Petition for Writ of Certiorari — Keddron Rakee West, Petitioner v. Georgia

No.__________

________________________________________________________________________

In The

Supreme Court Of The United States

_______________________

KEDDRON RAKEE WEST

Petitioner,

V.

STATE OF GEORGIA

Respondent.

_____________________

On Petition for Writ of Certiorari to the

Supreme Court of Georgia

_________________

PETITION FOR WRIT OF CERTIORARI

_________________

MCNEILL STOKES

5372 Whitehall Place SE

Mableton, Georgia 30126

Telephone: 404-352-2144

mcstokes@bellsouth.net

Attorney for Petitioner

BRIAN STEEL

The Steel Law Firm

1800 Peachtree St NW, #300

Atlanta, Georgia 30309

Telephone: 404-605-0023

thesteellawfirm@msn.com

Attorney for Petitioner

_______________________________________________________________________

i

QUESTION PRESENTED FOR REVIEW

Is due process violated by not allowing Petitioner to rely upon

the statutory enacted mistake of fact defense as his sole defense

to an indictment for statutory rape?

ii

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW…......................................................ii

TABLE OF CONTENTS……………………………………...................................iii

INDEX TO APPENDIX.......................................................................................iv

TABLE OF AUTHORITIES……………………...……………….………………….v

OPINIONS BELOW……………………………………………………..…………….1

JURISDICTION……………………………………………………………………......1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED……...…2

