The ACLU Hates Corporations More Than It Loves Civil Liberties

Mens rea could derail criminal justice reform.


Mens rea

The American Civil Liberties Union has discovered yet another civil liberty it isn't interested in defending: "mens rea," the notion that people can only be found guilty of crimes they were aware they had committed.

In principle, mens rea—Latin for "a guilty mind"—means the government must prove not only that a crime was committed, but also that the perpetrators knew they were breaking the law. In practice, this important component of due process has been ignored by federal and state lawmakers who have created numerous exceptions in the criminal code. Laws criminalizing sex with underage minors, for instance, often have no mens rea test: a person can be found guilty of having sex with a minor, even if he had every reason to believe the minor was of consenting age (even if, for instance, she lied and said she was older, as was the case for Zach Anderson).

One might expect the ACLU to cherish mens rea and advocate its application in more cases. If the government was universally required to prove that defendants understood the criminal nature of their acts, fewer people would be convicted. Fewer young, poor, and minority defendants would be railroaded for petty offenses, drug crimes, and zero tolerance weapons violations.

But the ACLU is at best indifferent—and in some ways, actively opposed—to stronger mens rea requirements. Why? Because mens rea makes it harder for the government to zealously prosecute corporations for white collar crimes.

Disagreements between conservatives and liberals on mens rea are threatening to undo the bipartisan criminal justice reform movement. Republican Rep. James Sensenbrenner's bill, the Criminal Code Improvement Act of 2015, is now opposed by some Democrats because it promotes mens rea. According to an op-ed by Yale University Law Professor Gideon Yaffe in The New York Times:

Congress is now considering a measure sponsored by Representative James Sensenbrenner, Republican of Wisconsin, that would require that mens rea be proven in many more cases. For instance, a law making it a crime to mislabel drugs would automatically be interpreted as criminalizing knowing mislabeling. The measure would not affect statutes that make clear that no mental state need be shown for guilt — for example, laws criminalizing sex with minors.

The provision is part of a sweeping criminal justice bill that includes important reforms sought by liberals, including reduced sentences for minor crimes. Democrats, however, oppose the mens rea provision on the ground that it would weaken efforts to prosecute corporate executives whose companies have caused harm. Their opposition is a major stumbling block to passage of the larger bill. But suspicions about Republican motivations should not turn liberals against these changes, because strengthening mens rea requirements will also help poor and minority people.

The federal government, unsurprisingly, is vehemently opposed to mens rea. A White House official went so far as to tell The Huffington Post that mens rea would make it virtually impossible to convict a person of terrorism. The government's job is to put people in prison, and mens rea does in fact make that task more difficult. This is not a bad thing. The number of state and federal criminal statutes is unknowable—there are literally more laws than anybody can count. Being convicted of one of these hundreds of thousands of unknowable laws should require some basic realization on the part of the guilty person.

The ACLU could have taken a principled stance in favor of the view that all people—regardless of race, class, or economic status—are entitled to mens rea protections. It did not. The supposedly pro-civil liberties organization is uninterested in strengthening mes rea for the specific reason that rich people are its most likely beneficiaries (in the eyes of the ACLU). Executive Director Anthony Romero explains in a letter to The NYT:

The reality is that at present, we know little about how this reform would affect our laws. What we do know is that its passage will do little to help the vast majority of the 2.2 million people behind bars in America and those soon to be incarcerated.

Republican lawmakers who insist on making this issue a quid pro quo are likely doing so not out of concern for the lives, families and communities torn apart by our broken system, but rather to please white-collar and corporate polluter interests who stand to gain the most.

Advocates of all political persuasions working to bring meaningful criminal justice reform would do well to keep our eyes on the prize of getting meaningful legislation passed and not let mens rea become the poison pill for the solutions our country so desperately needs.

The ACLU's Jeffery Robinson made a similar argument against mens rea. The organization "does not support the bill, but Robinson says his organization is also not actively opposing it, on the grounds that some narrower version of mens rea reform could be productive," according to HuffPost. In other words, the ACLU would first have to be persuaded that mens rea would help the kinds of defendants with which the organization sympathizes.

"I think this is worse than opposing criminal justice reform because the Republicans are for it," wrote George Mason University Law Professor David E. Bernstein. "It's opposing criminal justice reform because the executive director of the ACLU doesn't care about the rights of a certain class of accused criminals."

