Model Penal Code Approach

Model Penal Code Approach

The Model Penal Code handles age in two parts, and keeping them apart prevents most of the confusion this topic produces. The first part is the definition of rape for the youngest children in § 213.1(1)(d), which makes age alone enough for the offense. The second is a companion rule in § 213.6(1) on whether the defendant's belief about the child's age can excuse him, and its answer changes with the age line on which criminality depends.¹

The Code does not choose one theory of mistake and apply it everywhere. It settles the question age line by age line, which is the offense-by-offense method that critics of the broad moral-wrong theories recommend.² Earlier subsections met the Code's mistake rule while testing the traditional theories and while surveying reasonable-mistake statutes. Here the two parts are assembled in the order an exam answer should follow, with the offense first and the mistake rule second.

Rape of a Female Under Ten

The paragraphs ahead of (d) show what it leaves out. Paragraph (a) requires that the male compel her to submit by force or by a threat of imminent death, serious bodily injury, extreme pain, or kidnapping. Paragraph (b) requires that he substantially impair her power to appraise or control her conduct by secretly giving her drugs, intoxicants, or other means to prevent resistance, and paragraph (c) requires that she be unconscious.⁴ Each of those paragraphs identifies a way in which her will is overcome or absent. Paragraph (d) contains no such condition, because her age takes the place of all of them. No force, threat, impairment, or lack of consent need be shown, and her apparent willingness is no defense.

Age alone can carry the offense because the rule descends from an early English statute that made carnal knowledge of a child under ten a felony with or without her consent, on the ground that a child that young should be regarded by the law as incapable of giving effective consent.⁵ If the law treats her consent as legally ineffective, asking whether she agreed would test a fact the law has already declared meaningless. The Code puts the line at ten because the case for conclusive incapacity is strongest there. Many American statutes later raised the age of conclusive incapacity to eleven, twelve, thirteen, fourteen, or higher, and that raised a problem of relative culpability: sex with a girl below ten or twelve is plainly dangerous and wrong, but with an adolescent it is not always clear that it is.⁶ A line at ten keeps the conclusive rule within the group for whom that doubt does not arise.

Two features of the text remain. The grading language that follows paragraph (d) applies by its terms to rape under the subsection: the offense is a felony of the second degree unless the actor inflicts serious bodily injury in the course of it, or the victim was not a voluntary social companion of the actor on the occasion and had not previously permitted him sexual liberties, in which cases it is a felony of the first degree.⁷ The definition is also written for a male actor and a female victim and excludes the actor's wife. Many newer statutes use gender-neutral terms, and most states have removed or limited the marital exemption that the “not his wife” limit reflects.⁸ On a stem that uses the Code's wording, apply the text as written.

Mistake of Age Under the Code

Paragraph (d) says nothing about what the defendant believed, so a second rule is needed, and § 213.6(1) supplies it. When the criminality of the conduct depends on the child's being below ten, it is no defense that the actor believed the child to be older, and the Code confines that strict rule to the age of ten and no other.¹⁰ The result is two tiers. Reasonable mistake is no defense when the age at issue is the lower age that determines whether the more serious version of the crime has occurred, and it is a defense when the age at issue is a higher age that sets the very upper limit of the crime.¹¹

Each tier has its own reason. At the lower tier, no credible error about the age of a child under ten could make the conduct anything less than a dramatic departure from societal norms.¹² A mistake defense would therefore add almost nothing to fairness, since a defendant who claims to have taken such a child for an older person asks the jury to accept an error no ordinary observer would make, and the rule spares the trial a contest over the child's size, manner, and statements. At the upper tier the reasoning reverses. Where the age line sits in the high teens, adolescents just below it can look and sound like adults, so honest and careful errors occur. A defendant who reasonably but mistakenly believes his partner is above that line “evidences no abnormality, no willingness to take advantage of immaturity, no propensity to corruption of minors.”¹³ The offense exists to punish exploitation of the immature, so a conviction would fall on a person who showed none of the attitude the offense targets.

The Code reaches strict liability at ten by a judgment about that particular age. It does not reach it by accepting the lesser legal wrong or moral wrong theories, which it rejects as general principles.¹⁴ An answer defending the under-ten rule should therefore rest on the absence of any credible error at that age, and should not claim that the defendant meant some lesser wrong anyway. The strict rule is also confined to the under-ten line, so a student who carries it to every age line in the Code has misread the design.

Rape of a Female Under Ten

Dropping the will from the definition makes sense once the premise is clear. The force-based paragraphs exist because intercourse becomes the grave wrong of rape when a person's agreement is overridden or absent. A child under ten is treated as unable to give meaningful agreement at all, so the wrong is complete when the act occurs, with force or without it. That premise also removes an incentive problem. If consent were open to proof, the defense would have every reason to build a record of the child's apparent willingness, and an adult who had coaxed a young child into passivity would profit from the very compliance he produced. Making age sufficient closes off that contest and spares the child from being questioned about her own conduct. The Code reflects the gravity of the act by calling it rape and grading it on the same scale as forcible rape, a second-degree felony in the ordinary case, instead of placing it in a lesser category.¹⁸

The line sits at ten because below that age no plausible account of the situation makes intercourse anything less than a serious departure from social norms. The text says less than ten, so the paragraph covers a girl of nine and does not cover a girl who has reached her tenth birthday.¹⁹ The result is a sharp edge that exam stems like to test, and a girl who is exactly ten falls outside paragraph (d).

