Although having sex with a 13 year old girl hardly makes Mr. Polanski a sympathetic figure, his recent arrest brings into the spotlight the often inherent unfairness of America’s strict liability statutes and specifically the crime of “statutory rape”. As is the case in New York, most states have laws that make it a crime for an adult to engage in sexual intercourse with a minor, regardless of whether the adult knew or had reason to know, that the person was underage. Regardless of where one stands on Mr. Polanski’s conduct, by stripping away one of the core elements of criminal law- intent- we have created a situation where people can be convicted of serious felonies without knowingly or intentionally committing a crime. Unfortunately, such “strict liability” statutes – in the absence of knowledge and/or intent on the part of the accused – can often lead to very unjust results.

Let’s be clear: No one is advocating (at least not this author) that adults should have sexual relations with minors or that they should not be punished if they do knowingly engage in such conduct. And since Mr. Polanski admitted that he knew he was having sex with a minor, it can hardly be said that his was an unjust result. Society needs to both deter and punish those who endanger children’s lives. The problem is that by eliminating the element of intent, a core principle of almost every crime, a person can be found guilty of the crime regardless of the circumstances.

Under the New York Penal Law, a person is guilty of rape if he or she, being 21 years or older, engages in sexual intercourse with a person less than 17 years old. Consent is not a defense, and the person is guilty regardless of whether they knew or had any reason to believe the “victim” was a minor. Although such laws were likely passed with good intentions- to protect our children from sexual predators- the consequences of such laws do not always comport with societal ideals of fairness.

A hypothetical example: Let’s say you have a 21 year old son named Joe who is a senior at an Ivy League school and has a bright future ahead of him. One night he meets a girl in a club (where 21 is the minimum age for entry) and they spend the evening drinking and dancing. During the evening she tells Joe that she is also 21, and since she looks to be about that age, or perhaps even older, Joe never gives it a second thought. Later they decide to go to Joe’s dormitory and they engage in consensual sexual intercourse. The problem is that she was actually just shy of 17 years of age and your son Joe is now guilty of a felony offense- even though he had every reason to believe that she was of age.

Again, no one is suggesting that having sex with minors is a good thing or should be condoned, but if Joe had every reason to believe that he was having sex with a 21 year old, should he be guilty of a felony? And let’s be honest- with the short hemlines, high heels, and heavy make-up style that has become de rigueur amongst many young women today, it is not too difficult for them to appear much older than they actually are. If Joe didn’t know, and indeed had no reason to know, that he was having sex with someone under the age of 17, should he be labeled a felon and sent to prison? Is he really a criminal who deserves incarceration? Do we as a society truly believe that Joe must be locked up for our protection? Should Joe be a registered sex offender with his once promising future all but destroyed?

As lawyers we are taught in law school that almost every criminal act has two components: the mens rea (the criminal intent) and the actus reas (the physical act in furtherance of the criminal intent). The intent element is crucial to the fairness of the penal law- reasonable mistakes or accidents that were not intended should not be characterized as criminal and should not be subject to punishment.

For example, if you are going through a security checkpoint and you pick up a wallet that you reasonably believe to be your own, but that someone else mistakenly left behind, (as indeed was the situation in a case I recently handled) then you should not be guilty of a larceny, because it was not your intent or conscious objective to steal someone else’s wallet. Fortunately for my client in that case, larceny, as with most other crimes, does require intent as an element of the crime, and the case was appropriately dismissed by the prosecutor when it became clear that it was an innocent mistake.

In Joe’s case however, no matter what his intentions were, no matter how reasonable it was for him to believe that she was old enough, he is guilty. Indeed, even a prosecutor who felt sympathetic for Joe’s position would be required to follow the law and seek a conviction. Most reasonable people would agree that if Joe really didn’t know or have any reason to know he was having sex with a minor, this would not be a fair result.

So what is the answer? Obviously, the prohibition against having sex with minors is a good one. It is the lack of intent as an element of the crime which makes “statutory rape” unjust. Most advocates of strict liability argue that removing the intent element is a necessary vehicle to proving such cases, since intent is difficult to prove. This is simply untrue. There is already a legal concept that would allow prosecutors to convict the guilty, but also ensure that where justice demands it, the defendant can be exonerated- it is called the “rebuttable presumption”.

The rebuttable presumption in essence means that if you are “caught in the act,” it is presumed that you had the intent to commit the crime, thus relieving prosecutors of proving intent. But the rebuttable presumption provides a safety valve- if the accused can prove that he didn’t know and had no reason to know that he was committing a crime, a jury can find him not guilty.

