Garnett v. State

332 Md. 571, 632 A.2d 797 (Md. App. 1993)

Court of Appeals of Maryland.


Raymond Leonard Garnett, the defendant, was convicted in the Circuit Court, Montgomery County, of second-degree rape under the statute proscribing sexual intercourse between persons under 14 and another at least four years older than the victim. Garnett appealed. The Court of Appeals affirmed.

MURPHY, Chief Judge.


Raymond Lennard Garnett is a young retarded man. At the time of the incident in question he was 20 years old. He has an I.Q. of 52. His guidance counselor from the Montgomery County public school system, Cynthia Parker, described him as a mildly retarded person who read on the third-grade level, did arithmetic on the 5th-grade level, and interacted with others socially at school at the level of someone 11 or 12 years of age. Ms. Parker added that Raymond attended special education classes and for at least one period of time was educated at home when he was afraid to return to school due to his classmates' taunting. Because he could not understand the duties of the jobs given him, he failed to complete vocational assignments; he sometimes lost his way to work. As Raymond was unable to pass any of the State's functional tests required for graduation, he received only a certificate of attendance rather than a high-school diploma.

          In November or December 1990, a friend introduced Raymond to Erica Frazier, then aged 13; the two subsequently talked occasionally by telephone. On February 28, 1991, Raymond, apparently wishing to call for a ride home, approached the girl's house at about nine o'clock in the evening. Erica opened her bedroom window, through which Raymond entered; he testified that "she just told me to get a ladder and climb up her window." The two talked, and later engaged in sexual intercourse. Raymond left at about 4:30 a.m. the following morning. On November 19, 1991, Erica gave birth to a baby, of which Raymond is the biological father.

          Raymond was tried before the Circuit Court for Montgomery County (Miller, J.) on one count of second degree rape under § 463(a)(3) proscribing sexual intercourse between a person under 14 and another at least four years older than the complainant. At trial, the defense twice proffered evidence to the effect that Erica herself and her friends had previously told Raymond that she was 16 years old, and that he had acted with that belief. The trial court excluded such evidence as immaterial, explaining:

Under 463, the only two requirements as relate to this case are that there was vaginal intercourse, [and] that ... Ms. Frazier was under 14 years of age and that ... Mr. Garnett was at least four years older than she. In the Court's opinion, consent is no defense to this charge. The victim's representation as to her age and the defendant's belief, if it existed, that she was not under age, what amounts to what otherwise might be termed a good faith defense, is in fact no defense to what amount[s] to statutory rape. It is in the Court's opinion a strict liability offense.


The court found Raymond guilty. It sentenced him to a term of five years in prison, suspended the sentence and imposed five years of probation, and ordered that he pay restitution to Erica and the Frazier family. Raymond noted an appeal; we granted certiorari prior to intermediate appellate review by the Court of Special Appeals to consider the important issue presented in the case.


Maryland's "statutory rape" law prohibiting sexual intercourse with an underage person is codified in Maryland Code (1957, 1992 Repl.Vol.) Art. 27, § 463, which reads in full:

"Second degree rape.

(a) What constitutes.--A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person:

(1) By force or threat of force against the will and without the consent of the other person; or

(2) Who is mentally defective, mentally incapacitated, or physically helpless, and the person performing the act knows or should reasonably know the other person is mentally defective, mentally incapacitated, or physically helpless; or

(3) Who is under 14 years of age and the person performing the act is at least four years older than the victim.

(b) Penalty.--Any person violating the provisions of this section is guilty of a felony and upon conviction is subject to imprisonment for a period of not more than 20 years."


…Now we consider whether under the present statute, the State must prove that a defendant knew the complaining witness was younger than 14 and, in a related question, whether it was error at trial to exclude evidence that he had been told, and believed, that she was 16 years old….

          Section 463(a)(3) does not expressly set forth a requirement that the accused have acted with a criminal state of mind, or mens rea. The State insists that the statute, by design, defines a strict liability offense, and that its essential elements were met in the instant case when Raymond, age 20, engaged in vaginal intercourse with Erica, a girl under 14 and more than 4 years his junior. Raymond replies that the criminal law exists to assess and punish morally culpable behavior. He says such culpability was absent here. He asks us either to engraft onto subsection (a)(3) an implicit mens rea requirement, or to recognize an affirmative defense of reasonable mistake as to the complainant's age. Raymond argues that it is unjust, under the circumstances of this case which led him to think his conduct lawful, to brand him a felon and rapist.

