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 seX 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 a chance…

By A. Adam Mehrfar