The rebuttable presumption is already used in New York in several instances- such as the “automobile presumption.” Under the automobile presumption, any occupants of a vehicle found to contain contraband are presumed to have knowing possession of the contraband, thus relieving the prosecutor of the difficult burden of proving that the guy in the backseat knew there were drugs in the glove compartment. Nevertheless, an occupant of the vehicle can offer evidence to rebut the presumption of knowing possession, so that, at least in theory, an innocent person is not wrongfully convicted of a crime they had no intent to commit.

Of course, the rebuttable presumption would not likely have helped Mr. Polanski, as any jury would probably find it difficult to believe that he didn’t know or had no reason to know that he was having sex with a 13 year old girl. But for someone like Joe, who really didn’t know and had no reason to know that he was having sec with someone underage, the rebuttable presumption would allow a jury hearing Joe’s case to render a verdict of not guilty. Under “strict liability” statutes of today, he would never have that chance…

By A. Adam Mehrfar

The recent news that the NBA Star Gilbert Arenas received a sentence of 30 days in halfway house and 2 years probation for unlawful possession of firearms calls to mind the infinitely unjust sentence imposed upon the NFL player Plaxico Buress in New York not too long ago. Whereas Arenas will not even serve one day in jail and will be back playing hoops next season, Plaxico remains in a state prison more than one year later on his 2 year sentence for essentially the same crime.  It’s unclear whether Plaxico will ever get to play football again.

In November 2008, Plaxico went to a New York nightclub and brought a gun with him for protection. His teammate had been robbed at gunpoint on a New York street just a few days before, and in the months preceding Plaxico’s arrest, there was a spate of gunpoint robberies targeted against NFL Players.  Plaxico, obviously fearing for his safety, brought a handgun with him out that night and kept it in his waistband. Unfortunately for Plaxico, the gun accidentally discharged and he shot himself in the leg.

Soon thereafter, many pundits and politicians, including Mayor Bloomberg, were calling for Plaxico to be dealt with harshly. The Office of the District Attorney, New York County,  refused to make Plaxico an offer, even though they have a reputation for being reasonable and fair, and have made plea-bargain offers to other offenders with the same charges in the past.  Having no viable defense, Plaxico was forced to plead guilty and accept the mandatory minimum sentence of two years.  He remains in prison.

Justice was not served in the case of People of the State of New York v. Plaxico Buress. Like many other states, New York has very harsh mandatory minimum sentences for people in possession of loaded weapons, and there are many sound public policy reasons for the same.  Such harsh sentencing laws can sometimes be appropriate for people who carry guns with ill intent- such as those who carry them to commit robberies or other violent crimes.  Yet Plaxico did not carry a weapon to commit a robbery or some other type of crime. He brought it for protection, because as a celebrity athlete he was a target, a potential victim.  Sean Taylor, another NFL pro, was shot and killed the year before in a robbery attempt.  Plaxico had every reason to believe his life was in jeopardy when he went out that night- he had a good reason for carrying the weapon.

Surely, the harsh sentences available under New York’s tough gun laws were not intended for someone like Plaxico Buress.  He was a potential victim, not a miscreant looking for trouble.  Moreover, as a Celebrity living in New York City, Plaxico merely needed to apply for a carry permit and his application would very likely have been approved.  Apparently, he mistakenly (but not unreasonably) believed that his Florida carry permit gave him permission to carry the gun in New York.

It is hard to fathom that the failure to submit an application warrants a two year prison sentence.   It doesn’t.  The prosecutors wanted to make an example out of Plaxico.  They wanted to tell the world that if you carry a gun without a permit in New York you are going to prison.  This may be good public policy, but it is patently unfair when an individual loses his liberty as a result.  Plaxico was a sacrificial lamb.

Justice demands that the punishment be commensurate with the crime.  Before Plaxico was sentenced, he had already paid a high price for his supposed transgression- he seriously injured himself and lost his job for the season.  He was publicly humiliated.  He had to deal with investigations by both the NYPD and the NFL into the incident.  He had to bear the heavy burden of knowing that he let down his teammates and that he may likely go to prison for his actions.   It is almost a certainty that Plaxico didn’t sleep very well for a long time.

In light of all of the crimes against other NFL players and other professional athletes, it can hardly be said that Plaxico’s belief that he needed a gun for protection was unreasonable. The punishment must fit the crime, not whatever message the prosecutor wants to send to the public.  Plaxico lost his liberty and his livelihood  because he didn’t put in the proper paperwork.  That is not justice.  And ultimately, justice must be the goal of every district attorney, regardless of who the defendant is…