             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                        NO. PD-1250-12



                       MARK ALEXANDER FLEMING, Appellant

                                                 v.

                                   THE STATE OF TEXAS

           ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE SECOND COURT OF APPEALS
                            DENTON COUNTY

                K ELLER, P.J., filed a dissenting opinion in which P RICE and J OHNSON, JJ.,
joined.


       I would hold that, after Lawrence v. Texas,1 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,


       1
           539 U.S. 558 (2003).
                                                                          FLEMING DISSENT — 2

or property, without due process of law.”2 The Supreme Court has interpreted the Due Process

Clause as having both substantive and procedural components.3 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.4 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.”5 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.”6 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.”7 In addition to

specific freedoms protected by the Bill of Rights,8 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.9

                                      II. FUNDAMENTAL RIGHT


        2
            U.S. CONST ., Amend. 14, § 1, cl. 3.
        3
            Reno v. Flores, 507 U.S. 292, 301-02, 306-07 (1993).
        4
            Washington v. Glucksberg, 521 U.S. 702, 720-21, 728 (1997).
        5
            Id. at 721; Flores, 507 U.S. at 302.
        6
            Glucksberg, 521 U.S. at 721 (internal quotation marks omitted).
        7
          Id. at 720-21 (citations and internal quotation marks omitted, bracketed material substituted
for original).
        8
            The first ten amendments to the United States Constitution.
        9
            Glucksberg, 521 U.S. at 720 (citing cases).
                                                                         FLEMING DISSENT — 3

                                            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

negligence10—but other culpable mental states such as wilfulness and ordinary negligence.11

                          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.”12 “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.”13 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




       10
             See TEX . PENAL CODE § 6.03.
       11
        See State v. Hazelwood, 946 P.2d 875 (Alaska 1997) (discussing ordinary negligence as
a minimum mental-culpability standard sometimes required by due process).
        12
             Morissette v. United States, 342 U.S. 246, 250 (1952).
        13
             Id.
                                                                           FLEMING DISSENT — 4

“But I didn’t mean to.”14 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.”15 There are exceptions to the general requirement of mens rea: offenses that

are sometimes called “strict-liability crimes.”16 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.17 Typically, these offenses carried “only light penalties”

such as “fines or short jail sentences,”18 and conviction of the offense did “no grave damage to an

offender’s reputation.”19 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.”20 The Supreme Court has recognized that the “public welfare offense” label “hardly




        14
             Id. at 250-51.
       15
         Staples v. United States, 511 U.S. 600, 605 (1994) (quoting United States v. Gypsum Co.,
438 U.S. 422, 436 (1978)); see also Smith v. California, 361 U.S. 147, 150 (1959).
        16
             Staples, 511 U.S. at 607 n.3.
        17
             Id. at 616-17; United States v. Freed, 401 U.S. 601 (1971).
        18
             Staples, 511 U.S. at 616.
       19
             Id. at 617-18; Morissette, 342 U.S. at 256.
        20
             Staples, 511 U.S. at 616-17.
                                                                             FLEMING DISSENT — 5

seems apt” when the crime is a felony.21

        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.22 The Supreme Court has

referred to mens rea as a “vicious will,”23 and that Court has suggested that crimes of negligence or

omission of duty are instances in which a “vicious will” are absent.24 In Texas, however, “criminal

negligence” is a statutorily recognized culpable mental state,25 and we commonly refer to negligence