The Competitive Enterprise Instiute's Hans Bader disputes the idea that mens rea is an especially tough burden for the government to meet in white collar crime cases:

"It is often easy to prove mens rea in financial, environmental, and regulatory crimes, because mere negligence is often considered adequate mens rea for these crimes (unlike traditional crimes, for which a higher mens rea is needed). No legislation that is being seriously considered by the House or Senate, or has passed any legislative committee would change that. (Indeed, it looks like reform legislation will not even change the controversial and draconian Park doctrine used to jail CEOs for conduct of subordinates that they did not know of or approve, or indeed, even tried to prevent).

But this shouldn't ultimately matter to a consistent civil libertarian. The civil libertarian view is that even despicable people deserve the same protections as everyone else. Just as the KKK is fully deserving of First Amendment rights—even though it uses those rights to engage in morally repugnant speech—so too are corporate CEOs deserving of full due process—even if due process makes it harder to prosecute them.

That's the civil libertarian position, but it's not the ACLU's position. One wonders what other rights would be on the chopping block if the ACLU determined that wealthy people were more likely to take advantage of them.

NEXT: The Rich Are Living Longer: A Lot Longer Than the Poor

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  1. “The federal argument, unsurprisingly, is vehemently opposed to mens rea. A White House official went so far as to tell The Huffington Post that mens rea would make it virtually impossible to convict a person of terrorism.”

    Clearly if someone commits a terrorist attack there is no other crime we could convict them of – you know, like murder.

    1. Exactly! As in San Bernadino if it wasn’t for the terrorism charge there wouldn’t be anything else to convict the terrorists with!

      /except for murder, resisting arrest, shooting at cops, unlawful possession of firearms, etc. etc. etc.

      Fuck the ACLU.

      1. If I remember correctly from all the gun control articles posted on this site, all the firearms they had were acquired legally, so no unlawful possession charges would apply. Plenty of other stuff to convict them of, though.

        1. Two of them were apparently obtained through “straw man” purchases (for which the purchaser is being prosecuted), and another was illegally converted to full auto/machine gun.

    2. mens rea would make it virtually impossible to convict a person of terrorism

      Only if you have no evidence that they committed crimes in order to advance a political agenda. In which case, maybe they shouldn’t be convicted of terrorism?

      1. Crazy talk!

      2. I don’t think these people know what mens rea means. You don’t have to agree that you are ill intentioned, you just have to have soms intention of not going about your daily business oblivious to the law.

        1. I understand it fairly well.

          “Terrorism” is a motive- specific crime. The mens rea for terrorism is having the required motive, not just a general intention to do bad things.

          1. terrorism is a bullshit crime. If no one is harmed (murdered, assaulted, whatevs), then who was terrorized? It’s like fraud — if no harm was done by your lies, then why do the lies matter? Or conspiracy — how is it any worse to conspire to murder than to just murder?

            There’s always some base crime, and terrorism, fraud, and conspiracy are all just more crap piled on top to pad the prosecutor’s resume.

        2. That’s the point. Terrorism in absence of action is free speech or political advocacy.

  2. Principals trump principles.

  3. mens rea would make it virtually impossible to convict a person of terrorism

    Yes, because terrorists go to so much trouble to cover up the reasons for their crimes.

    1. Because the terrorists didn’t realize that blowing up airliners was illegal.

    2. I’m trying to really understand that statement – maybe they are claiming that because the terrorists sincerely believed what they were doing was right they wouldn’t meet a mens rea test? It’s BS, but that’s the best I can come up with.

      1. Yeah, it doesn’t make any sense. Even if the terrorists didn’t think what they were doing was “wrong,” they certainly sure as hell knew it was illegal.

      2. Maybe we are talking about “terrorists” nurtured by the FBI, who are told that buying some bomb-making materials from a shady dealer is totes legal?

        I really don’t get it either. Don’t terrorists, by definition, know that they’re committing illegal acts? They knowingly opt for tortious behavior.

        1. No, the manufactured cases can’t be it, because they’re prosecuted on nothing but mens rea!

      3. What’s to understand?

        They’re hacks who know that pulling out the terrism canard is going to make some people shut up.

