STATE of Alaska, Petitioner,
Moses G. GUEST, and Jacob Y. Evan, Respondents
Supreme Court of Alaska
583 P.2d 836 (1978)
The question presented in the State's petition for review is whether an honest and reasonable mistake of fact regarding a victim's age may serve as a defense to a charge of statutory rape.
On April 7, 1977, the respondents, Moses Guest and Jacob Evan,
were charged with the statutory rape of T.D.G., age fifteen, in violation
of AS 11.15.120. [n. 1] . . . .
1. AS 11.15.120 provides in relevant part:On June 29, 1977, Guest moved the Superior Court, Judge Warren W. Taylor, presiding, to give the following instruction:
Rape. (a) a person who . . . (2) being 16 years of age or older, carnally knows and abuses a person under 16 years of age, is guilty of rape.
Respondents concede that in most jurisdictions a reasonable mistake
of age is not a [p. 838] defense to a charge of statutory rape.[n. 2] Although
the validity of this defense to a statutory rape charge has not been decided
in Alaska, we were presented with a similar issue in Anderson v. State,
384 P.2d 669 (Alaska 1963) where the charge was contributing to the delinquency
of a minor by a consensual act of sexual intercourse. We said that "(a)ppellant's
belief that prosecutrix was over the age of eighteen, even though it may
have some support, is no excuse" and "(p)ersons having illegal relations
with children do so at their (own) peril." Id. at 671.
2. . . . .We recognized in Speidel v. State, 460 P.2d 77 (Alaska 1969), that consciousness of wrongdoing is an essential element of penal liability. "It is said to be a universal rule that an injury can amount to a crime only when inflicted by intention that conduct cannot be criminal unless it is shown that one charged with criminal conduct had an awareness or consciousness of some wrongdoing." . . . .
This point of view has also been adopted by the 1978 revisors of the Alaska Criminal Code. Alaska Criminal Code revision (effective 1980) provides:
11.41.445. (b) In a prosecution under secs. 410-440 of this chapter, whenever a provision of law defining an offense depends upon a victim's being under a certain age, it is an affirmative defense that, at the time of the alleged offense, the defendant reasonably believed the victim to be that age or older, unless the victim was under 13 years of age at the time of the alleged offense.
Our opinion in Speidel stated that there are exceptions to the
general requirement of criminal intent which are categorized as "public
welfare" offenses. These exceptions are a rather narrow class of regulation,
"caused primarily by the industrial revolution, out of which grew the necessity
of imposing more stringent duties on those connected with particular industries,
trades, properties, or activities that affect public health, safety or
welfare." Speidel v. State, supra at 78. The penalties for the infraction
of these strict liability offenses are usually relatively small and conviction
of them carries no great opprobrium. Id. at 79. Statutory rape may not
appropriately be categorized as a public welfare offense. It is a serious
felony. If the offender is less than nineteen years of age, he may be imprisoned
for up to twenty years. If he is nineteen years of age or older, he may
be punished by imprisonment for any term of years.[n. 4]
4. AS 11.15.130 provides:We believe that the charge of statutory rape is legally unsupportable under the [p. 839] principles of Speidel, Alex And Kimoktoak unless a defense of reasonable mistake of age is allowed. To refuse such a defense would be to impose criminal liability without any criminal mental element. The defense of reasonable mistake of fact is generally allowed in criminal cases to permit the defendant to show that he lacked criminal intent. When that opportunity is foreclosed the result is strict criminal liability.
Punishment for rape. (a) A person 19 years of age or older convicted of rape upon his daughter, son, sister or brother, or upon a person under 16 years of age, is punishable by imprisonment in the penitentiary for any term of years.
(b) A person less than 19 years of age convicted for rape upon his daughter, son, sister or brother, or a person under 16 years of age, is punishable by imprisonment in the penitentiary for not more than 20 years.
(c) A person convicted of rape upon any other person is punishable by imprisonment in the penitentiary for not more than 20 years nor less than one year.
Although AS 11.15.120 is silent as to any requirement of intent, this is true of many felony statutes. The requirement of criminal intent is then commonly inferred. Kimoktoak v. State, supra, 584 P.2d at 30- 31; Thomas v. State, 522 P.2d 528, 530 n. 4 (Alaska 1974); Speidel v. State, supra at 79. In fact, in such cases, where the particular statute is not a public welfare type of offense, either a requirement of criminal intent must be read into the statute or it must be found unconstitutional. Kimoktoak v. State, supra, 584 P.2d at 29; Alex v. State, supra at 680-81; Speidel v. State, supra at 80. Since statutes should be construed where possible to avoid unconstitutionality, it is necessary here to infer a requirement of criminal intent.
It has been urged in other jurisdictions that where an offender
is aware he is committing an act of fornication he therefore has sufficient
criminal intent to justify a conviction for statutory rape because what
was done would have been unlawful under the facts as he thought them to
be. E. g., State v. Silva, 53 Haw. 232, 491 P.2d 1216, 1217 (1971). We
reject this view. While it is true that under such circumstances a mistake
of fact does not serve as a complete defense, we believe that it should
serve to reduce the offense to that which the offender would have been
guilty of had he not been mistaken. See Model Penal Code s 2.04(2) (Proposed
Official Draft 1962); [n. 9] LaFave & Scott, Supra note 5 at 360-62.
Thus, if an accused had a reasonable belief that the person with whom he
had sexual intercourse was sixteen years of age or older, he may not be
convicted of statutory rape. If, however, he did not have a reasonable
belief that the victim was eighteen years of age or older, he may still
be criminally liable for contribution to the delinquency of a minor. [n.
10] It is significant [p. 840] that the Alaska Statutes do not proscribe
fornication, and therefore, it may not be considered an offense of a lesser
9. Section 2.04(2) of the Model Penal Code provides:For the foregoing reasons, we hold that a charge of statutory rape is defensible where an honest and reasonable mistake of fact as to the victim's age is shown. Anderson v. State, supra, is overruled to the extent that its holding is inconsistent with the views expressed herein. The order of the superior court is affirmed.
(2) Although ignorance or mistake would otherwise afford a defense to the offense charged, the defense is not available if the defendant would be guilty of another offense had the situation been as he supposed. In such case, however, the ignorance or mistake of the defendant shall reduce the grade and degree of the offense of which he may be convicted to those of the offense of which he would be guilty had the situation been as he supposed.
10. AS 11.40.130 provides:
Contributing to delinquency of child.
(a) A person who commits an act, or omits the performance of a duty, which causes or tends to cause, encourage or contribute to the delinquency of a child under the age of 18 years, is guilty of a misdemeanor.
(b) A person who by threats, command or persuasion endeavors to induce a child under the age of 18 years to perform an act or follow a course of conduct which would cause or manifestly tend to cause him to become or remain a delinquent is guilty of a felony, and upon conviction is punishable by imprisonment for not less than one year nor more than two years.
For the purposes of this section, delinquency is defined in AS 11.40.150.