Raymond asserts that the events of this case were inconsistent with the criminal sexual exploitation of a minor by an adult. As earlier observed, Raymond entered Erica's bedroom at the girl's invitation; she directed him to use a ladder to reach her window. They engaged voluntarily in sexual intercourse. They remained together in the room for more than seven hours before Raymond departed at dawn. With an I.Q. of 52, Raymond functioned at approximately the same level as the 13-year-old Erica; he was mentally an adolescent in an adult's body. Arguably, had Raymond's chronological age, 20, matched his socio-intellectual age, about 12, he and Erica would have fallen well within the four-year age difference obviating a violation of the statute, and Raymond would not have been charged with any crime at all.

The precise legal issue here rests on Raymond's unsuccessful efforts to introduce into evidence testimony that Erica and her friends had told him she was 16 years old, the age of consent to sexual relations, and that he believed them. Thus the trial court did not permit him to raise a defense of reasonable mistake of Erica's age, by which defense Raymond would have asserted that he acted innocently without a criminal design. At common law, a crime occurred only upon the concurrence of an individual's act and his guilty state of mind. In this regard, it is well understood that generally there are two components of every crime, the actus reus or guilty act and the mens rea or the guilty mind or mental state accompanying a forbidden act. The requirement that an accused have acted with a culpable mental state is an axiom of criminal jurisprudence….

To be sure, legislative bodies since the mid-19th century have created strict liability criminal offenses requiring no mens rea. Almost all such statutes responded to the demands of public health and welfare arising from the complexities of society after the Industrial Revolution. Typically misdemeanors involving only fines or other light penalties, these strict liability laws regulated food, milk, liquor, medicines and drugs, securities, motor vehicles and traffic, the labeling of goods for sale, and the like. See Richard G. Singer, The Resurgence of Mens Rea: III--The Rise and Fall of Strict Criminal Liability, 30 B.C.L.Rev. 337, 340-373 (1989) (suggesting, however, that strict liability doctrine in the United States in the late 19th century was motivated largely by moralistic fervor, such as found in the prohibitionist movement). Statutory rape, carrying the stigma of felony as well as a potential sentence of 20 years in prison, contrasts markedly with the other strict liability regulatory offenses and their light penalties.

Modern scholars generally reject the concept of strict criminal liability…. Conscious of the disfavor in which strict criminal liability resides, the Model Penal Code states generally as a minimum requirement of culpability that a person is not guilty of a criminal offense unless he acts purposely, knowingly, recklessly, or negligently, i.e., with some degree of mens rea. The Code allows generally for a defense of ignorance or mistake of fact negating mens rea. The Model Penal Code generally recognizes strict liability for offenses deemed "violations," defined as wrongs subject only to a fine, forfeiture, or other civil penalty upon conviction, and not giving rise to any legal disability.

          With respect to the law of statutory rape, the Model Penal Code strikes a compromise with its general policy against strict liability crimes. The Code prohibits the defense of ignorance or a reasonable mistake of age when the victim is below the age of ten, but allows it when the critical age stipulated in the offense is higher than ten. Model Penal Code, supra, at §§ 213.1, 213.6(1). The drafters of the Code implicitly concede that sexual conduct with a child of such extreme youth would, at the very least, spring from a criminally negligent state of mind. The available defense of reasonable mistake of age for complainants older than ten requires that the defendant not have acted out of criminal negligence.

          The commentators similarly disapprove of statutory rape as a strict liability crime. In addition to the arguments discussed above, they observe that statutory rape prosecutions often proceed even when the defendant's judgment as to the age of the complainant is warranted by her appearance, her sexual sophistication, her verbal misrepresentations, and the defendant's careful attempts to ascertain her true age. Voluntary intercourse with a sexually mature teen-ager lacks the features of psychic abnormality, exploitation, or physical danger that accompanies such conduct with children.

