Sex Crimes

Ruling Allows Online Sex Solicitors to Argue 'She Said She Was 16'

The Minnesota Court of Appeals says due process requires allowing a mistake-of-age defense.

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"What are you doing tonight?" Mark Moser, a 42-year-old Minnesota man, typed while chatting with a girl on Facebook a couple of years ago. "When can I meet you and fuck that awesome pussy of yours?" That question resulted in a felony conviction for soliciting sex with a child, because it turned out the girl was 14. Under state law, it did not matter that she had told Moser she was 16, which is the age of consent in Minnesota. But according to the Minnesota Court of Appeals, which overturned Moser's conviction on Monday, preventing him from raising that defense violated his constitutional right to due process.

Statutory rape laws generally do not require proof that the defendant knew his sexual partner was too young, on the theory that if you meet someone for sex you should be able to figure out how old she is. As UCLA law professor Eugene Volokh notes, that assumption is dubious even when applied to in-person encounters. What if a girl "lied about her age, and perhaps even showed the defendant a credible-seeming fake ID"? But in Moser's case, he never met the girl in person and never even saw any pictures of her (although she kept promising to send him some). So how was he supposed to know she was lying?

Since Minnesota's law barred Moser from raising that question, the appeals court concluded, it imposed strict liability, meaning his intent was irrelevant:

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.

The court notes that "strict-liability crimes are generally disfavored," although the Supreme Court has recognized some exceptions. One is "public welfare offenses" such as the sale of contaminated food or the possession of unregistered hand grenades. "Public welfare offenses generally involve items or conduct that by their very nature inform the defendant that his conduct may be subject to strict regulation," the court says. "These offenses also usually carry only small penalties." The court adds that "select crimes have also been excluded from the normal mens rea requirement where the circumstances make it reasonable to charge the defendant with knowledge of the facts that make the conduct illegal." Those crimes include statutory rape and production of child pornography, where "a defendant can reasonably be required to ascertain the age of a person the defendant meets in person."

The court distinguishes Moser's case from these mens rea exceptions. Unlike most public welfare offenses, it says, Moser's offense does not carry a light penalty: "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." And unlike statutory rape or production of child pornography, online solicitation of sex does not involve a physical meeting that would facilitate age verification. "The child-solicitation statute imposes an unreasonable duty on defendants to ascertain the relevant facts," the court says. "Where solicitation occurs solely over the Internet…it is extremely difficult to determine the age of the person solicited with any certainty."

The court concludes that "substantive due process" requires allowing a mistake-of-age defense in cases where "the person solicited represents that he or she is 16 or older, the solicitation occurs over the Internet, and there is no in-person contact between the defendant and the person solicited." As limited as the ruling is, it still represents a victory for the principle that people should not be convicted of crimes unless they knew the facts that made their actions illegal. The victory is especially striking given the seamy details of the case.

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  1. What world are these judges living in where strict liability crimes are rare and generally only impose light penalties?

    1. Minnesota.

      Did you not read the article?

      1. Minnesota also has the lowest incarceration rate in the entire US.

  2. New Hampshire Republicans rejoice

    http://www.concordmonitor.com/…..-cm-030316

    Tasker, 30, of Nottingham, was detained Tuesday afternoon by state and local police after a weekslong investigation showed he used a Facebook account to lure the girl, 14, into a sexual encounter at a secluded location near Lucas Pond in Northwood, police said. A search of Tasker’s home also uncovered “vast amounts” of controlled drugs, including marijuana, hallucinogenic mushrooms and Suboxone, according to a police affidavit.

    1. Just a couple mexicans short of being a libertarian?

      1. Si. Although, IIRC, he’s a FSP darling, so maybe that counts.

    2. Not quite comparable, since Tasker knew the girl he was hitting on was underage. (Unless I seriously misunderstood the linked article.) But jeeze, whose brain storm was it to put this guy on the Children and Family Law Committee?