as a form of mens rea.26

        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


        21
             Id. at 618.
        22
         Id. at 607 n.3 (“Under such statutes we have not required that the defendant know the facts
that make his conduct fit the definition of the offense. Generally speaking, such knowledge is
necessary to establish mens rea.”).
        23
             Id. at 616-17; Freed, 401 U.S. at 607; Morissette, 342 U.S. at 251.
        24
          Staples, 511 U.S. at 606-07 (discussing legislation that “dispenses with the conventional
requirement for criminal conduct—awareness of some wrongdoing”); Morissette, 342 U.S. at 251
n.8 (“Most extensive inroads upon the requirement of intention, however, are offenses of negligence,
such as involuntary manslaughter or criminal negligence and the whole range of crimes arising from
omission of duty.”); United States v. Balint, 258 U.S. 250, 252 (1922) (ignorance or good faith not
a defense to certain regulatory crimes).
        25
             TEX . PENAL CODE § 6.03(d).
        26
          See, e.g., Montgomery v. State, 369 S.W.3d 188, 191 (Tex. Crim. App. 2012); Watson v.
State, 369 S.W.3d 865, 871 (Tex. Crim. App. 2012); Williams v. State, 235 S.W.3d 742, 751-53
(Tex. Crim. App. 2007). See also Hazelwood, 946 P.2d at 878-79 (characterizing ordinary
negligence as a mens rea).
                                                                        FLEMING DISSENT — 6

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.27 If, for example, a person is in the

business of selling drugs or food,28 or he deals in hazardous materials such as explosives or sulfuric

acid,29 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.30

Commission of the predicate crime is the dangerous activity that places the defendant on notice that


       27
           Staples, 511 U.S. at 607. See also United States v. Int’l Minerals & Chem. Corp., 402
U.S. 558, 564-65 (1971) (with respect to transporting sulfuric acid, “[T]he probability of regulation
is so great that anyone who is aware that he is in possession . . . must be presumed to be aware of
the regulation.”); Freed, 401 U.S. at 609 (“This is a regulatory measure in the interest of the public
safety, which may well be premised on the theory that one would hardly be surprised to learn that
the possession of hand grenades is not an innocent act.”); United States v. Dotterweich, 320 U.S.
277, 284-85 (1943) (regarding prosecution of corporate officer whose company shipped adulterated
food, “Balancing relative hardships, Congress has preferred to place it upon those who have at least
the opportunity of informing themselves of the existence of conditions imposed for the protection
of consumers before sharing in illicit commerce, rather than to throw the hazard on the innocent
public who are wholly helpless.”); Balint, 258 U.S. at 252-53 (regarding sale of drugs, “[W]here one
deals with others and his mere negligence may be dangerous to them . . . the policy of the law may,
in order to stimulate proper care, require punishment of the negligent person, though he be ignorant
of the noxious character of what he sells.”).
       28
            See Balint, 258 U.S. at 252-53 (drugs); Dotterweich, 320 U.S. at, 284-85 (food).
       29
          See Freed, 401 U.S. at 608-09 (hand grenades); Int’l Minerals & Chem. Corp., 402 U.S.
at 564-65 (sulfuric acid).
       30
            Dean v. United States, 556 U.S. 568, 575-76 (2009).
                                                                         FLEMING DISSENT — 7

he better be careful or he may be liable for another crime.31 The Supreme Court has acknowledged

that “the term ‘strict liability’ is really a misnomer” in the context of dangerous or highly regulated

activities.32 “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.”33

                                     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.34 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.35 The Court held that the registration statute violated due process when it was


        31
             See Lomax v. State, 233 S.W.3d 302, 305 & n.7 (Tex. Crim. App. 2007).
        32
             Staples, 511 U.S. at 607 n.3.
        33
         Id.; see also Hazelwood, 946 P.2d at 884 n.16 (“In other words, even strict liability crimes
do not dispense with the requirement of criminal intent. Rather, because they rest on a fair
presumption of unreasonableness, they do not require that negligence be shown separately.”).
        34
           See Staples, 511 U.S. at 605-06 (“[W]e have noted that the common-law rule requiring
mens rea has been followed in regard to statutory crimes even where the statutory definition did not
in terms include it.”).
        35
             355 U.S. 225, 226 (1957).
                                                                          FLEMING DISSENT — 8

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.”36 “Engrained in our concept of due process,” the Court

held, “is the requirement of notice.”37 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.38