STATEMENT OF THE FACTS……………………………………….……………..3

STATEMENT OF THE CASE………………………………………………………..3

REASONS FOR GRANTING THE PETITION……………………………………5

ARGUMENT AND CITATION OF AUTHORITY….……………………………..8

DUE PROCESS REQUIRES THAT THE PETITIONER

SHOULD BE PERMITTED TO PRESENT EVIDENCE OF HIS

JUSTIFIABLE

BELIEF

THAT

THE

VICTIM

WAS

SEVENTEEN YEARS OLD AND IS ENTITLED TO A

MISTAKE OF FACT DEFENSE

CONCLUSION………………………………………………………………………..19

iii

INDEX TO APPENDIX

Decision of the Supreme Court of Georgia denying

Motion for Reconsideration

September 24, 2018……………………………………..……….…….…A-1

Decision of the Supreme Court of Georgia denying Writ of Certiorari

August 27, 2018……………………………………………………………A-2

Decision of the Court of Appeals of Georgia denying Motion for

Reconsideration and Suggestion of En Banc Review

January 22, 2018…………………………………………………….....….A-3

Decision of the Court of Appeals of Georgia affirming the Superior Court of

Berrien County’s Order granting the State of Georgia’s Motion in Limine

December 12, 2017………………………………………..………………...A-4

Order of the Superior Court of Berrien County granting

the State of Georgia’s Motion in Limine,

March 21, 2017……………………………………………………………....A-5

iv

TABLE OF AUTHORITIES

CASES

PAGE

Tarvestad v. State, 261 Ga. 605, 606, 409 S.E. 513(1992)……………….…….6

Watts v. State, 259 Ga. App.531,532, 578 S.E.2D 231 (2003)…………….…6,7

Morgan v. State, 303 Ga.App. 358, 360, 693 S.E,2d 504 (2010)………….…...7

Hill v. State, 310 Ga. App 695, 713 S.E. 2d 891 (2011)…………………..…….7

Henderson v. State, 255 Ga. 687,689, 341 S.E.2d 439 (1986)…………..……...7

Walker v. State, 260 Ga. 737, 739, 399 S.E. 2s 199 (1991)……………….….…7

Hayward v. State, 383 Ga App. 586 (2007)……………………………....8, 13,14

Davis v. State, 329 Ga. App. 17 (2014)……………………………………….8, 13

Castaneria v. State, 321 Ga. App. 418 (2013).………………………….……8, 13

Staples v. U.S., 511 U.S. 600 (1994)………………………………………..9,11,15

Liparota v. United States, 471 U.S. 419,433, 105

S.Ct. 2084, 85 .L.Ed. 2d 434 (2985)………………………………………..…9,10

Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 2480,

156 L.Ed.2d 508 (2003)…………………………………………………..…10,12,18

United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112,

28 L.Ed. 2d 356 (1971)………………………………………………………….....11

United States v. X-Citement Video, 513 U.S. 64, 69-70 (1994)…..….12, 13, 18

Tant v. State, 158 Ga. App. 624 (1981)…………………………………..…14,18

People v. Hernandez, 61 Cal. 2d 529 (1964) ………………………...….14, 15,16

U.S. v. Balint, 258 U.S. 250 (1992)………………………………………..……..15

State v. Guest, 583 P.2d 836 (1978)…………………………………..…………..17

Perez v. State, 111 N.M. 160, 162 (1990)……………………………………..….17

v

STATUTES

U.S.C. § 1257 (a)……………………………………………………………….…...….1

O.C.G.A §16-3-5 ………………………………………………………....2,6,7,8,13,14

O.C.G.A §16-6-3……………………………………..………………….………2, 6,8,13

vi

OPINIONS BELOW

The decision of the Supreme Court of Georgia denying Motion for

Reconsideration dated September 24, 2018 is set forth in the Appendix at A1. The decision of the Supreme Court of Georgia denying Writ of Certiorari,

dated August 27, 2018, is set forth in the Appendix at A-2. The Court of

Appeals of Georgia’s denial of Motion for Reconsideration and Suggestion of

En Banc Review, dated January 22, 2018, is set forth in the Appendix at A-3.

The decision Court of Appeals of Georgia affirming the Superior Court of

Berrien County’s Order granting State of Georgia’s Motion in Limine dated

December 12, 2017 is set forth in Appendix A-4. The Order of the Superior

Court of Berrien County granting the State of Georgia’s Motion in Limine,

dated March 21, 2017, and is set forth in the Appendix at A-5.

JURISDICTION

The final judgment of the Supreme Court of Georgia was rendered on

September 24, 2018 denying the Motion for Reconsideration. The statutory

provision conferring jurisdiction on the Supreme Court of the United States

to review on a Writ of Certiorari is 28 U.S.C. § 1257 (a).

1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

O.C.G.A §16-3-5, “A person shall not be found guilty of a crime if

the act or omission to act constituting the crime was induced by a

misapprehension of fact which, if true, would have justified the

act or omission.”

O.C.G.A §16-6-3(a), “A person commits the offense of statutory

rape when he or she engages in sexual intercourse with any

person under the age of 16 years and not his or her spouse,

provided that no conviction shall be had for this offense on the

unsupported testimony of the victim.

Fourteenth Amendment of the United States Constitution “…Nor

shall any State deprive any person of life, liberty or property

without due process of law...”

2

STATEMENT OF THE FACTS

Keddron Rakee West was indicted in State v. West, Docket NO.,

16CR00096 in the Superior Court of Berrien County, Georgia for statutory

rape of an alleged victim who was 15 years old who represented that she was

17 years old in which the Petitioner reasonably believed. The State presented

a Motion in Limine to prevent any testimony or evidence regarding the

victim’s representation that she was 17 years old including a video in which

the Petitioner stated that he was under the belief that the victim’s age was

17 years old. The Trial Court granted the States Motion on March 21, 2017

prohibiting the Petitioner or his counsel from submitting any evidence or

contention that the victim represented that she was 17 years old thereby

denying the Petitioner his sole defense. The Motion in Limine further denied

the mistake of fact defense as to the Petitioners belief of victims age as

provided in O.C.G.A. § 16-3-5.

STATEMENT OF THE CASE

Petitioner, Keddron Rakee West, (“Defendant” in the underlying case

in Superior Court of Berrien County), files this Petition for Writ of Certiorari

in support of his appeal of the Order of Judge Howard McClain granting the

State’s Motion in Limine. On March 21, 2017, the State presented a Motion

in Limine (“State’s Motion”) in State v. West, Docket 16CR00096 to prohibit

any testimony or presentation of any evidence in this case regarding the

Defendant’s reasonable belief about the victim’s representation that she was

3

seventeen years of age, including part of a video recording of the Defendant

where he stated his belief that the victim’s age was seventeen (Appendix 5).