      1. Who knows. All I have is the article too, but I’m sure he’d have used the I”I didn’t know she was 14″ at some point.

  3. If this holds up, then this very well may be the first step in getting rid of strict liability for statutory cases. It sets the precedent for the one being charged not having to be omniscient. It’s only a small step away to start saying that folks who meet someone in an over 21 bar with an over 21 years old license can’t reasonably be expected to figure out the real age of the ‘victim’ either.

    1. Which would be good because people are not omniscient and one can’t reasonably be expected to know if someone is lying about their age.

      1. If the trade-off is between adults having to refrain from engaging in sexual intercourse with strangers vs. children getting raped with impunity, I’ll take the former any time. Statutory rape has to be strict liability because ignorance of age can always be feigned by the defendant.

        1. That’s what juries are for – to see if the defendant is lying. To make that defense, the accused will have to waive the 5th, take the stand, and be cross-examined by the prosecutor.

          1. You think juries are populated with expert lie detectors? The prosecution has to prove the defendant is lying beyond a reasonable doubt.

            Plus, taking the 5th can’t be regarded as evidence of guilt.

            1. Asserting an affirmative defense takes evidence , as it is the defendant’s burden – if you are going to assert “I thought she was ______ years old”, you are going to have a hard time without testifying.

          2. it’s not that often that sex offense cases reach the jury stage, even if a person is innocent. read the papers, innocence doesn’t always win.

            sex offenses have taken over for the ‘war on drugs’. this country is rabid about the thought of any sex offense now. and rarely does an accused win at a jury trial. and they had better have a butt ton of money if they are gonna take a sex offense charge to trial.

            when faced with a plea deal of 10yrs vs 30 or more years with a trial???? prosecutors love to stack charges don’t ya know, so they can add up the years tremendously.

        2. Fortunately, possibly, what you “would take” is irrelevant.
          “…better that one hundred guilty Persons should escape than that one innocent Person should suffer…” – Benjamin Franklin

          I don’t understand why you are on a libertarian forum.

        3. so you would be just fine if 20, 50, 100 or a countless number of people were convicted, jailed and labeled as sex offenders for possibly the rest of their lives? even if the partner they were gonna hook up with lied about their age? and maybe that partner who even had an ID that said they were at or over the age of consent?

          you are a special breed of vindictive and or stupid.

          people lie about their age it’s a fact!!! but you think that people should either be celibate or mind readers? way too often someone lies about their age and it’s the other person who is held at fault and given the shaft!!!

  4. I thought the point of strict liability in these cases was that it is impossible to prove that the defendant knew their conduct was illegal, even when they did know that. In statutory rape cases, the defendant could always claim he is just bad at telling people’s ages, so you have to have strict liability or you could never get any convictions.

    1. If the victim was victimized they will tell you that they told the accused their age and that will serve as evidence against the affirmitive defense. If the accused is a coach, teacher, or anyone who knew the child for more than a one night stand then knowledge of their age is easy to prove. Most rapes, especially statutory ones, occur between someone that has met the parents and can be clearly shown to know the child’s age. The only people who will not get prosecuted with the mens rea defense are people who’s victims refuse to cooperate because they don’t believe themselves victimized and also who have accused that didn’t know them beforehand. Basically, no, you won’t be able to prosecute the guy in the over twenty one bar for banging a chick who lied about her age and showed a fake id to back it up. I’m so sorry innocent people will stop having to go to jail.

      1. Or the 22 year old guy who met your 14 year old daughter in an online One Direction fan club forum and started hooking up with her after school. She’s not gonna testify against him because “you just don’t understand!”

        Lots of statutory rape cases are going to be of the “older boyfriend” variety, where the victim eschews victim status. Another reason for strict liability.

        1. What the hell is wrong with you Cyto – The whole point of the definition of rape is unconsentual sex, i.e. violence inflicted upon another. If a barely illegal person who can pass for legal purposefully lies about their age and dupes an adult into consentual sex, especially with a fake ID, do you really think that adult should suffer dire legal and social consequences worse than a fucking murderer, while that lying teen gets a slap on the wrist? Really?

  5. I mean if cops can get away with violating people’s rights because they thought the law said something that it didn’t, why can’t this be a defense also?

    1. Because they are 1st class citizens. You are 2nd class, at best.

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