Full opinion text
OPINION MEYERS, J., delivered the opinion of the Court, in which KEASLER, HERVEY, COCHRAN, and ALCALA, JJ., joined. Appellant, Mark Alexander Fleming, was charged with four counts of aggravated sexual assault under Texas Penal Code Section 22.021(a)(l)(B)(iii), (2)(B). He; filed a motion to quash the indictment on the basis that the statute is unconstitutional for failing to require the State to prove that he had a culpable mental state related to the victim’s age and for failing to recognize an affirmative defense based on the defendant’s reasonable belief that the victim was 17 years of age or older. The trial court denied the motion. Appellant entered a plea of “no contest,” filed an application for community supervision, and invoked his right to have the jury determine punishment. On the second day of testimony, one of the jurors informed the court that his son had dated the victim. In order to avoid a mistrial, the State and Appellant entered into a plea agreement for a ten-year probated sentence. Appellant appealed the trial court’s denial of his motion to quash. The court of appeals overruled Appellant’s federal constitutional claims and affirmed the trial court’s judgment. We remanded the case to the court of appeals to consider Appellant’s state constitutional claims, and the court of appeals again affirmed the trial court. Appellant filed a petition for discretionary review, which we granted to consider whether Penal Code Section 22.021 is unconstitutional under the Due Process Clause of the Fourteenth Amendment and the Due Course of Law provision of the Texas Constitution because it fails to require the State to prove that the defendant had a culpable mental state regarding the alleged victim’s age, and fails to recognize an affirmative defense based on the defendant’s reasonable belief that the alleged victim was 17 years of age or older. We will affirm the court of appeals. FACTS Appellant testified that in April of 2007 he received a text message from a girl, K.M., who said that she had obtained his phone number from her friend. When Appellant asked her age, she replied that she was 22 years old. K.M. was actually 13 years old. The two corresponded by text message and talked on the phone for a week or two and then arranged to meet, at the mall for a date. Both Appellant and K.M. testified that on their first date they went to a movie and drag races at a race track, after which Appellant drove K.M. home. Appellant stated that KM. told him that her mother and step-father lived with her because they had lost their home. After their second date to dinner and a movie, Appellant asked K.M. if she wanted to spend the night with him at the hotel where he had been staying. Appellant testified that K.M. said that she did want to go to his hotel but that she was not ready for them to have sexual relations at that time. Appellant said that he agreed and that they went to sleep upon arrival at the hotel. Appellant testified that when he awoke early the next morning, KM. was “messing with” him in a way that indicated that she wanted to have sex. He asked her if she was sure, and she said that she was. Appellant and KM. continued dating and having sex from April to May of 2007. Later that year, KM.’s mom found a love letter that Appellant had written to K.M. Appellant, who was 25 years old at the time, wrote in the letter, “I no you 4 years or 5 years younger then me but I love you.” When her mom confronted her about the letter, K.M. initially denied the relationship. When K.M. admitted that she did have sex with Appellant, her mom called the police. Appellant was cooperative during questioning by the police and told the officer about the relationship. He told the officer that he did not know that KM. was under age when he dated her. At trial, Appellant testified that he believed that K.M. was 22 years of age because both K.M. and her friend had told him that she was 22 years old, and because K.M. had told him that she was a student at the University of North Texas majoring in criminal justice. He also testified that He had seen on her MySpace page, which was entered into evidence by the defense, that she was 20 years old and was a student at UNT. The MySpace page entered into evidence by the defense also contained photos of K.M. that were taken around the time she was dating Appellant. K.M. denied having told Appellant that she was 22 years old and testified that someone else must have changed her MySpace page. She said she did not know if Appellant knew that she was under age when they dated. The State presented evidence that Appellant had previously dated a friend of K.M.’s mom, who sometimes babysat K.M. when she was younger. The State said that K.M. would have been 11 years old when Appellant first met her at her mom’s house. K.M. said that Appellant had been to her mother’s house in the past but she did not know if he remembered meeting her then. Appellant agreed to a ten-year probated sentence and retained the right to appeal the trial court’s denial of his motion to quash. He appealed, arguing that Penal Code Section 22.021 is unconstitutional due to its failure to require proof that he had •knowledge that his victim was younger than 17 years of age and for not recognizing an affirmative defense based on the defendant’s reasonable belief that the victim was 17 years of age or older. COURT OF APPEALS On remand from this Court, the court of appeals held that Section 22.021 does not offend notions of Due Process or Due Course of Law. The court stated that the texts of both the Due Course of Law provision and the Due Process Clause are virtually identical and that the Due Course of Law provision' provides the same protections as the Due Process Clause. The court reasoned that the strict-liability aspect of statutory-rape laws is widely known and is a recognized exception to the general requirement of mens rea in criminal statutes. The court of appeals rejected Appellant’s reliance on United States v. X-Citement Video, 513 U.S. 64, 73, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994), and said that the reasoning from X-Citement does not apply here because Section 22.021 involves personal contact with the underage victim and the ability to ascertain true age, while the possession of visual depictions of minors does not. The court of appeals determined that there is not a fundamental right to a mens rea component or a mistake-of-age defense in a statutory rape statute. Thus, as long as the statute is reasonably related to a legitimate state objective, it does not impinge on a substantive. due-process right. The court of appeals concluded that strict liability regarding the age of the minor furthers the legitimate government interest in protecting children from sexual abuse by placing the risk of mistake on the adult actor. The court of appeals overruled Appellant’s points of error and affirmed the judgment of the trial court. ARGUMENTS OF THE PARTIES Appellant presents a facial challenge to the statute’s lack of a mens rea as to the victim’s age. He raises an as-applied challenge to the court’s failure to allow him to present a mistake-of-fact defense. Specifically, he argues that he had an objectively and subjectively reasonable belief that the victim in this case was over the age of 17. Appellant states that under early English and American Common