The grading language that follows paragraph (d) governs the whole subsection, so it applies to this offense by its terms. Rape is a felony of the second degree unless the actor inflicts serious bodily injury on anyone in the course of the crime, or unless the victim was not a voluntary social companion of the actor on the occasion and had not previously permitted him sexual liberties. In either of those cases the offense is a felony of the first degree.²⁰ The second aggravator has two parts joined by "and," so the girl must both have been a stranger to the occasion in that sense and have given no earlier sexual liberties. The drafting was written for the whole subsection and not only for paragraph (d), but an answer that applies the Code's text should apply the grading clause as written.

The neighboring offense shows how much paragraph (d) leaves out. Section 213.1(2) makes a third-degree felony of intercourse with a female not his wife when the male compels her by a threat that would prevent resistance by a woman of ordinary resolution. It reaches the same offense when he knows she has a mental disease or defect that leaves her unable to appraise the nature of her conduct, and when he knows she is unaware that a sexual act is being committed or submits because she mistakenly supposes he is her husband.²¹ Every route in that provision requires proof of compulsion, or of the actor's knowledge of an incapacity or a deception. Paragraph (d) requires none of these and carries a higher grade. A stem about a very young child should therefore be matched to paragraph (d) by age and should not be forced through the compulsion-and-knowledge structure of the lesser offense.

Two features of the wording complete the picture. The definition begins with a male actor and a female victim, so by its terms it describes a male who has intercourse with a female. It also excludes a female who is the actor's wife, a limit the drafters wrote into the text and that an exam answer should simply apply as written.²² Whether an actor's belief about the girl's age can excuse him is a different question from whether the elements are met, and the next section takes it up.

Mistake of Age Under the Code

Earlier sections set out the split on this question. Most jurisdictions treat the victim's age as a matter of strict liability, so that no belief about it defeats guilt however reasonable it was, while a growing number allow a defense when the belief was reasonable.²⁴ The Model Penal Code does not take either side for the whole offense. Section 213.6(1) divides the question by the age on which criminality depends. When criminality depends on the child's being below ten, it is no defense that the actor did not know her age or reasonably believed her to be older. When the age at issue is a higher one that sets the upper limit of the crime, a reasonable belief that the partner was above it is a defense.²⁵ The Code is therefore strict about age at the youngest line and nowhere else.²⁶

Paragraph (d) of § 213.1(1), covered in the previous section, supplies the elements of rape of a female under ten and says nothing about what the actor believed.²⁷ Section 213.6(1) fills that gap. A problem about a young victim therefore needs both provisions: the first establishes the offense, and the second decides whether the actor's belief about her age matters at all.

The two tiers rest on different judgments about how an error could arise. At the lower line, the Code's commentary reasons that “no credible error regarding the age of a child in fact less than 10 years old would render the actor’s conduct anything less than a dramatic departure from societal norms.”²⁸ A mistake defense at that age would protect almost no one who deserves protection, and it would invite a trial over the child's size, manner, and statements, with the child questioned about how old she seemed. The upper line reverses the reasoning. Where the line sits in the high teens, a person just below it can look and sound like an adult, so honest and careful errors do occur. The defendant who reasonably but mistakenly believes his partner is above that line, in the commentary's words, “evidences no abnormality, no willingness to take advantage of immaturity, no propensity to corruption of minors.”²⁹ The offense exists to punish the exploitation of immaturity, so a conviction there would fall on someone who lacks the attitude the offense targets.

The Code reaches strict liability at ten by a judgment about that one age. The lesser legal wrong and moral wrong theories would deny the defense whenever the mistaken defendant still thought he was doing something wrong anyway, and the Code rejects both as general principles in favor of an offense-by-offense judgment.³⁰ Its general provision on mistake likewise rejects the reasoning of R. v. Prince, the English decision that denied a defense of mistaken age because the defendant still meant to do a wrong of some kind.³¹ An answer defending the under-ten rule should therefore rest on the absence of any credible error at that age.

The line of ten is the only place where that result holds. In an illustration of the Code at work, Mike has intercourse with Jenna, who is 17 and whom every sign indicated was of age.³² The age on which his criminality depends sits far above ten, so § 213.6(1) does not bar a mistake defense. The offense is not strict liability as to age in a Code jurisdiction, and his reasonable belief can defeat the charge.³³ The prosecution's usual reply is that statutory rape is a public welfare offense, and that strict liability keeps predators from pleading mistaken age.³⁴ The Code accepts that reply at ten, where the reasoning has force, and declines it above ten, where it would convict a defendant who acted as prudently as Mike did. What separates the eight-year-old case from Mike's case is the age line on which criminality depends. Above ten, the partner's appearance and statements become the evidence from which the reasonableness of the belief is judged.

The defense at the higher line has a limit, and the text of the Code shifts over time. The 1962 Code allowed the defense when criminality turned on a critical age greater than ten, but required the defendant to prove that the mistake was reasonable.³⁵ The American Law Institute's 2021 revision of Article 213 moves further toward subjective fault. It prohibits sexual penetration with a person younger than 16 only when the actor is more than five years older and recklessly disregards the risk that the other person is under 16, which treats mistake of age like any other mistake of fact.³⁶ Liability under that text follows from the actor's own disregard of a risk, so a defendant who never perceived the risk falls outside the offense even if a reasonable person would have noticed it. A stem that says nothing about the revision calls for the 1962 rule in § 213.6(1), and a stem that describes a five-year gap and recklessness calls for the revision.

Students lose points here by carrying the strict rule upward, because the Code bars the mistake defense only at the line of ten. The analysis is best run in a fixed order that begins with the line itself.