  4. A great skewering of the current ACLU.
    I hope some people in the ACLU read it and feel ashamed.

    1. I don’t see why. The ACLU has in previous statements indicated their goal is an equality outcome for American society, not an equal application of the law to all people in the advancement of broad civil liberties.

  5. Principals, not principles

  6. The ACLU has become a disgrace. It chose to make leftist politics its central principles rather than civil liberties. How the mighty have fallen.

    1. American Crazy Leftist Union is more appropriate, yes.

  7. I’ve always heard that ignorance of the law is no defense. Is that false?

    1. Mens rea doesn’t require a specific knowledge of the law being violated, merely an awareness that what you are doing is criminal.

      It makes sense in a society where crimes require the violation of someone else’s rights, because its hard to say you didn’t know you were attacking someone or stealing their shit. In legalese, mala in se crimes very rarely don’t have mens rea presumptively. When you have victimless crimes (in legalese, “malum prohibitum”), it gets to be a lot harder to attribute knowledge that what you were doing was criminal, because its only criminal due to a diktat from the state.

      That’s what they really don’t like, I think: a strong mens rea requirement calls into question the enforcability of victimless/malum prohibitum crimes. And proggies love them some victimless crimes: what better way to insert the throbbing dong of the state into your every orifice?

      1. What is the criminal intent of someone who chooses to have sex in exchange for money?

        1. Having either fun or profit without permission.

    2. Sometimes it’s not even ignorance of the law, but ignorance of the facts.

      The classic case of a bad law with no mens rea requirement is that it’s a crime to hunt game on a baited field… even if you’re not the person who baited it, even if you weren’t aware that it was baited, and even though you couldn’t possibly have determined that it was baited. (Once a site has been baited, the law says it is considered baited for ten days after the last bait is eaten… so someone can be convicted based on events that were only observable a week before he arrived!)

      I know of one case where one group of hunters outbid another for a duck hunting lease, and it was clear the losers just baited the place and “dropped the dime” nine days before opening day. The lease winners were cited, convicted, and the conviction upheld on appeal.

  8. The ACLU doesn’t really care about civil liberties? Color me shocked….

  9. The ACLU is a reflection of its donors’ preferences–much like McDonalds is a reflections of its customers preferences.

  10. “jail CEOs for conduct of subordinates that they did not know of or approve, or indeed, even tried to prevent).”

    Is it just me or did this guy fuck up those commas pretty spectacularly? Is he trying to kill Nicole?

    1. Perhaps he too is a Rutgers product!

    2. “did this guy fuck up those commas pretty spectacularly? “


    3. It’s just you. The commas are correct. In fact, the sentence could use one more. The second indeed is pointless.

  11. Mens rea doesn’t require that you know you’re breaking the law, it requires that you intend to commit the illegal act.

    1. Exactly. While I generally support these reforms, they have nothing to do with mens rea. I’m not sure whether Soave (and the people advocating for this) don’t realize this, or whether they’re purposefully conflating the issues because mens rea has deep historical roots while the concept that you have to know the law doesn’t.

  12. The heart of socialism is two ideas. First, socialists believe that selling something for a profit is exploiting people. Socialists believe that earning an honest living is exploiting and harming others. Second, socialists believe that by virtue of your class you are collectively guilty of harming others.

    You can’t believe in those two things and support civil liberties. The ACLU is a socialist organization. So of course it does not support civil liberties in any meaningful way. Getting due process and protection from the government because you are a preferred class is not a civil liberty. It is an entitlement. The ACLU argues for entitlements that sometimes function like civil liberties to the beneficiaries.

    1. I wanna play too:

      John is a conservative. Conservatives hate gays. Gay haters are probably closeted gay. John is Gay. Gays are Democrats. Tony is a gay Democrat. John is Tony.

      Fuck….mind totally blown.

      1. Funny how progs are the first to think calling someone gay is a good insult. I know you are not big on thinking Eric but let me give you a hint. This is a Libertarian board. No on on here gives a shit who or what I screw. So while getting your frat boy homophob on makes for great fun back at whatever DU swamp you crawled out of, it just makes you look like a douche bag here.

        1. John thinks he’s a libertarian. Libertarians have aspergers. Aspies live at home with their moms. John lives at home with his mom.