The trial court granted the State’s Motion on March 21, 2017. Within ten

(10) days of the trial court’s Order (“Order”). Defendant requested a

Certificate of Immediate Review from the trial court, as the granting of the

State’s Motion is not subject to direct appeal. The trial court granted the

Defendant’s request for a Certificate of Immediate Review and signed the

Certificate of Immediate Review on March 31, 2017. Defendant then filed an

Application for Interlocutory Appeal in the Court of Appeals of Georgia

which was granted on April 25, 2017. Notice of Appeal was filed on May 1,

2017 and docketed on June 29, 2017 as Appeal No. A17A2020. On December

12, 2017 the panel decision of Dillard, CJ, Ray and Self, JJ affirmed the

Superior Court decision prohibiting any testimony or evidence regarding the

Defendant’s reasonable belief that the alleged victim was over the age of

consent (Appendix 4).

A Motion for Reconsideration and Suggestion of En Banc Review was

denied on January 22, 2018 which attached a substituted opinion for the

original opinion dated December 12, 2017 (Appendix 3).

A Petition for Writ of Certiorari to the Supreme Court of Georgia was

filed and docketed on February 8, 2018 as S18C0887 and was denied on

August 27, 2018 (Appendix 2). A Motion for Reconsideration was denied on

September 24, 2018 (Appendix 1).

4

REASONS FOR GRANTING THE PETITION

Due process requires that the Petitioner should be able to rely upon

the defense of mistake of fact as the sole defense. The State should not be

permitted to deny the Defendant the statutory enacted mistake of fact

defense which should be considered in conjunction with statutory rape law in

order to convict.

The arbitrariness of the conclusive presumption that someone under

the age of sixteen is incapable of consent is demonstrated by the legislative

history that the age of consent was raised in 1995 by the Georgia legislature

from fourteen to sixteen years old, showing that prior to 1995, a fifteen year

old was fully capable of consenting. A policy behind criminal law is to punish

prohibited actions committed with a culpable intent, but the question in this

case is whether the law should punish an individual with no culpable intent

who reasonably believes that he was not violating the law based upon

justifiable reliance of the misrepresentation of the age by the alleged victim.

It is submitted that punishing the male without allowing him any defense of

justifiable reliance on the alleged female victim’s culpable misrepresentation

violates due process as well as basic notions of fairness and substantial

justice. Countless unsuspecting persons have had their lives wrecked by

being convicted of statutory rape when they reasonably believed that the

alleged sexual partner was of age and had no intent of committing a crime.

5

The trial court granted the State’s Motion in Limine limiting testimony

and evidence concerning the Defendant’s justifiable belief that the victim’s

age was seventeen, including limiting the use of Defendant’s recorded

interrogation and statements by the victim about her represented age of

seventeen. This prohibited the Defendant from proffering a mistake of fact

defense based on his good faith and reasonable belief in the alleged victim’s

misrepresentation of her age.

Georgia’s statutory rape statute O.C.G.A §16-6-3 should be considered

in conjunction with O.C.G.A §16-3-5 providing for a mistake of fact defense.

O.C.G.A §16-6-3 reasonably punishes those individuals who have the intent

to have sex with underage persons, but unless read in conjunction with the

mistake of fact statute O.C.G.A §16-3-5, unreasonably punishes those who

have no such intent. The plain language of the statutory rape statute does

not prohibit the use of a mistake of fact defense codified in O.C.G.A §16-3-5.

It would be a violation of due process to deny the Defendant his sole defense

of mistake of fact that he reasonably believed representation of the alleged

victim that she was seventeen years old.

Georgia recognizes the sole defense doctrine and if there is some

evidence to support a charge on a defendant’s sole defense, the trial court

must charge the jury on said defense whether it was requested or not. See

Tarvestad v. State, 261 Ga. 605, 606, 409 S.E.2d 513 (1991); Watts v. State, 59

6

Ga. App. 531, 532, 578 S.E.2d 231 (2003); Morgan v. State, 303 Ga.

App. 358, 360, 693 S.E.2d 504 (2010) (“A charge on the defendant's sole

defense is mandatory only if there is some evidence to support the charge.”).

Failure to do so constitutes reversible error. See Hill v. State, 310 Ga. App.

695, 713 S.E.2d 891 (2011); Watts, supra.

In the case at hand, there was not only some evidence to support the

mistake of fact defense, but an abundance of evidence would be barred from

trial. The exclusion of said evidence “cannot be considered harmless error”

and the exclusion warrants reversal. See Henderson v. State, 255 Ga. 687,

689, 341 S.E.2d 439 (1986).

