People v. Hernandez


Defendant charged with statutory rape and convicted.   Victim was 17 years and 9 months old at the time of intercourse and consented to the sex.  At trial defendant relied on penal code stating that there must be intent or criminal negligence to commit the crime and that “one is not capable of committing a crime who commits an act under an ignorance or mistake of fact which disapproves any criminal intent.”


Whether mistake of fact regarding the victim’s age is a defense to statutory rape.

Relevant Statute

“Rape is an act of sexual intercourse, accomplished with a female not the wife of the perpetrator, under either of the following circumstances:  1. Where the female is under the age of 18 years…”


Yes, conviction overturned.  The policy goals of the statutory rape law are not to penalize the female for underage sex, but to prevent the male from indulging in the act.  Society, by passing the law, has said that it is beneficial for the woman under 18 to avoid sex because there are “social, moral, and personal values which are preserved by the abstinence.”  When the male engages in intercourse, he does so assuming the risk of her age and “consciously intends to proceed regardless of the age of the female and the consequences of his act.”  But, if he reasonably believes the woman is above the age of 18, “he has subjectively eliminated the risk by satisfying himself on reasonable evidence that the crime cannot be committed.”  If the man is misled by the reasonable belief, there is no intent.  The inclusion of mistake of fact as a legitimate defense does not detract from the aforementioned policy goals.  The deterrence mechanism is not interfered with when the male is misled or reasonably believes the female to be under the age of 18.

“We hold that in the absence of a legislative direction otherwise, a charge of statutory rape is defensible wherein a criminal intent is lacking.”


This is not the majority position.  Mistake of fact at common law is not typically a defense for statutory rape.

Leave a Reply