The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Say you are trying to pick someone up online for sex. You've never met in person, but she tells you in your online conversation that she's above the age of consent (16 in most states, 17 in some others, 18 in still others). Let's say that you have no reason to think she's lying, but she is: It turns out that she's underage. You never meet and you never have sex. Can you still be prosecuted for soliciting a minor for sex, on a "strict liability" theory—i.e., that you were trying to pick up someone who turns out to be underage, even though you didn't know this or have reason to know it?
No, says today's Minnesota Court of Appeals decision in State v. Moser, holding that a state strict liability solicitation statute was unconstitutional.
The child-solicitation statute makes it a felony punishable by up to three years in prison for "[a] person 18 years of age or older" to solicit "a child [defined as someone under age 16] or someone the person reasonably believes is a child to engage in sexual conduct with intent to engage in sexual conduct." Solicitation may occur "in person, by telephone, by letter, or by computerized or other electronic means" (emphasis added)…. The statute clearly states that "[m]istake as to age is not a defense to a prosecution under this section."
Typically, criminal offenses require both a volitional act and a criminal intent, referred to as mens rea. A statute imposes strict liability when it dispenses with mens rea by failing to "require the defendant to know the facts that make his conduct illegal." The state argues that the child-solicitation statute does not impose strict liability because it requires an "intent to engage in sexual conduct." But it is the intent to engage in sexual conduct with a child that makes the conduct illegal, not the intent to engage in sexual conduct generally. The child-solicitation statute imposes strict liability because it does not require the state to prove that the defendant had knowledge of the child's age (the fact that makes the conduct illegal), and it prohibits the defendant from raising mistake of age as a defense.
Strict-liability crimes are generally disfavored, but states may enact them within the boundaries of the Constitution. The question before us is whether Moser's constitutional right to due process requires that he be permitted to raise a mistake-of-age defense….
The concept that wrongdoing must be conscious in order to be criminal is fundamental to our justice system. As Justice Jackson wrote in Morissette v. United States:
The contention that an 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 on the human will and a consequent ability and duty of the normal individual to choose between good and evil…. Unqualified acceptance of this doctrine by English common law in the Eighteenth Century was indicated by Blackstone's sweeping statement that to constitute any crime there must first be a "vicious will."
The court acknowledges that there are two areas were strict liability is traditionally allowed: "public welfare offenses" that tend to carry relatively low punishments (such as "failing to produce proof of insurance on an automobile" or "the sale of contaminated or adulterated foods or drugs"), and statutory rape laws. But the court concludes that this felony sex offense statute can't qualify as a "public welfare offense." And the statutory rape analogy, the court says, doesn't work because the statutory rape exception rests on the theory that people who meet others for sex can reasonably determine their prospective partner's age; that's not possible when people are just soliciting sex online, before a meeting:
[T]he child-solicitation statute imposes an unreasonable duty on defendants to ascertain the relevant facts. In cases where the defendant encounters the victim in person, it is reasonable to require the defendant to ascertain the victim's age. For example, it does not offend due process to charge the child pornography producer, in-person child solicitor, or child rapist, with knowledge of the victim's age. Where solicitation occurs solely over the Internet, however, it is extremely difficult to determine the age of the person solicited with any certainty. Moser solicited the child solely over the Internet and never met her in person….
Further, by eliminating the mistake-of-age defense and imposing strict liability, the child-solicitation statute includes within its ambit adults who have no desire to have sexual contact with children but instead believe that the person who they are soliciting over the Internet is another adult. If the Internet solicitation ever reached the point of an in-person meeting for sexual contact, the adult would presumably realize the individual was a child and end the encounter before any sexual activity occurred. Subjecting these adults to criminal liability does not serve the statute's purpose of protecting children from sexual exploitation. The statute, as applied to Moser, is also overinclusive and cannot survive strict scrutiny.
And the court also argues thus:
"Felony" is "as bad a word as you can give to man or thing." Morrisette. Under the child-solicitation statute, Moser is labeled a felon, subject to a three-year prison sentence, required to register as a predatory offender for the next ten years, and assigned one criminal-history point for his conviction. All of these penalties accrue without Moser being able to defend himself by saying that he did not know he was soliciting a child.
That the child lied and told him that she was 16 years old is no defense under a strict application of the statute as written. Although we take no position on the precise penalty that would bring the statute within constitutional bounds, felony liability and predatory-offender registration exceed what is permissible for the strict-liability offense at issue in this case….
The child-solicitation statute infringes on Moser's fundamental rights to liberty, to a fair trial, and to present a complete defense. It cannot survive strict scrutiny.
A few other states have similarly held that strict liability is unconstitutional (perhaps with some exceptions), though other courts have disagreed. It will be interesting to see whether the Minnesota Supreme Court (or perhaps even the U.S. Supreme Court) agrees to hear the case.
My view: I'm ambivalent on whether strict liability statutes generally violate the Constitution, but I do think that strict liability in criminal cases—except perhaps for minor infractions, such as traffic offenses—is bad policy. If we think that a defendant knew or even should have known the facts, then he could be properly punished under a statute that requires some culpable mental state (even if just negligence). But if the defendant violated the law only because of a reasonable, nonnegligent factual mistake, I don't see how he can be properly condemned as a criminal.
I think this is so even as to statutory rape. If someone reasonably believes that his sexual partner is above the age of consent (say 18, as in California)—for instance, because the partner lied about her age, and perhaps even showed the defendant a credible-seeming fake id—I don't see why the defendant should be criminally punished. But this is even more clear in cases of online solicitation, where there's really not much of an opportunity for the defendant to figure out the other person's age.
I also think that there is a very strong constitutional argument against strict liability when the behavior, as the defendant reasonably believed it to be, was substantively constitutionally protected. The Supreme Court has recognized this as to speech: If you reasonably believe that what you're saying is true, you can't be prosecuted for criminal libel (or even sued for libel, if the statement is on a matter of private concern); a strict liability rule, the Court has held, unduly chills constitutionally protected speech. If you reasonably believe that the pornography that you are possessing or distributing depicts an adult, you can't be prosecuted for child pornography (though some lower courts have reached a different result as to production, rather than just possession or distribution). If you reasonably don't know the content of the book you're selling (it's just one of thousands in your bookstore), and it turns out to be obscene, you can't be prosecuted for obscenity.
Lower courts have recognized this in some abortion cases, and some gun cases. I think it should likewise be so for sex cases (at least ones where the defendant sincerely believes that the person he was having sex with was over 18, and not just 16, as in the Moser case), which involve the Lawrence v. Texas right to sexual autonomy; this post discusses the matter in more detail. And certainly that should be so when a person is just trying to arrange a sexual encounter.