In Walker v. State, as in the case at bar, the trial court granted a

motion in limine which excluded evidence of appellant’s sole defense. See

Walker v. State, 260 Ga. 737, 739, 399 S.E.2d 199 (1991). The Supreme Court

of Georgia held that the appellant “should have been given the opportunity to

attempt to raise a reasonable doubt in the minds of the jury” to his guilt. Id.

The ruling on the motion of limine was found to have “infected the trial with

error” to the point that any mitigating actions “could not rescue the trial.” Id.

Thus, the Petitioner has been denied his sole defense in violation of

due process that was granted to him in the plain language of the legislative

enactment of the mistake of fact defense in O.C.G.A. §16-3-5. The motion in

limine stripped the Petitioner of his ability to defend the charges against him.

7

ARGUMENT AND CITATION OF AUTHORITY

DUE PROCESS REQUIRES THAT THE PETITIONER SHOULD BE

PERMITTED TO PRESENT EVIDENCE OF HIS JUSTIFIABLE

BELIEF THAT THE VICTIM WAS SEVENTEEN YEARS OLD AND IS

ENTITLED TO A MISTAKE OF FACT DEFENSE

The Petitioner should not be prevented from introducing evidence that

he justifiably relied upon the representation of the alleged victim that she

was seventeen years old as well as operating under the reasonable mistake of

fact that she was seventeen years old. The decision did not consider the

established law of a mistake of fact defense established by O.C.G.A §16-3-5

allowing for a mistake of fact defense in criminal cases and disregarded the

case law that subsequently conflicts with Hayward v. State, 383 Ga App. 586

(2007) which has been modified in the language in Davis v. State, 329 Ga

App. 17 (2014) and Castanerian v. State, 321 Ga. App. 418 (2013).

The plain language of the statutory rape statute does not prohibit the

use of a mistake of fact defense codified in O.C.G.A §16-3-5 and contained in

Georgia Pattern of Jury Instructions 1.41.50 and 3.40.10 which provide for

the mistake of fact defense. The statutory rape statute O.C.G.A §16-6-3

should be read in conjunction with the mistake of fact statute O.C.G.A. §16-35 when a Defendant has a reasonable belief of the fact that the sexual

partner was of age of consent. It is submitted that Defendant in the instant

case should not be punished when he had no intention of violating Georgia’s

8

statutory rape statute and was reasonably mistaken that the alleged victim

was of age. When the statutory rape statute and the mistake of fact statute

are read together for a Defendant who reasonably believed that the alleged

victim was of age there would be no intention to have sexual relations with

an underage individual and therefore there would be no crime.

Generally, to be convicted of a crime, the prosecution must prove both

the actus reus and mens rea. Staples v. United States, 511 U.S. 600, 114 S.Ct.

1793, 128 L.Ed.2d 608 (1994). As with anything in the law though, there is an

exception to this general rule: the public welfare doctrine. Id; Catherine L.

Carpenter, Article on Statutory Rape, Strict Liability, and the Public Welfare

Offense Model, 53 Am U.L. Rev. 313 (2003). Under this doctrine, the

prosecution need only prove that there was an illegal act, no additional proof

of criminal intent is necessary. The theory is that public welfare offenses

regulate “a type of conduct that a reasonable person should know is subject to

stringent public regulation.” Liparota v. United States, 471 U.S. 419, 433, 105

S.Ct. 2084, 85 L.Ed.2d 434 (1985). As such, the doctrine holds that the actor

is effectively put on notice that his or her conduct may be subject to potential

regulation and the burden shifts to the actor to “ascertain at his [or her]

peril” the legality of the conduct. Staples v. U.S at 607. Notice of regulation,

then, is the cornerstone of the public welfare doctrine.

In the case of statutory rape, Courts have held that by engaging in

sexual activities with someone who is not that person’s spouse, the actor is on

9

notice that he or she is engaging in a type of activity that is highly regulated

under the law. While this position may have arguably made sense in the past,

Georgians and Americans no longer live in a society where consensual sexual

activity is highly regulated. Far behind us are the days where consenting

adults are convicted for adultery, fornication and sodomy.

As Justice Kennedy stated in Lawrence v. Texas, 539 U.S. 558, 123

S.Ct. 2472, 2480, 156 L.Ed.2d 508 (2003), “our laws and traditions in the past

half century . . . show an emerging awareness that liberty gives substantial

protection to adult persons in deciding how to conduct their private lives in

matters pertaining to sex.” Thus, it is no longer valid to consider the actor “on

notice,” within the meaning of the public welfare doctrine simply because he

or she is engaging in sex outside of marriage, as our society recognizes a

liberty interest in the way consenting adults choose to conduct their sex lives.