Law, the knowing act of engaging in consensual sex with another when not sanctioned by the legal bonds of marriage was a legal and moral wrong, and that legal wrong sufficed as a substitute for mens rea in the statutory rape context. Appellant argues that, because such acts are no longer legally wrong, there is nothing to substitute for a mem rea element in Section 22.021 and it is unconstitutional to enforce the statute without the mens rea element that is essential in every felony charge. Appellant claims that in Lawrence v. Texas, 539 U.S. 558, 128 S.Ct. 2472, 156 L.Ed.2d 508 (2003), the United States Supreme Court extended the Due Process Clause’s protection of liberty to the intimate choices of unmarried persons. Appellant cites X-Citement, stating that when a statute is completely bereft of a scienter requirement as to the age of the victim, and the age of the victim is the crucial element separating legal innocence from wrongful conduct, the statute raises serious constitutional doubts. Appellant argues that, because the physical act identified in Section 22.021(a)(l)(B)(iii) is entitled to constitutional protection, the complete absence of a mens rea requirement as to the age of the victim renders the statute constitutionally void. Appellant states that the framers of the Texas Constitution would have considered an ignorance-of-fact defense as a fundamental right so as to not punish those who, through no fault of their own, have been misled. Finally, Appellant argues that it is unfair for him to be considered a “sexual predator” when no evidence exists of any intent to do a legal or moral wrong and no evidence exists to indicate that he is a threat to the community. The State argues that the court of appeals properly concluded that Appellant’s fundamental rights were not implicated and that Section 22.021 serves a legitimate state purpose. The State says that the cases cited by Appellant do not support his argument that Section 22.021 is unconstitutional. For example, the State argues that the reasoning from X-Citement Video does not apply here because, unlike a defendant who does not know the age of a person depicted in a video, Appellant spent a significant amount of time with the victim and had ample time to ascertain her age. The State says that Lawrence v. Texas supports the constitutionality of Section 22.021 because the Court in Lawrence emphasized that it was recognizing the right of adults to engage in consensual conduct. The State argues that the Due Course of Law Clause and the Due Process Clause afford the same protection and that neither the history nor the application of the Due Course of Law provision supports a conclusion that Section 22.021 violates the Texas Constitution. The State notes that, although some states allow a mistake-of-age defense, the majority rule is that excluding knowledge of the victim’s age as an element of the statutory rape offense does not violate Due Process. Finally, the State argues that the legislature has an interest in protecting the safety of children and that only the legislature should make changes to a statute that serves to protect children from sexual abuse. CASE LAW The mistake-of-age defense was raised and rejected in the 1876 English case of Regina v. Prince, 13 Cox, Criminal Cases 138 (Eng.Crim.App.1876). In Prince, the defendant was charged with unlawfully taking a girl under the age of 16 out of the possession of her father against his will. The defendant claimed that he acted on the reasonable belief that the girl was 18 years of age. The court held that it was no defense that he thought he was committing a different kind of wrong from that which he was, in fact, committing, it being wrong to remove a daughter, even one over the age of 16, from her father’s household. Id. at 141-42. Citing previous cases, the court stated that “any man who dealt with an unmarried female did so at his own peril, and if she turned out to be under sixteen years old he was liable under this statute.” Id. at 139. Although the issue in Prince was mistake of age as to abduction, early American courts applied Prince to statutory rape as well. The reasoning from Prince has been used to justify denying the mistake-of-age defense and imposing strict liability against those accused of statutory rape. In Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), the Supreme Court discussed strict liability offenses and noted that, while there must usually be a “vicious will” to constitute a crime, there are exceptions to this rule, including rape cases in which age is the determinative factor, despite the defendant’s reasonable belief that the victim was over the age of consent. For strict liability crimes, there is no “guilty mind” requirement, and the actor does not have to possess the mens rea to commit any crime. In such strict-liability offenses, the actor’s state of mind is irrelevant, and he is guilty of the crime at the moment he commits the prohibited act. Most strict liability statutes are associated with the protection of public health, safety, or welfare, such as those involving air and water pollution, sale of adulterated food, and traffic and motor-vehicle laws. Id. at 254-55, 72 S.Ct. 240. Statutory rape, however, is distinguishable in that the act of sexual intercourse is not a crime except in certain circumstances, such as when the other person has not consented to the act or when the other person is deemed unable to consent due to his or her age. DISCUSSION Mens rea as to the age of the victim While it is indeed widely known that “16 "will get you 20,” and precocious young girls have commonly been referred to as “jail bait,” such colloquialisms address only the understanding that even consensual sex with someone underage is a violation. These phrases indicate knowledge of the sexual partner’s young age as opposed to an understanding that knowledge of the age is unnecessary. Texas Penal Code does not specify that mens rea as to the age of the victim is unnecessary, however, under federal law, “the Government need not prove that the defendant knew that the other person engaging in the sexual act had not attained the age of 12 years.” See 18 U.S.C. § 2241(d). See also 18 U.S.C. § 2243(d) (“In a prosecution for sexual abuse of a minor between the ages of 12 and 16, the Government need not prove that the defendant knew the age of the other person engaging in the sexual act”). It is clear that the Texas legislature intends for age to be an aggravating element in certain offenses and does not intend for the State to be required to prove that the defendant knew the age of the victim. For example, the sexual assault statutes delineate the severity of the offense based in part on the age of the victim. Specifically, Penal Code Section 22.011(a)(2) covers sexual assault of a child under the age of 17. However, when the victim is younger than 14 years of age, the offense is aggravated sexual assault under Penal Code Section 22.021. Similarly, murder under Penal Code Section 19.02 may increase to capital murder under Section 19.03 if the victim is under 10 years of age. There is no mens rea as to age listed in either the sexual assault or murder statutes and there is no fundamental right to a mens rea element regarding the age of the victim in these contexts. Because this statute serves the legitimate state objective of protecting children, we