Eugene Volokh has a very interesting post on strict liability crimes. Sex crimes figure prominently in the discussion because of the typical construction of statutory rape statutes. From the post:
What are the possible distinctions here? One is that there's no right, under Lawrence, to have sex with minors — but for reasons I mention, that doesn't distinguish the free speech cases, which likewise bar strict liability even for constitutionally unprotected behavior, because such liability may deter protected behavior.
A second distinction — that preventing statutory rape is just very important — also fails. Preventing child pornography involving minors is also very important, but the Court has held that the government must fight that by punishing knowing, reckless, or possibly negligent use of minors; the government may not serve even this very important interest by punishing people who reasonably believed that the person was 18.
Another is a factual distinction: In practice, one might say, very few people will be deterred from having sex with 18-year-old girls because they fear that she might be 17. But why? One might argue that it's because sex is such a powerful force; but so is the desire to make money from selling obscenity or child pornography, for those who are in that business. One might also point out that because statutory rape laws are notoriously underenforced, few people will be much deterred by them; and maybe that's enough. But that might be a hard theory for a court to accept — a strict liability statutory rape law is constitutional only because everyone knows that.
Another is that figuring out the age of one's sexual partner is much easier than figuring out the age of someone in a movie one is distributing or watching. But it's actually not always that easy to figure out a sexual partner's age if the sexual partner is lying about it, for instance by showing a fake driver's license. And in any case the ease of determining the facts in some cases counsels in favor of negligence liability — liability when a person knew or reasonably should have known the sexual partner was underage — rather than strict liability that would apply even if the person acted perfectly reasonably.
I think Volokh undersells the last distinction. It may be difficult to determine a sex partner's age at times, but it certainly is easier than accurately assessing the age of every person in a pornographic video. You get a much better look at a typical sex partner. The relationship usually affords a greater time to view the person. Communication is also possible to secure the information. You cannot ask the person on the video how old he or she is. Overall, there is a strong comparative advantage of assessing age for a person in a typical sexual relationship.
The whole post is very interesting and provides a very good discussion of the oddities of strict liability crimes. I suggest checking the whole thing out.
I made a comment over at VC when Eugene first posted. Basically, I think he misunderstands the rationale for strict liability. It isn't based upon what the subject knows about the specific individual but what the subject knows about the activity in general. Having sex with young men or women is by social definition an extra-hazardous activity. It's playing with dynamite. It's not the social equivalent of riding a bike down the street. If you chose to play that game you need to accept the consequences and understand that you are engaging in an extra-hazardous activity. Again, it's not what you know or should have known about the specific individual but what you knew or should have known about the activity in general. So even if the person who is over 18 acted quite reasonably, they can be held to a standard of strict liability due to the extra-hazardous nature of the activity they were engaged in.
Posted by: Daniel | August 14, 2008 at 10:58 PM
I wanted to address a factual assertion in EV post that I believe to be wrong.
"A second distinction — that preventing statutory rape is just very important — also fails. Preventing child pornography involving minors is also very important, but the Court has held that the government *must* fight that by punishing knowing, reckless, or possibly negligent use of minors; the government may not serve even this very important interest by punishing people who reasonably believed that the person was 18."
I am aware of no case that has ruled this way, do you Corey? I say this because I don't know of any law that congress has ever passed that required the courts to use strict liability in such situations. It may be that as a matter of statutory construction the SC held that strict liability was not what congress intended. But determining whether an activity is socially extra-hazardous and thus subject to strict liability is precisely the policy decision that are best left to congress or the state legislatures.
Posted by: Daniel | August 14, 2008 at 11:54 PM