Mistake of Age Defense in PA Statutory Sexual Assault Cases

If you have been charged with statutory sexual assault (§ 3122.1) in the Commonwealth of Pennsylvania [not to be confused with § 3122 Statutory rape (Repealed in 1995)], our criminal lawyers might be able to raise a Mistake as to Age Defense (a.k.a. Mistake of Age Defense) for you.

The Mistake of Age Defense can often be used in statutory sexual assault cases when there is evidence that the person charged with this crime reasonably believed the alleged victim was of a legal age.

When Can a Mistake of Age Defense Be Used?

Below is the Pennsylvania legal statute that describes the situations in which mistake as to age can and cannot be raised as a defense.

§ 3102. Mistake as to age.

“Except as otherwise provided, whenever in this chapter the criminality of conduct depends on a child being below the age of 14 years, it is no defense that the defendant did not know the age of the child or reasonably believed the child to be the age of 14 years or older. When criminality depends on the child’s being below a critical age older than 14 years, it is a defense for the defendant to prove by a preponderance of the evidence that he or she reasonably believed the child to be above the critical age.”

Despite common belief, the statute does not completely ban the defense when the victim child is under fourteen. In certain circumstances a juvenile defendant will still be entitled to a Mistake as to age defense even when the alleged victim is under 14 (see Commonwealth v. A.W.C., 2008 PA Super 130, ¶ 17, 951 A.2d 1174, 1179 where a 15 year-old was entitled to this defense when he had sexual relations with an 11 year-old).

The test is not simply the age of the alleged victim – it is the “critical age” created by the statute. As discussed in greater detail below, the “critical age” created by the statutory sexual assault statute is dependent upon the age of the defendant.

Certain criminal statutes explicitly forbid the use of the Mistake of Age defense.

What is Statutory Sexual Assault (§ 3122.1)?

Generally, Statutory Sexual Assault is committed when Person A engages in sexual intercourse with Person B who is under the age of 16, AND Persons A and B are not married, AND Person A is four or more years older than Person B.

According to Commonwealth v. Price, 2018 PA Super 105, 189 A.3d 423, “four years older” must be calculated using exact birth dates and time.

Can a Mistake of Age Defense Be Used in Statutory Sexual Assault Cases?

Yes, a Mistake of Age defense can be used in statutory sexual assault cases (Commonwealth v. Dennis, 2001 PA Super 281, 784 A.2d 179.)

However, because this statute contains the language “four or more years older,” the critical age for this statute is dependent upon the age of the defendant.

The “critical age” of § 3122.1 “statutory sexual assault” for a 21 year-old defendant is 16 years because if this defendant had indecent contact with a child below the age of 16 he would be violating this statute. If charged for this conduct, however, he or she could raise a Mistake of Age defense because this critical age (16) is older than 14 years.

The “critical age” of § 3122.1 “statutory sexual assault” for an 18 year-old defendant is 15 years because if this defendant had indecent contact with a child below the age of 15 (more specifically four or more years younger than the defendant) he would be violating this statute. If charged for this conduct, however, he or she could raise a Mistake of Age defense because this critical age (15) is older than 14 years.

Mistake as to Age – Burden of Proof

For a defendant to utilize a Mistake as to Age Defense during trial, he or she must raise this defense during trial by offering evidence in support of this defense (see Commonwealth v. Bohonyi, 2006 PA Super 116, 900 A.2d 877). Examples of this would include testimony that the alleged victim lied about his or her age, presented a fake I.D card, drove a car, or was frequently around older individuals. This evidence could support a finding that the defendant had a reasonable belief that the alleged victim was in fact above the critical age.

To prevail on a mistake of age defense, the defendant must prove that he or she reasonably believed the alleged victim was above the critical age by what is known as a preponderance of the evidence. Unlike the beyond a reasonable doubt standard which is the highest burden of proof in the criminal justice system, the preponderance of the evidence standard is much less stringent.

A preponderance of the evidence is defined as “the greater weight of the evidence, i.e., to tip a scale slightly is the criteria or requirement for preponderance of the evidence” (See paragraph 5 of Karch v. Karch, 2005 PA Super 342, 885 A.2d 535).

Once the defendant has raised the defense and offered proof in support of it, the burden shifts to the Commonwealth to disprove the defense beyond a reasonable doubt.

CONTACT SHRAGER DEFENSE ATTORNEYS – EXPERIENCED STATUTORY SEXUAL ASSAULT CRIMINAL DEFENSE ATTORNEYS

A conviction for Statutory Sexual Assault and other sexual crimes in Pennsylvania can lead to sex offender registration requirements and long jail sentences. We understand that good people can use bad judgment and can also be misled into illegal situations.

Our Pittsburgh criminal defense attorneys have decades of experience and successful results defending clients in statutory sexual assault cases throughout Western Pennsylvania. Call 412-567-6290 right now for a FREE initial legal consultation. Speak directly with David J. Shrager 24 hours a day, 7 days a week.