will not read a mens rea element into the statute and do not believe that failure to require mens rea as to the victim’s age violates the federal or state constitution. The statutory prohibition of an adult having sex with a person who is under the age of consent serves to protect young people from being coerced by the power of an older, more mature person. The fact that the statute does not require the State to prove mens rea as to the victim’s age places the burden on the adult to ascertain the age of a potential sexual partner and to avoid sexual encounters with those who are determined to be too young to consent to such encounters. If the adult chooses not to ascertain the age of a sexual partner, then the adult assumes the risk that he or she may be held liable for the conduct if it turns out that the sexual partner is under age. Mistake-of-fact defense While both the sexual assault and the murder statutes specify a more severe punishment based on the age of the victim, neither offense contains a provision that allows for a mistake-of-fact defense as to the age of the victim. Under Penal Code Section 8.02(a), “It is a defense to prosecution that .the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for the commission of the offense.” Because Section 22.021 requires no culpability as to the age of the victim, there is nothing for the defendant’s mistaken belief to negate, and his mistake cannot be a defense to prosecution. Appellant asks for an affirmative defense so that he may claim that even though the allegations in the indictment are true, he should not be convicted due to his assertion that he did not know that K.M. was 13 years of age. The legislature’s intent of protecting children from sexual assault is clear, and it outweighs any claim of the right to present a mistake-of-age defense. When a defendant voluntarily engages in sexual activity with someone who may be within a protected age group, he should know that there may be criminal consequences and there will be no excuse for such actions. When it comes to protecting those who are unable, due to their tender age, to consent to sexual activity, the legislature simply does not allow any variance. It would be unconscionable for us to allow a 25-year-old man who was having sex with a 13-year-old child to claim that his actions were excused because he reasonably believed that he was having sex with an adult. Such a defense is precluded by the overriding interest in protecting children. CONCLUSION Texas Penal Code Section 22.021 is not unconstitutional under the Due Process Clause of the Fourteenth Amendment or the Due Course of Law provision of the Texas Constitution for failing to require the State to prove that the defendant had a culpable mental state regarding the victim’s age or for failure to recognize an affirmative defense based on the defendant’s belief that the victim was 17 years of age or older. The decision of the court of appeals is affirmed. COCHRAN, J., filed a concurring opinion. ALCALA, J., filed a concurring opinion. KELLER, P.J., filed a dissenting opinion in which PRICE and JOHNSON, JJ., joined. WOMACK, J., concurred. . Unless otherwise noted, all references to Sections refer to the Texas Penal Code. . The house Appellant had previously visited was not the same house where he dropped off K.M. after their dates. . See, e.g., Brown v. State, 74 A. 836, 841 (Del.1909) (finding that statements of age made by the statutory rape victim and the defendant’s reasonable belief about her age were “irrelevant and immaterial”); State v. Basket, 111 Mo. 271, 19 S.W. 1097 (1892) (refusing a reasonable mistake-of-age defense for statutory rape of a twelve-year-old girl); Lawrence v. Commonwealth, 71 Va. 845, 854-55 (1878) (finding that the lower court did not err by refusing to give jury instructions that the defendant could not be found guilty of statutory rape based on a reasonable mistake-of-age defense). . We note that Penal Code Section 19.03(a)(1) requires the State to prove that the defendant knew that the victim was a peace officer or fireman in order for the offense to increase from murder to capital murder. This indicates to us that when the legislature wants to require the State to prove that the offender knew the status of the victim, such a requirement is clearly stated in the statute.
COCHRAN, J., filed a concurring opinion. For the reasons set out in my concurring opinions in Cells v. State and Farmer v. State,I believe that the Texas statutory mistake-of-fact defense already applies to the offense of consensual statutory rape. Nonetheless, I recognize that this is not the current state of the law in Texas, and therefore I reluctantly join the majority opinion. . 416 S.W.3d 419, 441-58 (Tex.Crim.App.2013) (Cochran, J., concurring). . 411 S.W.3d 901, 908-18 (Tex.Crim.App.2013) (Cochran, J., concurring).
ALCALA, J., filed a concurring opinion. I wholeheartedly join the majority opinion’s affirmance of the conviction of Mark Alexander Fleming, appellant, for aggravated sexual assault of a child. I write separately to further discuss why I believe that (1) this Court’s decision is consistent with Supreme Court precedent, (2) emerging technology may be less consequential in these cases than it may appear at first blush, (3) permitting a mistake-of-fact defense would negatively impact the reporting and prosecution of this type of crime, and (4) appellant’s claim of mistake of fact is unreasonable even if this Court were to recognize the propriety of a such a defense. 1. The Majority Opinion is Consistent With Supreme Court Precedent Although, as a general principle, criminal intent must be proven beyond a reasonable doubt to sustain a conviction, the Supreme Court has repeatedly observed that proof of the age of a child in a prosecution for statutory rape is an exception to that general rale. See Morissette v. United States, 342 U.S. 246, 251, 72 S.Ct. 240, 244, 96 L.Ed. 288 (1952). In Morissette, the Supreme Court described the historical recognition by common-law commentators that there are “a few exceptions” to the “sweeping statement that to constitute any crime there must first be a ‘vicious will.’ ” Id. It stated, “Exceptions came to include sex offenses, such as rape, in which the victim’s actual age was determinative despite defendant’s reasonable belief that the girl had reached age of consent.” Id. at 251 n. 8, 72 S.Ct. 240. Decades after the Morissette decision, the Supreme Court reaffirmed this principle in United States v. X-Citement Video, Inc., 513 U.S. 64, 72 n. 2, 115 S.Ct. 464, 469, 130 L.Ed.2d 372 (1994). In X-Citement Video, the Supreme Court stated, “Morissette’s treatment of the common-law presumption of mens rea recognized that the presumption expressly excepted ‘sex offenses, such as [statutory] rape[.]’ ” Id. (quoting Morissette, 342 U.S. at 251 n. 8, 72 S.Ct. 240). Distinguishing, on one hand, child-pornography distribution offenses, which would require proof of criminal intent as to the age of the child, from statutory rape, which, on the other hand, would not require proof of that intent, the Supreme Court explained that the rapist “confronts the underage victim personally and may reasonably be required to ascertain that victim’s age.” Id. In each of these instances, the Supreme Court has suggested that a defendant who has had personal sexual contact with a child-complainant is unreasonable in claiming that he was unaware that the child was not an adult. See id. In none of these cases has the Supreme Court suggested that it is unconstitutional to place the burden on the adult to affirmatively determine that a sexual partner is actually an adult rather than a child. See id. In its more recent decision in Lawrence v. Texas, the Supreme Court did not suggest that due process would require a mistake-of-fact defense as to the age of the child in a prosecution for a sexual offense. See Lawrence v. Texas, 539 U.S. 558, 569, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). Rather, in deciding whether due process would extend to protect the right of homosexual adults to engage in consensual sex, the Supreme Court in Lawrence described the difference between Texas’s sodomy law that Texas was enforcing against two consenting adults as compared to the historical origin of sodomy laws. It explained that, in the 19th century, [l]aws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private. A substantial number of sodomy prosecutions and convictions for which there are surviving records were for predatory acts against those who could not or did not consent, as in the case of a minor or the victim of an assault.... Instead of targeting relations between consenting adults in private, 19th-century sodomy prosecutions typically involved relations between men and minor girls or minor boys, relations between adults involving force, relations between adults implicating disparity in status, or relations between men and animals. Id. (emphasis added). In deciding that the enforcement of sodomy laws against two consenting adults violated due process, the Supreme Court distinguished that situation from 19th-century laws that prohibited sexual acts with children or non-consenting adults, which were not unconstitutional. Id. at 578, 123 S.Ct. 2472 (“The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused.”). Texas’s view in enforcing sodomy laws against two consenting adults, therefore, was inconsistent with the historical application of those laws to protect a child from having sexual relations with an adult, as here. Id. Furthermore, and of particular relevance to the issues presently before this Court, nothing in Lawrence suggests that a defendant has a constitutional right to a mistake-of-fact defense as to his belief about the age of a child who was thirteen years old at the time of a sexual offense. Id. at 578-79, 123 S.Ct. 2472. The issue in Lawrence, as described by the Supreme Court, was “whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty” under due process. Id. at 564, 123 S.Ct. 2472. The Court emphasized that “as a general rule,” the State should avoid “defining] the meaning of the relationship or to set its boundaries absent injury to a person or abuse .of an institution the law protects,” and it further noted that its decision was rooted in the principle “that adults may choose to enter upon this relationship in the confines of their homes and their own private fives and still retain their dignity as free persons.” Id. at 567, 12B S.Ct. 2472. The Court concluded that its ruling did not involve minors, non-consenting or coercive relationships, public conduct, or prostitution, but rather “two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle.” Id. at 578, 123 S.Ct. 2472. The holding in Lawrence was thus limited to a situation involving two consenting adults, a matter in which there is “no legitimate state interest,” but that decision cannot rationally be used as a basis to argue that the same standard should apply when the State has a legitimate interest at stake, that of protecting children from sexual abuse. See id. In Lawrence, as in its earlier deei-sions, the Supreme Court has carefully drawn lines to ensure that the State remains free to enact legislation that gives effect to its legitimate interest in the protection of children. See id. Because a mistake-of-age defense is not constitutionally required, only a minority of jurisdictions permit this defense under similar facts. Consistent with Supreme Court precedent, Texas’s aggravated-sexual-assault statute does not prescribe any mental state as to the age of a child in a prosecution under that statute. See Tex. Penal Code § 22.021(a)(1)(B). Under Texas law as dictated by the Legislature, the offense of aggravated sexual assault of a child does not require the State to provide evidence that the defendant was aware of a child-complainant’s age at the time of the offense, nor does it allow a defendant to raise a defense on that basis. See id. This Court has repeatedly observed that the statutory language neither requires proof of mens rea as to the child’s age nor provides for a mistake-of-age defense. I conclude that this Court must abide by Supreme Court precedent and Texas law as written, rather than legislate from the bench by creating a non-statutory defense where none is required. I, therefore, agree with the majority opinion that, under Supreme Court precedent, the federal Constitution does not require that a defendant be afforded a mistake-of-fact defense as to a child-complainant’s age and that this is a matter solely for the Texas Legislature to determine. II. Existence of Emerging Technology May Be Inconsequential Anyone can easily see that children now, unlike historically, have unprecedented access to emerging technology, cell phones, texts, and social media web sites. Amd children may falsify their ages on a web site or take Glamour Shots that make them appear older. Had this complainant and appellant never met in person, facts like these would likely be a good reason to explain how technological developments might impact this case. But this is not a situation where impersonal communication took place over an electronic medium, or under circumstances in which an adult may have been unaware that the person on the other end of the electronic communication was a child. Here, appellant and the complainant met in person and engaged in sexual intercourse on multiple occasions. The fact that some children will misstate their age on web sites and that this may consequently mislead someone who has never met them as to their age presents a completely different situation from one involving a defendant who engages in person-to-person, intimate sexual contact with a child. Sexual intercourse between an adult and a minor that occurred in the pre-cell phone era is fundamentally no different than the nature of its occurrence now. Nothing about this intimate sexual contact has changed an adult’s historical burden to make himself aware of the age of the child. It is the adult’s responsibility to ascertain the true age of the child, particularly one who is thirteen years of age or younger. See Tex. Penal Code § 22.021(a)(2)(B). The Supreme Court’s description of the situation is as applicable now as it was six decades ago: The rapist “confronts the underage victim personally and may reasonably be required to ascertain that victim’s age.” X-Citement Video, 513 U.S. at 72 n. 2, 115 S.Ct. 464 (citing Morissette, 342 U.S. at 251 n. 8, 72 S.Ct. 240). Although I remain unpersuaded that emerging technology compels us to constitutionally require a mistake-of-fact defense under these circumstances, as a matter of public policy, it may be appropriate for the Legislature to consider whether to