          Two sub-parts of the rationale underlying strict criminal liability require further analysis at this point. Statutory rape laws are often justified on the "lesser legal wrong" theory or the "moral wrong" theory; by such reasoning, the defendant acting without mens rea nonetheless deserves punishment for having committed a lesser crime, fornication, or for having violated moral teachings that prohibit sex outside of marriage. Maryland has no law against fornication. It is not a crime in this state. Moreover, the criminalization of an act, performed without a guilty mind, deemed immoral by some members of the community rests uneasily on subjective and shifting norms. "[D]etermining precisely what the 'community ethic' actually is [is] not an easy task in a heterogeneous society in which our public pronouncements about morality often are not synonymous with our private conduct."…

We acknowledge here that it is uncertain to what extent Raymond's intellectual and social retardation may have impaired his ability to comprehend imperatives of sexual morality in any case.

The legislatures of 17 states have enacted laws permitting a mistake of age defense in some form in cases of sexual offenses with underage persons…. In the landmark case of People v. Hernandez, 61 Cal.2d 529, 39 Cal.Rptr. 361, 393 P.2d 673 (1964), the California Supreme Court held that, absent a legislative directive to the contrary, a charge of statutory rape was defensible wherein a criminal intent was lacking; it reversed the trial court's refusal to permit the defendant to present evidence of his good faith, reasonable belief that the complaining witness had reached the age of consent. In so doing, the court first questioned the assumption that age alone confers a sophistication sufficient to create legitimate consent to sexual relations: "the sexually experienced 15-year-old may be far more acutely aware of the implications of sexual intercourse than her sheltered cousin who is beyond the age of consent." The court then rejected the traditional view that those who engage in sex with young persons do so at their peril, assuming the risk that their partners are underage:

"[I]f [the perpetrator] participates in a mutual act of sexual intercourse, believing his partner to be beyond the age of consent, with reasonable grounds for such belief, where is his criminal intent? In such circumstances he has not consciously taken any risk. Instead he has subjectively eliminated the risk by satisfying himself on reasonable evidence that the crime cannot be committed. If it occurs that he has been mislead, we cannot realistically conclude for such reason alone the intent with which he undertook the act suddenly becomes more heinous.... The courts have uniformly failed to satisfactorily explain the nature of the criminal intent present in the mind of one who in good faith believes he has obtained a lawful consent before engaging in the prohibited act."


The Supreme Court of Alaska has held that a charge of statutory rape is legally unsupportable unless a defense of reasonable mistake of age is allowed. State v. Guest, 583 P.2d 836, 838-839 (Alaska 1978). The Supreme Court of Utah construed the applicable unlawful sexual intercourse statute to mean that a conviction could not result unless the state proved a criminal state of mind as to each element of the offense, including the victim's age. State v. Elton, 680 P.2d 727, 729 (Utah 1984) (Utah Criminal Code since amended to disallow mistake of age as a defense to unlawful sexual intercourse). [FN6] The Supreme Court of New Mexico determined that a defendant should have been permitted at trial to present a defense that his partner in consensual sex told him she was 17, not 15, that this had been confirmed to him by others, and that he had acted under that mistaken belief. Perez v. State, 111 N.M. 160, 803 P.2d 249, 250-251 (1990). Two-fifths of the states, therefore, now recognize the defense in cases of statutory sexual offenses.

We think it sufficiently clear, however, that Maryland's second degree rape statute defines a strict liability offense that does not require the State to prove mens rea; it makes no allowance for a mistake-of- age defense. The plain language of § 463, viewed in its entirety, and the legislative history of its creation lead to this conclusion….

          Section 463(a)(3) prohibiting sexual intercourse with underage persons makes no reference to the actor's knowledge, belief, or other state of mind. As we see it, this silence as to mens rea results from legislative design. First, subsection (a)(3) stands in stark contrast to the provision immediately before it, subsection (a)(2) prohibiting vaginal intercourse with incapacitated or helpless persons. In subsection (a)(2), the Legislature expressly provided as an element of the offense that "the person performing the act knows or should reasonably know the other person is mentally defective, mentally incapacitated, or physically helpless." Code, § 463(a)(2) (emphasis added). In drafting this subsection, the Legislature showed itself perfectly capable of recognizing and allowing for a defense that obviates criminal intent; if the defendant objectively did not understand that the sex partner was impaired, there is no crime. That it chose not to include similar language in subsection (a)(3) indicates that the Legislature aimed to make statutory rape with underage persons a more severe prohibition based on strict criminal liability.

