Introduction

Statutory Rape

Introduction

Forcible rape punishes compulsion. In the ordinary prosecution the wrong is that the victim was made to submit by force or threat, was secretly drugged, or was unconscious, and the prosecutor must prove one of those circumstances. Model Penal Code § 213.1(1) shows the pattern. Paragraph (a) covers compelling submission by force or by threat of imminent death, serious bodily injury, extreme pain, or kidnapping. Paragraph (b) covers substantially impairing the female's power to appraise or control her conduct by administering drugs or intoxicants without her knowledge. Paragraph (c) covers intercourse with an unconscious female.¹ Each of those paragraphs describes something done to the victim that overrides or bypasses her will. Paragraph (d) is built differently, because it makes the male guilty of rape when the female is less than ten years old and mentions no force, no drugging, and no lack of consent.² Gross sexual imposition under § 213.1(2) also requires something beyond intercourse, such as a threat, known mental incapacity, or a deception about being her husband, so only the age prong dispenses with any added circumstance.³

That age-only structure is what the law calls statutory rape: unlawful sexual intercourse with a person under the age of consent set by statute, regardless of whether the act is against that person's will.⁴ The legislature's age line makes the act criminal, so nothing about how the encounter unfolded need be proved. The structure produces a puzzle that organizes this chapter. How can intercourse be a serious felony when nobody was forced and the defendant may honestly have believed the partner was an adult? The victim's willingness cannot answer the charge, since the offense does not ask about it, so the live defense is the defendant's belief about age. Whether that belief counts depends on whether the offense demands any culpable awareness of the victim's age at all. One drafting note belongs here as well. The Model Penal Code text speaks of a male actor and a female victim not his wife, and later sections treat that as the Code's drafting choice and return to gender-specific statutes when they take up why legislatures punish this conduct.⁵

The reading takes up three questions in order. The first is what the age element is and what it makes irrelevant. The second is whether a defendant may defend by saying he was mistaken about the victim's age, where a strict-liability default and a reasonable-mistake defense compete. The third is how the Code answers that second question through its under-ten prong and a companion rule on mistake of age. Because each of these questions assumes that the charge rests on the victim's age, the age element is the first thing a prosecutor must prove, and it is where the discussion begins.