On this point alone, statutory rape should fall outside the reaches of the

public welfare doctrine. See Liparota v. United States, 471 U.S. 419, 433, 105

S.Ct. 2084, 85 L.Ed.2d 434 (1985) (“Congress has rendered [public welfare

offenses as the type of offenses] that a reasonable person should know is

subject to stringent public regulation.”).

While the Supreme Court of the United States has not decided the

issue of whether statutory rape should still be considered a public welfare

offense, it has decided several other cases that insinuate statutory rape and

10

strict liability are no longer compatible. For instance, in Staples v. United

States, 511 U.S. 600, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994), the Defendant

was charged with unlawful possession of an unregistered machine gun. The

Government argued that they did not have to prove the defendant knew of

the characteristics that made his gun an illegally unregistered machine gun

because possession of an unregistered firearm was a public welfare offense.

The Court did not agree.

In holding that the Defendant’s knowledge was relevant to the charge,

the High Court distinguished the facts from those in United States v. Freed,

401

U.S. 601, 91

S.Ct. 1112, 28

L.Ed. 2d

356 (1971). In Freed, the

Defendant was prosecuted for unlawful possession of unregistered grenades,

the Defendant knew he was in possession of grenades and the Court held

that the Government did not need to prove that the Defendant also knew the

grenades were unregistered. The majority in Staples held that unlike the

grenades, “possession of which was not entirely ‘innocent’ in and of itself,”

because possession of an unmodified gun could be totally innocent. United

States v. Staples, 511 U.S. 600 at 610 (“[T]he fact remains that there is a

long tradition of widespread lawful gun ownership by private individuals in

this country.”). Thus, in order to avoid “criminaliz[ing] a broad range of

apparently innocent conduct,” the Government must prove that the defendant

knew he possessed an illegal machine gun. Id.

11

The same must be mandated about an actor who engages in

consensual sexual activity with a person he or she believes to be of consenting

age. “For both Staples and the mistaken statutory rape defendant, if the

circumstances were as they believed them to be, both actors would be

engaging in conduct that is within the contemplated range of lawful

behavior.” Catherine L. Carpenter, Article on Statutory Rape, Strict Liability,

and the Public Welfare Offense Model, 53 Am U.L. Rev. 313 (2003). Thus, the

Defendant’s knowledge of the victim’s age (or lack thereof) must be an

essential element in determining whether he or she knew the potential

criminality of the act.

However, as stated above, since the teaching in Lawrence v. Texas,

supra, it has been made very clear that sexual relations between consenting

adults are fairly free from regulation. Thus, a Defendant’s belief that the

victim is of consenting age is highly relevant in determining whether the

accused was aware of the criminality of his conduct. On the other hand, if

this quote is not referring to the public welfare doctrine, not only is it

unsupported by any authority but it also defies logic. If the victim was

actually the age the Defendant believed her to be, to wit: over the age to be

able to consent, and the two had consensual sex, there would be absolutely

nothing criminal about this interaction. Thus, the act would be legally

justified within the meaning of the statute. See United States v. X-Citement

12

Video, 513 U.S. 64, 69-70 (1994)(“one would reasonably expect to be free from

regulation when trafficking in sexually explicit, though not obscene,

materials involving adults [as this is completely legal conduct]. Therefore, the

age of the performers is the crucial element separating legal innocence from

wrongful conduct.”).

The decision of the Court of Appeals on the State’s Motion in Limine

followed Hayward v. State. However, the case law subsequent to Haywood

has allowed such evidence to be introduced in Davis and Castaneria as the

panel decision characterized as dicta. See Davis v. State, 329 Ga. App. 17

(2014); Castaneira v. State, 321 Ga. App. 418 (2013). Thus, in the instant

case, a mistake of fact charge should be permitted where the alleged victim

misrepresented her age to the Defendant. Prohibiting Defendant from raising

this defense will adversely affect his right to a fair trial, especially where the

mistake of fact charge has been allowed in similar cases. The statutory rape

statute O.C.G.A. § 16-6-3 states: “A person commits the offense of statutory

rape when he or she engages in sexual intercourse with any person under the

age of 16 years and not his or her spouse, provided that no conviction shall be

had for this offense on the unsupported testimony of the victim.”

