When is a Mistake of Fact as to Victim’s Age a Defense?
July 15th, 2021

PC 261; PC 261.5(a) & (b); 289(h)&(i)

In People v. Hernandez (1964) 61 Cal.2d 529, 529-530 the CSC analyzed the legislative intent behind PC 261, which defined sex with a female under the age of 18 years as rape (commonly known as statutory rape). The issue in the case was whether “the trial court erred in refusing to permit [the] defendant to present evidence going to his guilt for the purpose of showing that he had in good faith a reasonable belief that the prosecutrix was 18 years or more of age.” (Id. at 530.) The court interpreted the statute as allowing for a mistake of fact as to age defense because “the governing statute, by implication or otherwise, expresse[d] no legislative intent or policy to be served by imposing strict liability.” (Id. at 533.) “The primordial concept of mens rea, . . . expresses the principle that it is not conduct alone but conduct accompanied by certain specific mental states which concerns, or should concern, the law.” (Id. at 532.)

California enshrined this concept in PC 20 and 26. Section 20 provides that in “every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence.” Section 26 provides that a person who acts “under an ignorance or mistake of fact, which disproves any criminal intent” cannot commit a crime. Because the statutory rape statute at issue in Hernandez did not express any legislative intent to override sections 20 and 26, the court concluded that PC 261 must be subject to a mistake of fact as to age defense. (Hernandez, at 535-536.)

PC 261.5(a)&(d)

A defendant is not entitled to a mistake of fact instruction if he claims that he believed that the complaining witness was over 16. His belief would still constitute the mens rea of intending to have sex with a minor.(People v. Scott(2000) 83Cal.App.4th 784, 800–801.) However, if he claims that he believed that the complaining witness was over 18 years old, he is entitled to the mistake of fact instruction. (See discussion of People v. Hernandez, above.

PC 287

We are unable to detect any valid distinction between unlawful sexual intercourse and oral copulation within the rationale of Hernandez based upon which orifice of the human body is used. The refusal to so instruct was prejudicial error. (People v. Peterson (1981) 126 Cal.App.3d 396, 397.)


PC 287(c); PC 288

The courts have regularly refused to extend Hernandez to PC 288 crimes. (See cases collected in In re Donald R. (1993) 14 Cal.App.4th 1627, 1629.) For example, People v. Olsen (1984) 36 Cal. 3d 638 held that a defendant’s reasonable mistake as to the age of a victim is not a defense to a prosecution under Pc 288(a) which criminalizes the same act as PC 288 but applies when the victim is under 14 years old. In so holding, the court distinguished  Hernandez as follows: “There exists a strong public policy to protect children of tender years. . . . [S]ection 288 was enacted for that very purpose. [Citations.] Furthermore, even the Hernandez court recognized this important policy when it made clear that it did not contemplate applying the mistake of age defense in cases where the victim is of ‘tender years.’ ” (Olsen at 646; see also People v. Paz (2000) 80 Cal.App.4th 293, 300-01.)

PC 208(b)

People v. Magpuso (1994) 23 Cal.App.4th 112, 113 declined to apply Hernandez to require an instruction on reasonable mistake of age in a prosecution under PC 208 (b).) There, the defendant’s purported ignorance of the victim’s age did not eliminate criminal intent; unlike persons charged with violating a statute that proscribes conduct with minors which would be innocent if committed with an adult, the defendant in Magpuso had committed a criminal act — kidnapping of a person — with criminal intent, regardless of her belief as to the child’s age. (Magpuso, at 118.)

PC 236.1(c)

The question of whether mistake of fact applies to the attempt prong of PC 236.1(c) is unresolved. (People v. Moses (2020) 10 Cal.5th 893, 909 fn. 10 [“We are not called upon here to determine the interplay between subdivision (f) and the specific intent required for the attempt prong of [PC] 236.1(c) when the defendant attempts, but fails, to induce an actual minor to engage in a commercial sex act. We offer no view on whether a mistake of fact as to the victim’s age would be a defense in that situation.”]

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