STATE of Idaho, Plaintiff-Respondent, v. Jason Ray STIFFLER, Defendant-Appellant, 114 Idaho 935

SWANSTROM, Judge. Jason Stiffler entered a conditional plea of guilty to statutory rape, reserving his right to challenge on appeal the district court’s refusal of his proposed jury instruction on a defense to the crime charged. The sole issue is whether an honest and reasonable mistake of fact as to the victim’s age is a defense to the charge of statutory rape. We hold it is not. The underlying premise of rape laws is the lack of a female’s consent to an invasion of her bodily privacy.

The prohibition against sexual intercourse with a female minor, I.C. § 18-6101(1), is an attempt to prevent the sexual exploitation of persons deemed legally incapable of giving consent. Notwithstanding this deemed lack of consent in statutory rape, Stiffler contends that a reasonable mistake of fact as to the victim’s age should be a defense because it would disprove any criminal intent to engage in non-consensual sexual activity. The argument for the reasonable mistake defense is based upon I.C. §§ 18-114 and 18-201(1).

Section 18-114 provides: “In every crime or public offense there must exist a union, or joint operation, of act and intent, or criminal negligence.”

Section 18-201(1) provides: “All persons are capable of committing crimes, except those ... [pjersons who committed the act ... under an ignorance or mistake of fact which disproves any criminal intent.” Stiffler contends that under

section 18-114 criminal intent is a necessary element of statutory rape, which intent may be disproved under

section 18-201(1) through evidence showing a reasonable mistake of fact. Stiffler further suggests that it would be unconstitutional to impose criminal liability where a reasonable mistake of fact disproves criminal intent. He urges us to adopt the reasoning of People v. Hernandez, 61 Cal.2d 529, 39 Cal.Rptr. 361, 393 P.2d 673 (1964), which judicially recognized the reasonable mistake defense to statutory rape. We first address the constitutional issue. An honest mistake as to the age of the victim has never been held to be a constitutional defense to statutory rape.

Nor has the United States Supreme Court suggested that a state may no longer place the risk of mistake as to the victim’s age on the accused. United States v. Brooks, 841 F.2d 268 (9th Cir.1988); Nelson v. Moriarty, 484 F.2d 1034 (1st Cir.1973). Rather, the effect of mistake on intent under state criminal law is largely left to the discretion of the states themselves. Nelson v. Moriarty, supra. We now examine the effect of sections 18-114 and 18-201(1) on the offense of statutory rape. The “intent” mentioned in

section 18-114 is merely the knowing or conscious performance of

an act, not an evil motive or criminal intent. See State v. Taylor, 59 Idaho 724, 87 P.2d 454 (1939). A reasonable mistake of fact will be a defense only for those persons charged with an offense having criminal intent as an ingredient of the crime. Whether a criminal intent is a necessary element of an offense is a matter of statutory construction. Where such intent is not made an ingredient of an offense, the lack of criminal intent is immaterial. State v. Sterrett, 35 Idaho 580, 207 P. 1071 (1922). Under I.C. § 18-6101(1), criminal intent is not a necessary element of statutory rape.

The only elements the state must prove are: (1) the conscious performance of sexual intercourse, accomplished with (2) a female under the age of eighteen. Statutory rape is a strict liability offense. Therefore, it is immaterial whether an accused reasonably believes the victim is eighteen years of age or older. See Commonwealth v. Miller, 385 Mass. 521, 432 N.E.2d 463 (1982), and authorities cited therein. Accordingly, we hold that a reasonable mistake of fact as to the victim’s age is no defense to statutory rape. We believe State v. Herr, 97 Idaho 783, 554 P.2d 961 (1976), supports our decision.

There, our Supreme Court addressed the reasonable mistake of fact defense in. connection with a charge of lewd and lascivious conduct with a minor. The Court specifically rejected the decision in People v. Hernandez, supra, finding more persuasive the line of authority that refused to judicially allow the defense. Further, the Court intimated that sexual offenses against minors are an exception to the general rule that a mistake of fact is a defense to a criminal charge. This exception is based on public policy declaring that minors cannot consent — subjectively or objectively — to unlawful sexual activity.

The Hernandez Court judicially approved the defense based, in part, on the doubtful validity of a public policy against the defense because of sexually active adolescents who may not need the law’s protection. The Hernandez Court also based its decision upon the absence of legislation against such a defense. Interestingly, California courts have expressly refused to adopt the defense espoused in Hernandez in cases dealing with charges of lewd and lascivious conduct with a minor. See People v. Olsen, 36 Cal.3d 638, 205 Cal.Rptr. 492, 685 P.2d 52 (1984). We do not find the reasoning in Hernandez to be compelling.

We believe the public policy exception is better expressed, at least in Idaho, as a recognition that the accused’s intent is immaterial to a charge of statutory rape. Furthermore, the Legislature is the proper forum for considering the merits of a “reasonable mistake” defense to statutory rape. See United States v. Brooks, supra; Commonwealth v. Miller, supra. Our Legislature at one time adopted the Model Penal Code which included a reasonable mistake defense for statutory rape. See 1971 IDAHO SESS. LAWS ch. 143 at 685. However, the entire Code was abruptly repealed through emergency legislation. 1972 IDAHO SESS.

LAWS ch. 109. If the Legislature wanted to retain the defense, it could easily have done so. The absence of specific legislation on the matter is not an invitation to the courts to create a defense. Lest we sound naive, we do recognize that the justification for preventing the sexual exploitation of minors may diminish where sexually sophisticated adolescents are involved. Though a female adolescent’s precociousness may be irrelevant to the charge of statutory rape, we believe such circumstances may properly be considered in imposing punishment. See, e.g., State v.

Nice, 103 Idaho 89, 645 P.2d 323 (1982) (continuous provocative acts of female adolescent considered as mitigative circumstances in modifying sentence for lewd and lascivious conduct). We hold that where factual circumstances warrant, the sentencing court in a statutory rape case may consider the reasonable belief of an accused as a mitigating factor under I.C. §§ 19-2515 and 19-2521. Here, for example, the victim’s appearance and the circumstances surrounding the act tended to support Stiffler’s claimed mistake as to the victim’s age.

We note that Stiffler received a withheld judgment and was placed on probation. We affirm the order granting a withheld judgment of conviction. WALTERS, C.J., concurs.