permit such a defense for older, high-school-aged teenagers with a limited right of consent. Here, the dissenting opinion is advocating for a mistake-of-fact defense that would apply to situations involving younger, middle-school-aged children. Assuming a child begins kindergarten at the age of five, that child will be thirteen years old at the beginning of eighth grade, which is in middle school in Texas, and will be fourteen years old at the beginning of ninth grade, which is in high school. As a matter of law, no adult should be able to claim that he was reasonably mistaken that a middle-school-aged child was an adult. I continue to believe that this defense is inappropriate in cases involving children who are thirteen years of age and younger because those children are statutorily incapable of giving any kind of consent. See Tex. Penal Code § 22.021(a)(2)(B). In any event, this determination is ultimately for the legislative branch alone to make, rather than the judicial branch. III. Permitting a Mistake-of-Fact Defense Would Negatively Impact Reporting and Prosecution of Child Sex Offenses It is suggested that if this Court were to permit it, the mistake-of-fact defense would apply only in rare cases when a defendant could produce evidence demonstrating that he harbored a reasonable but mistaken belief as to the age of the child with whom he engaged in sexual contact. This suggestion underestimates the probable impact of this Court’s adoption of such a defense, which, if permitted, would be raised in virtually any case in which a defendant could plausibly claim that he was unaware of the complainant’s age. At trial, knowing that he would be acquitted if a jury believed his testimony, a defendant could testify that he believed the child-complainant, even one as young as ten years of age, appeared to be above the age of consent. His defense strategy would be to show that his belief was reasonable by asking questions of the child and her family designed to convince the jury that she did things to make herself look and sound older than her actual age. Furthermore, if the mistake-of-fact defense were constitutionally required as suggested by the dissenting opinion, the trial court would be compelled to permit the defense attorney to ask the following types of questions of the complainant: whether she wore makeup; how she wore her hair; whether she wore skinny jeans or mini skirts; whether she had been through puberty, was developed, and wore a bra, and, if so, what size; what types of books, movies, videos, and music she enjoyed; whether she had a cell phone or texted people; whether she had a Facebook page and what kinds of pictures she posted there; what her friends looked like and how old they were; whether she was permitted to date; whether she ever broke her parents’ rules; and other personal and embarrassing questions. The trial would be converted from one that judges the defendant’s conduct to one that places the victim and her family on trial. Avoiding this type of victim-bashing was precisely why rape shield laws were passed decades ago. See Tex.R. Evid. 412 (prohibiting evidence of past sexual behavior of sexual-assault victim). Rape shield laws became necessary because the possible introduction at trial of embarrassing details about a rape victim’s sexual history was deterring victims from reporting crimes and testifying in court. If this Court were to permit a mistake-of-fact defense under the misguided belief that it was constitutionally required, then trial-court judges would be similarly constitutionally required to permit defense interrogations posed to young children and their families about embarrassing personal matters. The likely result would be the re-victimization of these young sexual-assault victims at each of their respective trials. The farther reaching consequence would be to deter children and their families from reporting sex offenses out of fear that they too would be subjected to humiliation and embarrassment in the courtroom. Absent any constitutional imperative that would require it to do so, this Court should not permit a mistake-of-fact defense when such a ruling would have the practical effect of diminishing protections for victims and their families and deterring reporting of sex crimes. IV. Appellant Has Failed to Show that He Acted Reasonably Assuming that this Court permitted a mistake-of-fact defense as to a statutory rape victim’s age, to show its applicability here, appellant would have had to provide at least a scintilla of evidence to support his argument that he formed a reasonable belief that the complainant was an adult over seventeen years of age. See Allen v. State, 253 S.W.3d 260, 267 (Tex.Crim.App.2008); Tex. Penal Code §§ 8.02(a) (defense exists where a mistaken, “reasonable belief’ about a matter of fact “negate[s] the kind of culpability” required for the offense), 1.07(a)(42) (“reasonable belief’ is that which “would be held by an ordinary and prudent man in the same circumstances as the actor”). The record indicates that at the time when he committed the offense, appellant was twenty-four years of age and the complainant was more than a decade his junior at thirteen years of age. Even according to his own evidence, appellant was reckless and unreasonable about determining whether the complainant was actually over seventeen years of age. According to appellant’s theory, the complainant lied about her age, telling him she was twenty-two but showing that her age was twenty on her MySpace page. She lived with her parents. Appellant wrote a love letter claiming that he knew that she was four or five years younger than he, which further indicates that he did not attempt to determine how old she really was and, in fact, knew that she was much younger. The fact that other people who had limited contact with the complainant may also have been reckless about failing to determine her correct age does not change appellant’s recklessness into reasonable conduct. See Montgomery v. State, 588 S.W.2d 950, 953 (Tex.Crim.App.1979) (“The mistake of fact defense ... is based on the mistaken belief of the accused, and it looks to the conduct of others only to the extent that any such conduct contributes to the mistaken belief.”); Lasker v. State, 573 S.W.2d 539, 542 (Tex.Crim.App.1978). Appellant had extensive contact with the complainant, so the reasonableness of his belief should be judged by a different standard than the beliefs of those who had limited contact with the complainant. Furthermore, group recklessness by a defendant’s friends and others should not amount to a license to prey upon children who are thirteen and younger under the veil of reasonableness. Appellant’s own theory, therefore, shows that he did not ever directly ascertain from the complainant her actual age and that he remained recklessly ignorant about that fact. In short, his evidence of his mistaken belief fails to show that he was reasonably mistaken about the complainant’s true age. V. Conclusion Society recognizes that young children ages thirteen and under are especially vulnerable to adults, who can easily overpower them physically and mentally. Furthermore, these young children lack the judgment to assess and avoid potentially dangerous situations. These young children, therefore, may exhibit bad judgment in deceiving others about their age, coming home late, or