          Hmmm. It’s all starting to make sense now.

          1. I am thinking someone here is a bit aspy, but they don’t seem to be a libertarian. Sorry Eric, this kind of piss poor trolling doesn’t work here. People here are not stupid and fanatical the way they are on KOS and DU. You need to up your game.

            1. Here’s another one:

              John’s a conservative who posts on a libertarian board. After years of abuse John now thinks he’s a libertarian. John has stockholm syndrome. Stockholm is the capital of Sweden. The Swedes are notorious socialists. John is a socialist.


              1. Yeah, I remember that from grade school, too. Good times, man, good times!

              2. John would like to participate. Eric thinks he’s a wood chipper. John takes the time to post. Eric believes only trees can produce posts. John tells Eric to Fuck Off. Eric attempts to chop down the trees because they cause too much noise. John knows that the wind causes the noise. Eric grinds posts into dust.

          2. Eric thinks he’s free. Eric thinks it’s OK to spout off because he’s a fountain of freedom. Some people get excited by freedom. Excitation can cause some people to release body fluids. Eric thinks its OK to ME-jaculate all over the comments section because he’s free to do so.

            “OOOOOOOOOOMEEEMEEEMEEEMEEEMEEEMEEE” Moans Eric repeatedly as he ME-jaculates.

            Please stop, it’s getting to sticky in here.

        2. “No on on here gives a shit who or what I screw.”
          True for some, but “no one here”? Eh, sorry. Like everyone else, libertarians are at best inconsistent at how well they live up to their stated ideals. Some don’t care. Some care and are very very angry about it.

          1. To be fair nothing in libertarian philosophy mandates that you not care about who someone screws. It just mandates that you cannot use force, including particularly the force of law, to try and change who they screw.

  13. Of course due process measures like men’s reamakes it harder for the government to convict people, that’s the whole fucking purpose of due process. We have civil liberties to limit the power of the state, not fucking enable it. If you can’t understand that, then you have no place in an organization that protects civil liberties. Which apparently means that everyone who works at the ACLU should be fucking fired.

    1. Why make it harder to convict criminals?

      Imagine, for example, if the state did not have to prove that an accused perjurer knew that his testimony was false. Perjurers would be less likely to get away with their crimes.

      Similar arguments could be made about robbery, rape, and murder. Would not abolishing mens rea make us safer?

  14. Good piece Robby.

    Its notable that the same basic argument is used by Liberals in attacking any tax-reform proposals. “They benefit the super-wealthy!!” Well, duh. Yet they completely bypass the fact that the 99% benefits far *more* in terms of tax-relief (in terms of total $ left in the public hands, if not on an individual basis), and that the economic benefits to the wider economy far outweigh their concerns about ‘rich people getting richer’.

    basically, its the same story = they care more about sticking it to their enemies than actually helping everyone else.

    1. They believe that because they believe in collective guilt and don’t believe in civil rights. A civil right is something everyone gets by virtue of being alive. Liberals, because they are socialists, don’t believe that you are entitled to anything by virtue of being alive. Whatever you are entitled to is a product of your class. If you are from the wrong class, you get nothing.

      1. There is only one human right, to not have force initiated against you.

      2. “Whatever you are entitled to is a product of your class. If you are from the wrong class, you get nothing.”

        I’m not sure the marxist class-conflict really applies, or is helpful dealing w/ modern progressives…. because the largest share of them actually come from the “upper middle class” anyway. They share most of the same demographics (and basic economic interests) as the “1%” to begin with. They certainly attend the same colleges.

        i’ve always thought Hoffer’s analysis of the “Frustrated“-classes was the most accurate read on why progs tend to come from the wealthier groups rather than the working classes. They want an enforced-equality to bring people above them DOWN rather than lift the ‘oppressed’ people (who they share almost nothing in common with) UP.

        Its more to do with their own ego, and the perception that they deserve to be ‘in charge’ despite no actual merits. They are at heart ‘elitists’ who despise meritocracy because it threatens their assumed posture.

      3. That’s not true John. They believe you’re entitled to pay as much of your income in taxes as possible.

        And that you’re entitled to buy health insurance by government diktat.

