if he or she engages in sexual contact with another person and if any of the following circumstances exist:
"(1) The accused knows or has reason to know that the victim is mentally incapacitated, mentally disabled or physically helpless.
"(3) The accused engages in the medical treatment or examination of the victim for the purpose of sexual arousal, gratification or stimulation." (Emphases added.)
Section 11-37-1(7) defines "sexual contact” as:
“the intentional touching of the victim’s or accused’s intimate parts, clothed or unclothed, if that intentional touching can be reasonably construed as intended by the accused to be for the purpose of sexual arousal, gratification, or assault.”
. Unlike first- and second-degree sexual assault, which explicitly contain a mens rea requirement, third-degree sexual assault (§ 11-37-6) does not provide for such an element and thus closely parallels the language in the child-molestation sexual assault statutes. The Legislature has defined third-degree sexual assault to provide that "[a] 'person' is guilty of third-degree sexual assault if he or she is over the age of eighteen (18) years and engaged in sexual penetration with another person over the age of fourteen (14) years and under the age of consent, sixteen (16) years of age.” Section 11-37-6. In our opinion this language further evinces the Legislature’s intent to protect underage children from the consequences of sexual intercourse.
. In a manner similar to our opinion, the dissent also relies on Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952) for its analysis concerning mens rea. Unfortunately this analysis relies heavily on the general requirement that a mens rea accompany every crime, and attempts to distinguish the Morissette footnote where the Supreme Court articulates several exceptions to this general rule including "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.” Id. at 251 n. 8, 72 S.Ct. at 244 n. 8, 96 L.Ed. at 294 n. 8.
. During the trial Allison’s mother testified concerning the first time Yanez saw Allison. Allison’s mother testified that after an evening out with her sister, Victor, and Yanez, a car driven by her sister pulled into her driveway. When Yanez inquired concerning the identities of the two individuals in the window, Allison's mother responded that they were her daughters, who were aged eleven and twelve and that Yanez was "to stay away.”
. We point to § 11-37-6, which provides that one who is over the age of eighteen and engages in sexual penetration with a person over the age of fourteen but under the age of consent, sixteen, is guilty of third-degree sexual assault. This crime carries a maximum penalty of five years imprisonment. This section represents a legislative determination that teenagers who are over the age of fourteen may engage in "exuberant sexual behavior,” which is in fact not criminal under our law. The line, however, is drawn at children who are under the age of fourteen.
. At the outset of the criminal investigation in this case Yanez voluntarily gave police a written statement wherein he admitted having engaged in sexual intercourse on one occasion with Allison but maintained that Allison had informed him that she was sixteen years of age. This statement was admitted into evidence without objection.