spending the night away from home without permission. The question is not whether young children lack judgment; they do. The question is whether the federal Constitution requires us to recognize an affirmative defense based on the defendant’s reasonable but mistaken belief that a child thirteen years old or under was an adult capable of consent. By declining to impose a mental-state requirement as to the age of the child, the Legislature has squarely placed the burden on the adult to determine that the person he is having sex with is not actually thirteen years old or younger. The severe penalties for getting it wrong are the Legislature’s way of incentivizing due diligence and ensuring that it is adults, not children, who are encumbered with this responsibility. I conclude that the elevated punishments imposed by the Texas Legislature in response to the victimization of young children strengthen rather than subvert my conclusion that a defendant’s due-process rights do not encompass the entitlement to a mistake-of-fact defense in an aggravated-sexual-assault case. With these comments, I respectfully concur. . For example, the Model Penal Code allows the defense of reasonable mistake as to age when the victim is over the age of ten, and federal law allows for a mistake-of-age defense when the minor is between the ages of twelve and sixteen. See Model Penal Code §213.6; 18 U.S.C. § 2243(c)(1). But, viewed in a different light, this also means that the Model Penal Code does not allow a mistake-of-fact defense when the victim is ten or younger, and federal law does not allow it when the victim is eleven or younger. Here, the complainant was thirteen years old. The difference between the Model Penal Code and federal law and the situation here, therefore, is not that those laws allow a mistake-of-age defense in all cases, but instead that those laws would allow the defense for complainants who are older than ten or eleven years old. The question before us then comes down to a matter of degree: Given that the mistake-of-age defense is not permitted for children ages ten and eleven and under in several other jurisdictions, is it unconstitutional if it is not permitted for children ages thirteen and under in Texas? I cannot conclude that the federal Constitution would draw a bold line here. I also note that only seventeen states permit the mistake-of-age defense, with at least twenty-three jurisdictions characterizing "statutory rape” as a strict-liability offense. See United States v. Rodriguez, 711 F.3d 541, 557 (5th Cir.2013) (citing Catherine L. Carpenter, On Statutory Rape, Strict Liability, and the Public Welfare Offense Model, 53 Am. U.L.Rev. 313, 385-91 (2003)). The majority rule in the United States, therefore, is to not permit a defense on mistake as to the age of a child-victim. Id. . Under Texas law, a defendant commits aggravated sexual assault of a child, a first-degree felony, if he has sexual relations with a child thirteen years of age or under, and a lesser offense of sexual assault of a child, a second-degree felony, if he has sexual relations with a child fourteen to sixteen years of age. See Tex. Penal Code §§ 22.011(a); 22.021(a). By punishing offenders who victimize children thirteen years of age and younger at the highest punishment range available, regardless of the reasonableness of the actor's belief about the child’s age, the Texas Legislature has determined that these younger children deserve society’s greatest protection. See id. Under Texas law, children ages thirteen and under may never consent to sexual relations under any circumstances. See id. In contrast, teenaged children át ages fourteen through sixteen may consent to sexual relations with a spouse or a person around their same age. See id. § 22.011(e). The Texas Legislature, therefore, has drawn an absolute line of no consent under any circumstances at thirteen years of age or younger. See id. § 22.021(a). The Legislature has "not acted unreasonably or arbitrarily” in determining that children thirteen years of age and younger are deserving of special protection. See Rodriguez v. State, 93 S.W.3d 60, 69 (Tex.Crim.App.2002) (examining for unreasonable and arbitrary acts of Legislature to determine whether statute is unconstitutional). . See Black v. State, 26 S.W.3d 895, 898 (Tex.Crim.App.2000) (per curiam) ("No scienter with respect to the lack of consent in sexual assault and aggravated sexual assault is required when the victim is a child. Nor is mistake of fact with respect to the victim’s age a defense to either form of sexual assault.”) (citations omitted); see also Vasquez v. State, 622 S.W.2d 864, 866 (Tex.Crim.App.1981) (stating that, under well-established Texas law, "it had consistently been held that a female under the age fixed by statute was deemed in law to be incapable of consenting to an act of sexual intercourse, and one who had committed the act on her was guilty of rape, notwithstanding the fact that he had obtained her actual consent, or was ignorant of her age, or even though she invited or persuaded him to have intercourse with her”). . I note here that part of the rationale offered by the dissenters in support of permitting a mistake-of-fact defense under these circumstances is that the Legislature has enacted sex-offender-registration laws that apply to a defendant "even if the finder of fact believed that the defendant was entirely blameless with respect to whether he was dealing with a child." But the view that an individual can be "blameless” when he has sexual intercourse with a child under fourteen years of age runs contrary to the legislative determination that the burden of ensuring that a sexual partner is of legal age falls squarely on the defendant, who must verify that the person with whom he is intimate is not a child. In failing to meet his burden under Texas law to ascertain that his intimate partner is legally capable of consent, a defendant who has sexual intercourse with a child under the age of fourteen can hardly be called "blameless.”
KELLER, P.J., filed a dissenting opinion in which PRICE and JOHNSON, JJ., joined. I would hold that, after Lawrence v. Texas, in a limited number of child sex cases, due process requires the submission of an affirmative defense of reasonable mistake of age. I would also hold that such a defense is not automatically precluded by the fact that the complainant is under the age of fourteen. I. SUBSTANTIVE DUE PROCESS The Fourteenth Amendment provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” The Supreme Court has interpreted the Due Process Clause as having both substantive and procedural components. The substantive component protects the individual against government action that either lacks a rational basis or unduly infringes on a fundamental right or liberty interest. A statute that infringes upon a fundamental right or liberty interest violates the substantive component of the Due Process Clause “unless the infringement is narrowly tailored to serve a compelling state interest.” A substantive-due-process analysis that is based upon the infringement of a fundamental right or liberty interest must provide a “careful description of the asserted fundamental liberty interest.” A fundamental right or liberty interest is one that is “deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [it] were sacrificed.” In addition