  15. Is this the ACLU’s official position or just that of its director? Or are they always the same?

  16. Clarence Darrow, who thought we had already become a police state in the early twentieth century, would weep in agony if he saw that his organization had actually become a bunch of political hacks and boot lickers of authority, instead fighting against that authority.

    1. It’s hard to say. Clarence Darrow may have developed a general distrust of corporations as the rest of the modern left.

  17. Mens rea is one of those historical concepts that made me proud of the former Republic of the United States, It was one of those things that distinguished our former honorable Republic versus the Soviet Union. The drug wars and willing SCOTUS pretty much buried the concept. But the idea that mens rea would make it difficult to convict terroists is fucking ludicrous. Thousands of small town prosecutors who didn’t go to “Top schools” were some how able to surmount this hurdle to convict people of, for example, murder.

  18. The ACLU lost its way long ago…

    1. No, they regained their way. It was originally set up to help communists & communism. Then along the way they started promoting civil liberties generally. Then they said, “Why are we helping anybody in the oppressor class?” & went back to how they started.

  19. This is mentioned up above – Soave is confusing mens rea with ignorance of the law. Ignorance of the law is no excuse, and never has been an excuse (whether or not that makes sense in a world where no one – not even lawyers – know what all the laws are, I leave you to decide). Mens rea simply means that the person committing the act intentionally commits that act. If someone tells me to press a button to summon a butler, and I press the button not knowing that it’s actually hooked up to an electric chair and fries someone to death, that brings up mens rea issues. I had no idea that pressing the button led to the death of the person. That I knew or didn’t know that murder was illegal is irrelevant.

    Statutory rape is a strict liability crime that doesn’t require mens rea because it would make prosecution difficult (whether that’s a good or bad thing, I’ll leave you to decide). There are 15 year old girls that look like they are 23. They may also have fake IDs. It may be perfectly reasonable for me to believe that she is 23, and that I have no intention of having sex with an underage girl. Doesn’t matter. Strict liability crimes take out this mens rea requirement. That I knew or did not know that it was illegal to have sex with a 15 year old girl is irrelevant, even if statutory rape had a mens rea requirement.

    1. Mens rea simply means that the person committing the act intentionally commits that act.

      Its a little more than that, although its always been pretty fuzzy. It involves not just intention to do the act, but also some level of (imputed?) knowledge that the act is wrongful.

    2. Ignorance of the law is no excuse, and never has been an excuse

      Unless you’re a cop.

      1. basically “… to insert the throbbing dong of the state into your every orifice” – RC Dean

        my new favorite phrase

    3. So Hillary isn’t excused from criminal liability whether she knew certain emails were, or should have been, classified at some level or not ?

      Let’s see how that plays out in real life. I’m betting that mens rea isn’t something that is distributed out equally among the various social classes that comprise our society.

      Those damn 1%ers and their mens rea.

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  21. I guess great minds must think alike, Robby.

  22. “mens rea would make it virtually impossible to convict a person of terrorism.”

    I realize this was about the difference between terrorism and plain old murder, but the idea of a bunch of accidental terrorists running around accidentally terrorizing people amused me.

    1. Sounds absurd, but it actually happens with some regularity. This is exactly how the Hammonds wound up being convicted under the Antiterrorism and Effective Death Penalty Act.…..g-behind-b

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  24. Better that 100 innocent men rot in prison than 1 wealthy person go free, eh?

  25. It’s a special kind of hatred that motivates someone to be willing to wound their own cause in order to wound someone else’s, particularly when common interests are clearly at stake. The ACLU is becoming (has become?) Goddamn worthless.

    1. The ACLU has become a suicide bomber of civil rights ?

  26. In principle, mens rea?Latin for “a guilty mind”?means the government must prove not only that a crime was committed, but also that the perpetrators knew they were breaking the law.

    No, mens rea means that have to prove I was aware of commiting a forbidden act, not that I was aware the act was forbidden.

    e.g. suppose I go to a restaurant and hang my coat up on the coat rack. While there, someone with a similar coat comes in and hangs it up next to mine. On the way out, I accidentally grab their coat and walk out with it, leaving my coat behind. Am I guilty of theft? No, because I wasn’t aware I took someone else’s coat.

    It doesn’t mean I can take what I know to be someone else’s coat and then claim I was unaware there was a law against theft.