          Second, an examination of the drafting history of § 463 during the 1976 revision of Maryland's sexual offense laws reveals that the statute was viewed as one of strict liability from its inception and throughout the amendment process. As originally proposed, Senate Bill 358 defined as a sexual offense in the first degree a sex act committed with a person less than 14 years old by an actor four or more years older. The Senate Judicial Proceedings Committee then offered a series of amendments to the bill. Among them, Amendment # 13 reduced the stipulated age of the victim from less than 14 to 12 or less. Amendment # 16 then added a provision defining a sexual offense in the second degree as a sex act with another "under 14 years of age, which age the person performing the sexual act knows or should know." These initial amendments suggest that, at the very earliest stages of the bill's life, the Legislature distinguished between some form of strict criminal liability, applicable to offenses where the victim was age 12 or under, and a lesser offense with a mens rea requirement when the victim was between the ages of 12 and 14.

          Senate Bill 358 in its amended form was passed by the Senate on March 11, 1976. 1976 Senate Journal, at 1566. The House of Delegates' Judiciary Committee, however, then proposed changes of its own. It rejected the Senate amendments, and defined an offense of rape, without a mens rea requirement, for sexual acts performed with someone under the age of 14. The Senate concurred in the House amendments and S.B. 358 became law. Thus the Legislature explicitly raised, considered, and then explicitly jettisoned any notion of a mens rea element with respect to the complainant's age in enacting the law that formed the basis of current § 463(a)(3). In the light of such legislative action, we must inevitably conclude that the current law imposes strict liability on its violators.

This interpretation is consistent with the traditional view of statutory rape as a strict liability crime designed to protect young persons from the dangers of sexual exploitation by adults, loss of chastity, physical injury, and, in the case of girls, pregnancy. The majority of states retain statutes which impose strict liability for sexual acts with underage complainants. We observe again, as earlier, that even among those states providing for a mistake-of-age defense in some instances, the defense often is not available where the sex partner is 14 years old or less; the complaining witness in the instant case was only 13. The majority of appellate courts, including the Court of Special Appeals, have held statutory rape to be a strict liability crime.

          Maryland's second degree rape statute is by nature a creature of legislation. Any new provision introducing an element of mens rea, or permitting a defense of reasonable mistake of age, with respect to the offense of sexual intercourse with a person less than 14, should properly result from an act of the Legislature itself, rather than judicial fiat. Until then, defendants in extraordinary cases, like Raymond, will rely upon the tempering discretion of the trial court at sentencing.




…I do not dispute that the legislative history of Maryland Code (1957, 1992 Repl.Vol.), Art. 27, section 463 may be read to support the majority's interpretation that subsection (a)(3) [FN1] was intended to be a strict liability statute. See majority opinion at 804. Nor do I disagree that it is in the public interest to protect the sexually naive child from the adverse physical, emotional, or psychological effects of sexual relations. I do not believe, however, that the General Assembly, in every case, whatever the nature of the crime and no matter how harsh the potential penalty, can subject a defendant to strict criminal liability. To hold, as a matter of law, that section 463(a)(3) does not require the State to prove that a defendant possessed the necessary mental state to commit the crime, i.e. knowingly engaged in sexual relations with a female under 14, or that the defendant may not litigate that issue in defense, "offends a principle of justice so rooted in the traditions of conscience of our people as to be ranked as fundamental" and is, therefore, inconsistent with due process.

In…[this] case…, according to the defendant, he intended to have sex with a 16, not a 13, year old girl. This mistake of fact was prompted, he said, by the prosecutrix herself; she and her friends told him that she was 16 years old. Because he was mistaken as to the prosecutrix's age, he submits, he is certainly less culpable than the person who knows that the minor is 13 years old, but nonetheless engages in sexual relations with her. Notwithstanding, the majority has construed section 463(a)(3) to exclude any proof of knowledge or intent. But for that construction, the proffered defense would be viable. I would hold that the State is not relieved of its burden to prove the defendant's intent or knowledge in a statutory rape case and, therefore, that the defendant may defend on the basis that he was mistaken as to the age of the prosecutrix. Generally, a culpable mental state, often referred to as mens rea, or intent, is, and long has been, an essential element of a criminal offense. A crime ordinarily consists of prohibited conduct and a culpable mental state; a wrongful act and a wrongful intent must concur to constitute what the law deems a crime, the purpose being to avoid criminal liability for innocent or inadvertent conduct. Historically, therefore, unless the actor also harbored an evil, or otherwise culpable, mind, he or she was not guilty of any crime.