to specific freedoms protected by the Bill of Rights, the Supreme Court has recognized a number of fundamental rights, such as the right to marry, the right to have children, the right to marital privacy, and the right to bodily integrity. II. FUNDAMENTAL RIGHT A. Overview As will be seen in the following discussion, one of the two fundamental rights implicated in the present case is the right to be free from harsh punishment when mental culpability is entirely absent. In this context, mental culpability is entirely absent if the defendant (1) harbors no culpable mental state with respect to an element of the offense that is crucial to imposing criminal liability and (2) harbors no culpable mental state with respect to the existence of facts that place him on notice of the probability of strict regulation requiring him to ascertain whether he is engaging in conduct that violates the law. For purposes of this discussion, culpable mental states include not only the ones listed in the Penal Code — intent, knowledge, recklessness, and criminal negligence — but other culpable mental states such as wilfulness and ordinary negligence. B. Fundamental Nature of Mental Culpability The idea that some mental culpability must attach to conduct before it can be a crime “is no provincial or transient notion.” “It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.” The Supreme Court has explained that a relation “between some mental element and punishment ... is almost as instinctive as the child’s familiar exculpatory” statement “But I didn’t mean to.” The general requirement of some mens rea for a crime is firmly embedded in the common law and is “the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.” There are exceptions to the general requirement of mens rea: offenses that are sometimes called “strict-liability crimes.” But, as the following discussion will show, two characteristics generally associated with such offenses mitigate against their harshness: (1) they typically have light penalties, and (2) despite their name, they typically do not entirely dispense with mental culpability- C. Doctrine of Strict Liability Historically, strict-liability offenses have most often been what courts have called “regulatory” or “public welfare” offenses. Typically, these offenses carried “only light penalties” such as “fines or short jail sentences,” and conviction of the offense did “no grave damage to an offender’s reputation.” In a system like ours that generally requires a “vicious will” to establish a crime, “imposing severe punishments for offenses that require no mens rea would seem incongruous.” The Supreme Court has recognized that the “public welfare offense” label “hardly seems apt” when the crime is a felony. Whether or not -it is a public-welfare offense, it is generally true that a so-called strict-liability offense does not entirely dispense with mental culpability. From a Texas perspective, the Supreme Court’s cases generate some confusion because they often define mens rea narrowly to encompass only an actual awareness of the circumstances that make the act criminal The Supreme Court has referred to mens rea as a “vicious will,” and that Court has suggested that crimes of negligence or omission of duty are instances in which a “vicious will” are absent. In Texas, however, “criminal negligence” is a statutorily recognized culpable mental state, and we commonly refer to negligence as a form of mens rea. Regardless of the status of negligence as a mens rea, the Supreme Court has indicated that strict-liability offenses generally impose liability only if the defendant is aware of certain facts that place him on notice of “the probability of strict regulation” requiring him to “ascertain at his peril whether his conduct comes within the inhibition” of the law. If, for example, a person is in the business of selling drugs or food, or he deals in hazardous materials such as explosives or sulfuric acid, then he is on notice that the burden may be on him to ascertain that he is complying with all government laws relating to the matter. Essentially, the same reasoning holds in the area of compound crimes and transferred intent, where a person who commits a predicate crime is held responsible for an unintended consequence of that crime, as in the case of felony murder: It is unusual to impose criminal punishment for the consequences of purely accidental conduct. But it is not unusual to punish individuals for the unintended consequences of. their unlawful acts.... The felony-murder rule is a familiar example: If a defendant commits an unintended homicide while committing another felony, the defendant can be convicted of murder. Commission of the predicate crime is the dangerous activity that places the defendant on notice that he better be careful or he may be liable for another crime. The Supreme Court has acknowledged that “the term ‘strict liability’ is really a misnomer” in the context of dangerous or highly regulated activities. “True strict liability might suggest that the defendant need not know that he was dealing with a dangerous item,” but the Supreme Court has “avoided construing criminal statutes to impose [this] rigorous form of strict liability.” D. Due-Process Implications Most of the time, the Supreme Court’s discussion of strict-liability offenses occurs in the context of statutory construction because the Court will often read a culpable mental state into a federal statute even if the statutory language is silent. But there is one case from the Supreme Court that has found a due-process violation, and there are other cases from the Court that discuss in dicta the due-process implications of imposing a “rigorous” form of strict liability. In Lambert v. California, the Supreme Court addressed an ordinance that required a person who was previously convicted of a felony to register with the City of Los Angeles if the person stayed in the city for more than five days or came into the city on five or more occasions during a thirty-day period. The Court held that the registration statute violated due process when it was applied to a person who had no actual knowledge of his duty to register and where no showing was made “of the probability of such knowledge.” “Engrained in our concept of due process,” the Court held, “is the requirement of notice.” Although notice is an important component of procedural due process in defending against a criminal charge, it is also a consideration in determining whether certain behavior can even be considered a criminal law violation. In Powell v. Texas, the Supreme Court recognized its holding in Lambert but nevertheless stated that the “Court has never articulated a general constitutional doctrine of mens rea.” It is true that the Court focused on thé fact that the crime in Lambert was one of “omission.” But the Court also noted that there was no suggestion that the defendant in the case before it — who was arguing that he lacked mens rea due to his alcoholism — “was not fully aware of the prohibited nature of his conduct and of the consequences of taking his first drink.” While Lambert dealt with what the Court called a defendant’s “wholly passive” behavior, the Supreme Court has in later eases suggested that due process may apply to more active behavior if the activity engaged in is not the sort that would place the defendant on notice