The plain language of the statutory rape statute does not prohibit the

use of a mistake of fact defense and must be considered in conjunction with

O.C.G.A §16-3-5 a mistake of fact defense contained in OCGA§16-3-5 and the

Georgia Pattern of Jury Instructions provide for the mistake of fact defense.

13

Georgia Pattern of Jury Instructions by the Counsel of Superior Court Judges

of Georgia 1.41.50 and 3.40.10 provide a mistake of fact instruction with

regard to intent for all crimes: “A person shall not be found guilty of a crime if

the act (or omission to act) constituting the crime was induced by a

misapprehension of fact that, if true, would have justified the act or

omission.” O.C.G.A§ 16-3-5. Tant v. State, 158 Ga. App. 624 (1981) later cited

by Haywood v. State, declared that a reasonable belief that the alleged victim

was of age was not a defense to statutory rape. However, Tant v. State, a case

from 1981, relied solely on American Jurisprudence for this statement of law

and the subsequent case of Haywood v. State relied on Tant v. State for its

holding prohibiting a mistake of fact defense in statutory rape cases without

considering the general common law allowing for a mistake of fact as a

defense. “At common law an honest and reasonable belief in the existence of

circumstances, which, if true, would make the act for which the person is

indicted an innocent act, has always been held to be a good defense.” People v.

Hernandez, 61 Cal. 2d 529 (1964).

The mistake of fact defense was codified in the Model Penal Code that

allows a mistake of age defense for a statutory rape charge: “When

criminality depends on the child's being below a critical age other than 10, it

is a defense for the actor to prove by a preponderance of the evidence that he

reasonably believed the child to be above the critical age.” Model Penal Code

§ 213.6(1).

14

The Supreme Court of the United States stated in Staples v. U.S., 511

U.S. 600 (1994) that the requirement of some mens rea for a crime is “firmly

embedded” in common law and mens rea is the “rule rather than the

exception to Anglo-American criminal jurisprudence.” Staples at 605. This

rule requiring mens rea has been followed “in regard to statutory crimes even

where the statutory definition did not include it.” Staples v. U.S. at 605-06

(quoting U.S. v. Balint, 258 U.S. 250 (1992). There must be some indication of

legislative intent, express or implied, to dispense with mens rea as an

element of a crime. Staples at 606.

In the instant case, the Defendant’s mistake of fact defense is

potentially his sole defense and Defendant should be permitted to present

evidence of this defense at trial. More than fifty years ago the Supreme Court

of California faced the same issues as to why there should not be a conclusive

presumption of lack of ability of a female less than sixteen years of age to

consent to intercourse and that a defendant could not raise as a defense

justifiable reliance upon a mistake of fact that the alleged victim as of age.

In People v. Hernandez, 61 Cal. 2d 529 (1964) the Supreme Court of

California came to the conclusion that criminal offenses need be accompanied

by the proper mens rea stating: “The primordial concept of mens rea, the

guilty mind, expresses the principle that it is not conduct alone but conduct

accompanied by certain specific mental states which concerns, or should

concern, the law. In a broad sense the concept may be said to relate to such

15

important doctrines as justification, excuse, mistake, necessity, and mental

capacity. In the final analysis, it means simply that there must be a ‘joint

operation of act and intent.” People v. Hernandez, at 532. “If [defendant]

participates in a mutual act of sexual intercourse, believing his partner to be

beyond the age of consent, with reasonable grounds for such belief, where is

his criminal intent?” People v. Hernandez at 534.

The seminal case of People v. Hernandez recognized the contradiction

to public policy of a rigid interpretation of statutory rape law, a crime which

requires the factual existence of a minor under the age of sixteen. “The issue

raised by the rejected offer of proof in the instant case goes to the culpability

of the young man who acts without knowledge that an essential factual

element exists and has, on the other hand, a positive, reasonable belief that it

does not exist.” People v. Hernandez at 532.

As discussed by People v. Hernandez, the law has long been concerned

with protecting the “social, moral and personal values” particularly of

teenaged females because sexual activity is viewed as doing “harm to herself

and the social mores by which the community’s conduct patterns are

established.” People v. Hernandez at 531. However, these concerns do not give

any consideration to the choice of the teenaged female to misrepresent her

age and have sexual relations with older partners. Even though the statutory

rape law is meant to punish sexual conduct in such an instance, the goal of

preventing harm to a teenaged child is not accomplished by penalizing the

16

individual who had a reasonable belief that the alleged victim was of the age

of consent due to the misrepresentations of the alleged victim herself.