          The Supreme Court in Morissette, recognized that ordinarily, a defendant cannot be convicted when he or she lacks the mental state which is an element of the offense charged. That concept--crime as a compound concept--gained early acceptance in the English Common law and "took deep and early root in American soil." In that case, Mr. Justice Jackson stated the proposition thusly:

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child's familiar exculpatory "But I didn't mean to," and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution. Unqualified acceptance of this doctrine by English common law in the Eighteenth Century was indicated by Blackstone's sweeping statement that to constitute any crime there must first be a "vicious will."


…More recently, in Anderson v. State, 328 Md. 426, 444, 614 A.2d 963, 972 (1992), we held that the trial court improperly convicted the defendant for carrying concealed, a utility knife without considering the intent with which the utility knife was being carried. Noting that the utility knife could be used both as a tool and as a weapon, we rejected the State's argument that no intent was required. We said instead that, when the object is not a dangerous weapon per se, to convict a defendant of carrying a concealed dangerous weapon requires proof that the defendant intended to use the object as a weapon.

          Although it recognized that Congress could dispense with the intent requirement if it did so specifically, the Court made clear that that power was not without limit. Thus, when a legislature wants to eliminate intent as an element of a particular crime, it should expressly so state in the statute. Legislative imposition of strict criminal liability, however, must be within constitutional limits; it cannot be permitted to violate the Due Process requirement of the Fourteenth Amendment, or a comparable state constitutional provision.

Strict liability crimes are recognized exceptions to the "guilty mind" rule in that they do not require the actor to possess a guilty mind, or the mens rea, to commit a crime. His or her state of mind being irrelevant, the actor is guilty of the crime at the moment that he or she does the prohibited act.

In the evolution of the statutory criminal law, two classes of strict liability crimes have emerged. One of them consists of "public welfare" offenses. Typical of this class are statutes involving, for example, the sale of food, drugs, liquor, and traffic offenses, designed to protect the health, safety, and welfare of the community at large; violation of such statutes "depend on no mental element but consist[s] only of forbidden acts or omissions." In the case of public welfare offenses, strict liability is justified on several bases, including: (1) only strict liability can deter profit-driven manufacturers from ignoring the well-being of the consuming public; (2) an inquiry into mens rea would exhaust the resources of the courts; (3) imposition of strict liability is not inconsistent with the moral underpinnings of the criminal law because the penalties are small and carry no stigma; and (4) the legislature is constitutionally empowered to create strict liability crimes for public welfare offenses….

The second class of strict liability offenses, having a different justification than public welfare offenses, consists of narcotic, bigamy, adultery, and statutory rape crimes. State legislatures have historically used two theories to justify imposing strict liability in this class of offense: "lesser legal wrong" and "moral wrong." The lesser legal wrong theory posits that a defendant who actually intended to do some legal or moral wrong is guilty not only of the crime intended but of a greater crime of which he or she may not have the requisite mental state….

          A man who engages in consensual intercourse in the reasonable belief that his partner has reached [the age of consent] evidences no abnormality, no willingness to take advantage of immaturity, no propensity to corruption of minors. In short, he has demonstrated neither intent nor inclination to violate any of the interests that the law of statutory rape seeks to protect. At most, he has disregarded religious precept or social convention. In terms of mental culpability, his conduct is indistinguishable from that of any other person who engages in fornication. Whether he should be punished at all depends on a judgment about continuing fornication as a criminal offense, but at least he should not be subject to felony sanctions for statutory rape.

In utilizing the moral wrong theory, State legislatures seek to justify strict criminal liability for statutory rape when non-marital sexual intercourse is not a crime [Fornication is not a crime in Maryland.] on the basis of society's characterization of it as immoral or wrong, i.e., malum in se. The intent to commit such immoral acts supplies the mens rea for the related, but unintended crime; the outrage upon public decency or good morals, not conduct that is wrong only because it is prohibited by legislation, i.e., malum prohibitum, is the predicate.