    1. much more clearer – sheesh

  27. For certain, the IRS ignores mens rea, even though the code is so complex there may not be a single human who understands it. It’s the “Ignorance of the law is no excuse” idea, which saves prosecutors from being mind readers.

    I suspect a case can be made for a difference between someone who has been given wrong information, either by an authority or by a victim, vs someone who acts without seeking the facts. The guy who has been told by a statutory rape victim that she is of age, seems less guilty than the guy who never asked.

    What about someone who follows the advice of his accountant? Or someone who follows the advice of an IRS agent.

    And then there are all those “knew or should have known” prosecutions. “Should have known”?? Who measures that?

    Sometimes laws disagree. Consider federal vs. local law regarding pot. If it’s legal under one set of laws, should you be prosecuted under a different set of laws?

    Is jaywalking illegal in your city? If so, what exactly is it, and what is the penalty? Do you know?

    And it isn’t just knowing the law. What about interpreting the law? Tickets have been given for going “too fast for conditions.” “Conditions”??

  28. In principle, mens rea?Latin for “a guilty mind”?means the government must prove not only that a crime was committed, but also that the perpetrators knew they were breaking the law.

    I will be interested to see if Reason/Mr. Soave updates this piece with a correction to the statement above which, as has been explained multiple times now, is fundamentally incorrect.

    I would highly recommend running these sorts of things past someone with a legal education before publishing them in the future.

  29. Correct me if I’m wrong, I’m not a lawyer, but aren’t drug free school zone laws an example of a crime where mens rea is disregarded?

    Wherein you don’t need any “intent” to be within 1000 feet of a school during a drug transaction to be guilty of this crime. An adult can exchange $10 worth of marijuana with another adult in any location, indoors or out, with not a school or a child in sight and, if caught, the government will add the additional school zone charge which may turn a misdemeanor into a felony or trigger mandatory sentencing.

    If I’m correct here and mens rea reform would eliminate drug-free school zone laws and other misuse of “school zone” enhancements, that should be reason enough for the ACLU to support it. Anyone serious about ending the drug war should be okay with allowing a few guilty white collar criminals to escape punishment by the same means.

  30. Libertarians should take over and wrestle control of the ACLU, as it stands no one in the ALCU is concerned about liberties.

    1. I’m on board with this idea.

      Or create a rival to the ACLU that actually cares about civil liberties.

  31. If a corporations retains legal counsel it ought to be easier to prove mens rea. Ignorance of the law can hardly be an excuse when you have retained an officer of the court to keep you from being ignorant. So, there goes that excuse.

  32. Imagine that every high school senior learned about mens rea in a civics class. As future potential jurors they could impose the standard via common law precedents.

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  35. The number of state and federal criminal statutes is unknowable?there are literally more laws than anybody can count. Being convicted of one of these hundreds of thousands of unknowable laws should require some basic realization on the part of the guilty person.

    Another argument in favor of desuetude.

  36. This is the most convoluted article I’ve seen on Reason. What is the legal issue that is actually at stake? Is the issue prosecuting white-collar crimes where the crime involves some sort of cooperation among alleged criminals hiding behind the legal immunity inferred on them by a state-created incorporation? It should be self-evident that corporations cannot ever be imprisoned – no matter how few/many legal protections still apply to a completely different issue (relating to individual humans who CAN be imprisoned).

    Obviously using this as an excuse to go after legal protections that apply to individuals is deceitful. But so is the notion that all one can do is throw up their hands and let criminal law apply only to individuals who aren’t able to get a state-created corporation to be the front.

    Am I missing something here? Because the solution seems obvious to me. Keep (and even strengthen if it has been weakened recently) mens rea and other INDIVIDUAL protections in place for anything where the focus is on punishment and a possible punishment is imprisonment – adjudicated in a criminal court. And create different protections for anything where the focus remains on punishment (v civil court where the focus is entirely on disputes between two non-govt parties) but where the possible punishment is revocation/disbandment of the corporate charter itself.

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  39. This makes me think about those To Catch a Predator videos from Dateline. Why would those people get in trouble if the actor is over 18? If it is because you can prove through the chat records the person believed they were under 18, that is fine, but why would someone be convicted of statutory rape if they can prove the person said they were over 18?

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