Statutory Rape. At the center of a long-standing debate on whether its commission should require proof of a criminal mens rea, the prosecution of statutory rape offers a revealing look at the struggle to demarcate the parameters of the public welfare offense doctrine. Specifically, with respect to statutory rape, disagreement is deep and entrenched on whether statutory rape should be categorized as a public welfare offense, which would render irrelevant defendant's lack of knowledge of the victim's age. And despite wholesale revamping of state statutory rape laws on issues of age, gender, and potential grading and punishment, the debate on whether to require a criminal mens rea or embrace strict liability continues. So, how has it come to pass that this particular crime has engendered such serious division of thought regarding the requirement of a mens rea? This Article argues that, fueled in part by a misplaced reliance on dicta from the landmark decision of Morissette v. United States, most states have concluded that statutory rape is a strict liability offense. But as this Article shows, the landscape has changed dramatically since Morissette was written in 1952. Like the child's puzzle book that asks the question, "Which item doesn't belong?" this Article argues that the public welfare offense model's application to statutory rape is, by current standards, strained and outmoded. Statutory rape as a strict liability crime only works because blameworthiness - a cornerstone of punishment - has been replaced by a different sensibility: the strict assumption of the risk that the actor bears when engaging in sexual activity. This paradigmatic shift from blameworthiness to assumption of the risk remains a vital rationale in statutory rape only if the actor can be expected to appreciate that engaging in a broad range of sexual activities may be proscribed by statute. As this Article demonstrates, because of Lawrence v. Texas and its progeny, it may no longer be accurate to say that engaging in sexual activity is the criminally risky business envisioned by the Morissette Court in 1952 when statutory rape was just one of many statutes criminalizing sexual activity. And without notice that engaging in adult sexual behavior may be subject to widespread regulation, this Article concludes that it is time for the United States Supreme Court to redefine the parameters of the public welfare offense doctrine as it applies to statutory rape and allow defendants to mount a reasonable mistake-of-age defense.

Recommended Citation

Carpenter, Catherine L. “On Statutory Rape, Strict Liability, and the Public Welfare Offense Model.” American University Law Review 53, no.2 (December 2003): 313-391.