There are significant problems with the moral wrong theory. First, it is questionable whether morality should be the basis for legislation or interpretation of the law. Immorality is not synonymous with illegality; intent to do an immoral act does not equate to intent to do a criminal act. Inferring criminal intent from immorality, especially when the accused is not even aware that the act is criminal, seems unjustifiable and unfair. In addition, the values and morals of society are ever evolving. Because sexual intercourse between consenting unmarried adults and minors who have reached the age of consent is not now clearly considered to be immoral, the moral wrong theory does not support strict criminal liability for statutory rape.

          Second, classifying an act as immoral, in and of itself, divorced from any consideration of the actor's intention, is contrary to the general consensus of what makes an act moral or immoral. Ordinarily, an act is either moral or immoral depending on the intention of the actor. Holmes, Early Forms of Liability, in The Common Law 7 ("Even a dog distinguishes between being stumbled over and being kicked.").

          Third, the assertion that the act alone will suffice for liability without the necessity of proving criminal intent is contrary to the traditional demand of the criminal law that only the act plus criminal intent is sufficient to constitute a crime. "Moral duties should not be identified with criminal duties," and, thus, when fornication is itself not criminal it should not become criminal merely because the defendant has made a reasonable mistake about the age of the girl with whom he has had intercourse.

          Therefore, although in the case sub judice, the defendant engaged in sexual relations with a girl 13 years old, a minor below the age of consent, his conduct is not malum in se, and, so, strict liability is not justified.

Generally, a mistake of fact negates the mental state required to establish a material element of the crime. A person who engages in proscribed conduct is relieved of criminal liability if, because of ignorance or mistake of fact, he or she did not entertain the culpable mental state required for the commission of the offense.

Statutory rape is defined as sexual intercourse, by a person four or more years older, with a person under the age of 14. That statute conclusively presumes that a person under that age is incapable of legally consenting to sexual intercourse. That the female is incapable of consenting means that any act of intercourse in which she engages, even with her consent, is conclusively presumed to have been against her will. Consequently, a person engaging in intercourse with a female, whom he knows to be under 14 may not set up her consent as a defense. This does not mean, however, that one who does not know that the female is under 14 should not be able to set up his mistake of fact as a defense. This is because the closer a minor is to the age of consent, the more the appearance and behavior of that minor can be expected to be consistent with persons who have attained the age of consent. Indeed, one may plausibly mistake a minor 13 years old as being of the statutory age of consent.

The inadequacy of age as a demarcation line actually points up the flaws in the strict criminal liability analysis. First, it would seem reasonable to allow the accused to introduce evidence of the minor's maturity, sophistication, and past sexual experience, since maturity, not age, is the chief concern, age being but a factor. Second, the age standard (unless it is low enough) with its universal application draws an arbitrary line, resulting in the imposition of disproportionate penalties. Thus, for example, pursuant to section 463(a)(3) sexual intercourse with a person under 14 years of age, if the actor is at least four years older than the victim, is a second degree rape offense punishable by a possible twenty years imprisonment. Under section 464C, defining a fourth degree sexual offense, the same conduct if committed with a child 14 or 15 is punishable by a possible 1 year sentence. Thus, the law creates a potential disparity of up to 19 years for a difference of as little as one day in the victim's age. Third, placing the age standard too high may result in the anomaly of a female being legally able to consent to marriage, but unable to consent to intercourse.

          A girl 13 years old may appear to be, and, in fact, may represent herself as being, over 16. If she should appear to be the age represented, a defendant may suppose reasonably that he received a valid consent from his partner, whom he mistakenly believes to be of legal age, only to find that her consent is legally invalid. In this situation, the majority holds, his reasonable belief as to the girl's age and consequent lack of criminal intent are no defense; the act alone suffices to establish guilt. But it is when the minor plausibly may represent that she has attained the age of consent that need for a defendant to be able to present a defense based on his or her belief that the minor was of the age to consent is the greatest….

Thus, it has been observed that, "by the middle teens most girls have reached a point of maturity which realistically enables them to give meaningful, although not legal, consent." It is for this reason that "intercourse with a girl who is in her middle to late teens lacks the qualities of abnormality and physical danger that are present when she is still a child.... It is clear that the element of 'victimization' decreases as the girl grows older and more sophisticated."…

          In [this] case… the defendant does not dispute that he had sexual relations with the 13 year old prosecutrix. He seeks only to be able to defend himself against being labeled a rapist. He may only do so, however, if he is allowed to present evidence that he acted under a mistake of fact as to the prosecutrix's age, that he believed, and reasonably so, that she was above the age of consent. The proof he proposed to present to prove his defense was that the victim and her friends told him that the victim was 16 years old. He should have been allowed to show that he lacked the "guilty mind" to have sex with a 13 year old.