Other states have reached a similar conclusion that a mistake of fact

defense should be allowed in statutory rape cases. The Supreme Court of

Alaska recognized a constitutional violation of due process in failure to allow

a mistake of age defense for statutory rape stating that “consciousness of

wrongdoing is an essential element of penal liability.” State v. Guest, 583

P.2d 836 (1978) (superseded by legislation). Alaska’s legislature, tracking the

ruling in State v. Guest, amended the statutory rape statute to include

mistake of age as a defense. Alaska Stat. §11.41.445(b).

The Supreme Court of New Mexico also reached a similar conclusion in

Perez v. State, 111 N.M. 160, 162 (1990) where the Court held that even

though the legislature had repealed a portion of New Mexico’s statutory rape

statute providing for a mistake of age defense, the legislature’s failure to

state a prohibition of a mistake of fact defense for statutory rape meant that

the defendant should have been allowed to present a mistake of fact defense.

Some states have recognized the unfairness of strict liability for

statutory rape and have enacted statutes that allow for reasonable mistake of

age as a defense to statutory rape, including Pennsylvania (18 Pa.C.S. §

3102), Montana (§ 45-5-511, MCA), Colorado (C.R.S. § 18-1-503.5), Tennessee

(Tenn. Code Ann. § 39-11-502), Indiana (IC § 35-42-4-9(c)), Kentucky (K.R.S.

§510.030), Maine (17-a M.R.S. § 254(2)), Minnesota (Minn. Stat. §609.345)

17

and Ohio’s Code regarding statutory rape requiring a knowledge of age if the

alleged victim is older than 13 but less than 16 (ORC Ann. §2907.04).

Not only is the reasoning of this case outdated but it is also a tad

shaky. First, while mistake of age may have only been recognized by two

States in 1981, today twenty-one States recognize the defense. So, although

Appellee may be correct in saying that the Tant Court dismissed the Alaska

and California rules, they were the only two States with mistake of age rules

in effect at the time. No longer is this defense such an abstract idea, as

demonstrated by the fact that forty-two percent of the States in this country

have now recognized such a defense. Moreover, as stated above, most States

that did not originally allow for mistake of age defense did so based on the

public welfare doctrine, which is no longer viable for statutory rape.

However, as stated above, since the teaching in Lawrence v. Texas,

supra, it has been made very clear that sexual relations between consenting

adults are fairly free from regulation. Thus, a Defendant’s belief that the

victim is of consenting age is highly relevant in determining whether the

accused was aware of the criminality of his conduct. If the victim was actually

the age the Defendant believed her to be, to wit: over the age to be able to

consent, and the two had consensual sex, there would be absolutely nothing

criminal about this interaction. Thus, the act would be legally justified within

the meaning of the statute. See United States v. X-Citement Video, 513 U.S.

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64, 69-70 (1994) (one would reasonably expect to be free from regulation

when trafficking in sexually explicit, though not obscene, materials involving

adults [as this is completely legal conduct]. Therefore, the age of the

performers is the crucial element separating legal innocence from wrongful

conduct.”).

In granting the State’s Motion in Limine, the trial court furthered a

practice of denying due process and justice to those who have unknowingly

committed statutory rape and therefore must suffer the consequences for an

act that they reasonably believed to be perfectly legal at the time

CONCLUSION

It is submitted that the Court should grant this Petition for Writ of

Certiorari when the Petitioner has been denied his sole defense that he

reasonable believed that the alleged victim was of age and Defendant’s entire

video statement should be admitted without redaction.

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Respectfully submitted,

______________________________

McNeill Stokes

Ga Bar No.: 683600

Attorney for Petitioner

Keddron Rakee West

5372 Whitehall Pl SE

Mableton, GA 30126

Tel: 404-352-2144

Email: mcstokes@bellsouth.net

_________________________________

Brian Steel

Ga Bar No.: 677640

Attorney for Petitioner

Keddron Rakee West

1800 Peachtree St NW #300,

Atlanta, GA 30309

Tel: 404-605-0023

Email: thesteellawfirm@msn.com

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