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

AuthorJohnson, Eric A.
  1. 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.

    Part II.B explains how the legislature implements this standard model when it creates general intent offenses, whose only culpable mental states attach to conduct and attendant-circumstance elements. (20) Focusing on two particular general intent offenses, drunk-driving homicide and drug-induced homicide, this Part will show how these and other general intent offenses can be interpreted as representing antecedent legislative determinations that certain forms of conduct are reckless per se or negligent per se. Put another way: when the legislature creates a general intent offense, it effectively takes upon itself the responsibility for making the same justifiability calculations that are delegated to the jury in cases of negligence and recklessness. This Part demonstrates that there is nothing exceptionable about substituting an antecedent legislative determination of justifiability for the jury's case-specific determination.

    Part III explains why none of the criteria of culpability considered so far--not recklessness, nor criminal negligence, nor general intent--will work in sexual abuse cases. Recklessness and criminal negligence founder on the requirement that the jury assign a value to the gravity of the harm in defining the acceptable level of risk. As this Part will show, even appellate judges have proven incapable of putting aside evidence of the victim's unchastity in defining the acceptable level of risk in sexual abuse cases. No better can be expected of jurors. Nor can this problem be solved by the creation of a general intent offense; the facts that signal the presence or absence of a risk that the victim is underage are too various and too subtle to be captured in a per se rule.

    Part IV constructs an argument for defining legislatively the acceptable risk of sexual imposition. After explaining how this hybrid approach to the question of justifiability would operate, this Part illustrates the point with a brief analysis of the "knowingly" and "reasonable belief" criteria of culpability, both of which employ the hybrid approach. Then it explains why sexual abuse lends itself to legislative calculation of the acceptable risk and how exactly a fixed probability threshold would operate in the sexual abuse context. Finally, Part V argues that a rule requiring proof that the defendant "was or should have been aware" of a probability exceeding the threshold defined by the legislature provides sufficient assurance of the defendant's culpability.

  2. TWO MODELS FOR CALCULATING JUSTIFIABILITY

    1. RECKLESSNESS AND NEGLIGENCE

      At the core of the Model Penal Code's recklessness and criminal negligence standards lies the idea of unjustifiable risk. (21) Under the Code, a defendant is reckless if he "consciously disregards a Substantial and unjustifiable risk that the material element exists or will result from his conduct." (22) By comparison, he is criminally negligent if he "should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct." (23) Both definitions, then, require the jury "to examine the risk and the factors that are relevant to its ... justifiability" for the sake of determining whether the risk posed by the actor's conduct was, in fact, unjustifiable. (24)

      It would be natural to suppose that, despite this shared focus on the justifiability of the risk, recklessness and criminal negligence differ fundamentally even in how the justifiability of the risk is measured. Criminal negligence, after all, is said to be an objective standard of culpability, while recklessness is said to be a subjective one. (25) Thus, it might seem as though the definition of recklessness ought to require the jury to address the question of justifiability "from the point of view of the actor's perceptions." (26) Likewise, it might seem as though the definition of negligence ought to require the jury to address the question of justifiability "in terms of the objective view of the situation as it actually existed." (27) Indeed, that is just what the commentary to the Model Penal Code says. The commentary suggests that though the question of justifiability plays a pivotal role in the definitions of both recklessness and negligence, the perspective from which the jury addresses this question differs depending on which standard is being applied. (28)

      This aspect of the commentary, though, vastly overstates the differences between recklessness and negligence. First of all, the negligence standard is less objective than the commentary implies. The very terms of the Code's definition of "negligently" require the jury to consider "the circumstances known to [the actor]" in addressing the justifiability of the risk. (29) Thus, as...

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