Mens rea for sexual abuse: the case for defining the acceptable risk.

I. INTRODUCTION

The Supreme Court's decision in Lawrence v. Texas (1) has intensified the debate over the constitutionality of statutes that impose strict criminal liability for sexual abuse of children. (2) Critics of these statutes have long been troubled by the possibility that an actor might be convicted despite reasonably having been convinced that his partner had reached adulthood. (3) This criticism has taken on new force with Lawrence's apparent "constitutionalization of an individual's right to sexual intimacy." (4) If sexual relations among unmarried adults not only are lawful, but are constitutionally protected, then--according to the critics of strict liability--due process ought to forbid the imposition of criminal liability on an actor who has no reason to suppose that his or her partner in consensual sex has not reached adulthood. (5) What Lawrence appears to require, on this view, is that the Government prove some culpable mental state regarding the age element in the crime of sexual abuse. (6)

So far, the courts have proven resistant to this argument, (7) perhaps with good reason. The obvious alternatives to strict liability are the recklessness and criminal negligence standards, at least in the many states that have adopted the Model Penal Code's approach to culpability. (8) But recklessness and criminal negligence are problematic in this setting. The trouble is that both of these standards would require jurors to calculate the acceptable level of risk on a case-by-case basis. (9) Both standards, in other words, would require jurors to decide--based primarily on the jurors' own estimates of the gravity of the harm that accompanies sexual abuse--what probability a reasonable person would be willing to accept that his or her partner is underage. (10) Most jurors are ill-equipped to make this calculation. Worse, their efforts to make this calculation almost inevitably will be skewed by evidence of the victim's unchastity. (11)

The solution to this problem lies in recognizing a new criterion of culpability--a new species of mens rea--that provides an alternative to strict liability, on the one hand, and to negligence and recklessness, on the other. Under this new criterion of culpability, the legislature, not the jury, would be responsible for deciding what level of risk is acceptable. The legislature would calculate the acceptable level of risk based on legislative assessments of both (1) the gravity of the harm that results from sexual abuse and (2) the general social utility of sexual intercourse. The jury then would be responsible only for determining whether the defendant either culpably failed to perceive or consciously disregarded a risk that exceeded this acceptable level. Thus the jury, instead of being asked to decide whether the defendant was or should have been aware of a "substantial and unjustifiable" risk that his or her partner was underage, (12) would be asked to decide simply whether the defendant was or should have been aware of, say, a realistic possibility that his or her partner was underage.

There are precedents for defining legislatively the acceptable level of risk. For example, the Model Penal Code's self-defense provision--like the self-defense provisions of most state criminal codes--makes the defense available only to actors who "believe" that force is necessary. (13) One effect of this provision is to make the defense unavailable to an actor who is aware of a probability greater than 50% that her use of force is not necessary. (14) The Model Penal Code's influential definition of "knowingly" also defines a fixed level of acceptable risk, albeit a very high one. (15) A person acts "knowingly" only if he "is aware that it is practically certain that his conduct will cause [the proscribed] result." (16)

This Article makes the case for a new variety of mens rea that is the obverse of "knowingly," that is, a new variety of mens rea that establishes a very low, fixed level of acceptable risk. In making the case for this new mens rea, the Article will not return to first principles. It will assume that strict liability, as traditionally defined, (17) is unacceptable for offenses that carry severe punishment. (18) It will also assume, as do legislatures and courts, the basic acceptability of criminal negligence, recklessness, and even so-called general intent as criteria of culpability. (19) Indeed, the better part of this Article will be devoted to showing how the new criterion of culpability is situated in relation to these existing criteria.

Part II.A begins with a brief analysis of recklessness and criminal negligence. This Part develops a kind of standard model for evaluating the justifiability of risk-creating conduct. When the legislature adopts recklessness or criminal negligence as the mens rea for the "social harm" element of an offense, it effectively delegates to the jury the entire responsibility for deciding whether the defendant's conduct was unjustifiable. Accordingly, in defining recklessness and criminal negligence, the legislature provides the jury with formulae for deciding whether the risk was unjustifiable. It is these formulae that will serve as a standard model and a starting point.