of the probability of regulation. In United States v. Int’l Minerals & Chem. Corp., the Supreme Court explained that, while the dangerous nature of drugs, hand grenades, and sulfuric acid are sufficient to place a person on notice of regulation, more innocuous products such as “[p]encils, dental floss, [and] paper clips ... may be the type of products which might raise substantial due process questions if Congress did not require ... mens rea as to each ingredient of the offense.” In that case, the Court also observed that a person who believed in good faith that he was shipping water instead of sulfuric acid was not covered by terms of the statute that required the defendant to know what substance he was transporting. In United States v. Freed, the Court contrasted the case before it with Lambert, saying “an agreement to acquire hand grenades is hardly an agreement innocent in itself’ because hand grenades are highly dangerous weapons, “no less dangerous than the narcotics involved in United States v. Balint.” E. Illustrative Texas Cases Two of our own recent cases, though not dealing with constitutional issues, illustrate how a mental element of sorts comes into play with respect to what is denominated a strict-liability offense. In Farmer v. State, a defendant accused of driving while intoxicated (-DWI) contended that he was entitled to a jury instruction on “vol-untariness” because he did not intentionally consume an intoxicating substance. The defendant in that case took prescription medications on a daily basis — taking Ultram, and sometimes Soma, in the morning and taking Ambien at night. However, on the day of the incident, the defendant took Ambien in the morning and was later involved in an auto accident. The defendant contended that he was entitled to a defensive instruction on voluntariness because there was evidence that he took the Ambien by mistake, thinking it was Soma. We explained that DWI is a strict-liability crime, “meaning that it does not require a specific mental state (e.g., intentionally, knowingly, or recklessly intending to operate a motor vehicle while intoxicated), only a person on a public roadway voluntarily operating a motor' vehicle while intoxicated.” Rejecting the defendant’s claim, we found in essence that the defendant was at least negligent with respect to whether he was taking an intoxicating substance. We contrasted the defendant’s case with Torres v. State, where we had held that the defendant was entitled to an instruction on involuntary intoxication because there was evidence that someone had, without her knowledge, slipped an intoxi-eating substance into her beverage. Because the defendant in Farmer had some culpability for consuming an intoxicating substance, he was in a similar position to someone who- consumed “that first drink” and, therefore, was responsible for ascertaining whether he was or would be intoxicated when he drove. We agreed in Farmer that a defendant such as the one in Torres, who was not culpable with respect to consuming an intoxicating substance, should be entitled to a defensive instruction. Regardless of whether our statutes require such a result, I think that due process does. Inflicting harsh punishment for the offense of DWI upon a person who lacks any culpability for consuming an intoxicating substance and also lacks any culpability for driving while intoxicated violates fundamental notions of justice. The second case that I find instructive is Cells v. State, where the defendant was charged with falsely holding himself out as a lawyer. The defendant in that case contended that he was entitled to a culpable-mental-state instruction or a mistake-of-fact instruction on whether he believed that he was licensed to practice law. He claimed that such an instruction was raised by evidence that he believed himself to be authorized to practice law in Mexico. We rejected the defendant’s claim in part because “[ajeting as a lawyer is highly regulated conduct” and, therefore, the legislature has “placed the burden of complying with conditions imposed for the protection of the public upon those who hold themselves out as lawyers for profit, rather than placing upon the public the burden of determining whether an individual is qualified and eligible to provide legal services.” A defendant who holds himself out as a lawyer acts with at least some degree of mental culpability because he should be aware of the probability of strict regulation of the legal profession, even if he lacks a culpable mental state with respect to whether he is validly licensed. F. Summary To summarize, every person in this country has a fundamental right to be free from harsh criminal punishment when mental culpability is entirely absent. Mental culpability is entirely absent if, and only if, the person lacks a culpable mental state with respect to (1) an element of the offense that is crucial to imposing criminal liability, and (2) the existence of facts that would place him on notice of the probability of strict regulation that would impose a duty to ascertain whether his conduct violates the law. The term “culpable mental state” in this context is broadly defined, including more than simply those that are statutorily recognized and embracing even the concept of ordinary negligence. Many so-called strict-liability offenses contain at least an implied culpable mental state with respect to facts that give notice of the probability of strict regulation. When that is the case, the strict-liability offense in question does not involve a fundamental right because it does not impose criminal liability on a person who entirely lacks any mental culpability. But some offenses do not require any mental culpability at all. This latter type of offense imposes a “rigorous” form of strict liability and implicates a fundamental right if the offense carries harsh penalties and the offense is applied to a person who entirely lacks any mental culpability. When a fundamental right is implicated, application of a rigorous strict-liability offense violates due process unless it is narrowly tailored to serve a compelling state interest. III. CHILD SEX OFFENSES A. Status Throughout the Nation I 'begin my discussion of child sex offenses by acknowledging that the Supreme Court has recognized sex offenses as an exception to the deeply rooted notion that criminal liability must depend upon a “vicious will.” This exception may be less than it appears when one considers that the term “vicious will” was not necessarily understood by the Supreme Court to encompass all types of mental culpability — it meant an “evil-meaning mind,” not necessarily a negligent mind. Nevertheless, “[pjrior to 1964, it was the universally accepted rule in the United States that a defendant’s mistaken belief as to the age of a victim was not a defense to a charge of statutory rape.” California was the first to break with such precedent, holding that a good-faith and reasonable belief that a victim was over the age of consent was a defense to statutory rape. The Court of Appeals for the Armed Forces has noted that one state imposes a culpable mental state with respect to age as an element of the crime (Ohio) while twenty other states currently allow for some form of mistake-of-age defense for sex offenses involving children —although only four (Alaska, Indiana, Kentucky, and Washington) allow such a