A State Legislature does have the power to define the elements of the criminal offenses recognized within its jurisdiction. In fact, the Supreme Court has said: "There is wide latitude in lawmakers to declare an offense and to exclude elements of knowledge and diligence from its definition." Accordingly, a State legislature may constitutionally prescribe strict liability for public welfare offenses, discussed supra, committed within its boundaries. But "far more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement."

          To recognize that a State legislature may, in defining criminal offenses, exclude mens rea, is not to suggest that it may do so with absolute impunity, without any limitation whatsoever. The validity of such a statute necessarily will depend on whether it violates any provision of the federal constitution. It is ordinarily the due process clause, either of the federal constitution, or the corresponding provision of the appropriate state constitution, which will determine its validity.

The phrase "Law of the land" has been held to be equivalent to "due process" of the law, as used in the 14th Amendment to the United States Constitution. In that regard, therefore, Supreme Court cases on that subject are practically direct authority for the meaning of the Maryland provision. The essential elements of due process as it relates to a judicial proceeding are notice and opportunity to defend.

          Due process, whether pursuant to that clause of the Fourteenth Amendment or the corresponding clause in a state constitution, protects an accused from being convicted of a crime except upon proof beyond a reasonable doubt of every element necessary to constitute the crime with which the accused is charged. It thus implicates the basic characteristics, if not the fundamental underpinnings, of the accusatorial system.

          Under our system of justice, a person charged with a crime is presumed innocent until he or she is found guilty beyond a reasonable doubt. That means that he or she may not be found guilty until the State has produced evidence sufficient to convince the trier of fact, to the required extent, of that person's guilt. Moreover, although not required to do so, the defendant may present a defense, in which event the evidence the defendant produces must be assessed along with that of the State in determining whether the State has met its burden. The State's burden is not reduced or changed in any way simply because the defendant elects not to interpose a defense. In those cases, the defendant may still seek to convince the trier of fact that the State has not met its burden of proof by arguing that the inferences to be drawn from the evidence the State has produced simply is not sufficient to support guilt….

The prosecution of statutory rape in Maryland necessarily brings into conflict the State's interests in protecting minors and defendants' due process rights because section 463(a)(3) operates " 'to exclude elements of knowledge and diligence from its definition,' " and, thus, removes reasonable ignorance of the girl's age and consequent lack of criminal intent as a defense. The failure of section 463(a)(3) to require proof of a culpable mental state conflicts both with the substantive due process ideal requiring that defendants possess some level of fault for a criminal conviction of statutory rape and the procedural due process ideal requiring that the prosecution overcome the presumption of innocence by proof of the defendant's guilt beyond a reasonable doubt. Notwithstanding the maxim that criminal statutes dispensing with the intent requirement and criminal offenses requiring no mens rea have a "generally disfavored status," the rationale of parts V and VI of the majority opinion is that the legislature has absolute authority to create strict liability crimes. For the reasons reviewed, I do not agree. On the contrary, I believe that due process both under the Fourteenth Amendment and under the Declaration of Rights, precludes strict criminal liability for statutory rape. Interpreting section 463(a)(3) as the majority does has the effect of largely relieving the State of its burden of proof and burden of persuasion. By making the defendant's intent, and, hence, blameworthiness, irrelevant, the Legislature has made inevitable, the petitioner's conviction. Moreover, upon conviction of the felony offense of statutory rape under section 463(a)(3), in addition to a substantial penalty of up to 20 years imprisonment, a defendant's reputation will be gravely besmirched. Where there is no issue as to sexual contact, which is more likely than not to be the case in statutory rape prosecutions, proof of the prosecutrix's age is not only proof of the defendant's guilt, it is absolutely dispositive of it and, at the same time, it is fatal to the only defense the defendant would otherwise have. So interpreted, section 463(a)(3) not only destroys absolutely the concept of fault, but it renders meaningless, in the statutory rape context, the presumption of innocence and the right to due process.

 I respectfully dissent.