        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.”39 It is true

that the Court focused on the fact that the crime in Lambert was one of “omission.”40 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.”41

        While Lambert dealt with what the Court called a defendant’s “wholly passive” behavior,42

the Supreme Court has in later cases 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



        36
           Id. at 227-30. See also Smith, 361 U.S. at 150 (citing Lambert and observing that, while
the States had the power to create strict-liability offenses, “there is precedent in this Court that this
power is not without limitations”).
        37
             Lambert, 355 U.S. at 228.
        38
             Id.
        39
             392 U.S. 514, 535 & n.27 (1968).
        40
             Id. at 535 n.27.
        41
             Id.
        42
             Lambert, 355 U.S. at 228. See also Powell, 392 U.S. at 535 n.27.
                                                                          FLEMING DISSENT — 9

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.”43 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.44 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.”45

                                     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 “voluntariness” because he did not intentionally consume an

intoxicating substance.46 The defendant in that case took prescription medications on a daily




        43
             402 U.S. at 564-65.
        44
             Id. at 563-64.
        45
             Freed, 401 U.S. at 609 & n.14.
        46
             411 S.W.3d 901, 902 (Tex. Crim. App. 2013).
                                                                       FLEMING DISSENT — 10

basis—taking Ultram, and sometimes Soma, in the morning and taking Ambien at night.47 However,

on the day of the incident, the defendant took Ambien in the morning and was later involved in an

auto accident.48 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.49

       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.”50 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.51 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




       47
            Id.
       48
            Id.
       49
            Id. at 902-03.
       50
            Id. at 905.
       51
          Id. at 907-08 (“Stated another way, this is not a case of unknowingly or unwillingly taking
pharmaceutical medication (similar to Torres); this is a case of knowingly taking pharmaceutical
medication but mistakenly taking the wrong one. While we may be sympathetic to a ‘mistake,’
Appellant was involved in two accidents because of his ‘mistake.’ Even if Appellant took the
medication in error, that error was made because Appellant did not take the time to verify the
medication he was taking, although he knew that he was prescribed medications that could have an
intoxicating effect.”).
                                                                         FLEMING DISSENT — 11

knowledge, slipped an intoxicating substance into her beverage.52 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.53

         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.54

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 Celis v. State, where the defendant was charged with

falsely holding himself out as a lawyer.55 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.56 He claimed that such an instruction was raised by evidence that

he believed himself to be authorized to practice law in Mexico.57 We rejected the defendant’s claim




         52
              Id. at 907-08 & n.9; Torres v. State, 585 S.W.2d 746, 748-49 (Tex. Crim. App. [Panel Op.]
1979).
         53
              See Lomax, 233 S.W.3d at 305 n.7. See also Powell, 392 U.S. at 535 n.27.
         54
              Farmer, 411 S.W.3d at 907 n.9.
         55
              416 S.W.3d 419, 421 (Tex. Crim. App. 2013).
         56
              Id. at 422.
         57
              Id. at 421.
                                                                       FLEMING DISSENT — 12
in part because “[a]cting 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.”58 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.59

                                            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



       58
            Id. at 425-27.
       59
           The statute does not explicitly assign a culpable mental state to the act of holding oneself
out to be a lawyer, see TEX . PENAL CODE § 38.122(a), but it is hard to imagine how someone could
hold himself out to be a lawyer without knowing that he is doing so, much less without at least a
culpable mental state of negligence with respect to that conduct.
                                                                         FLEMING DISSENT — 13
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.”60 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.61

        Nevertheless, “[p]rior 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.”62 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.63 The




        60
             Morissette, 342 U.S. 246, 251 & n.8.
        61
             Id. See also this opinion, ante.
        62
           Colin Campbell, Mistake or lack of information as to the victim’s age as defense to
statutory rape, 46 A.L.R.5th 499, summary (1997, 2013).
        63
             Id.; People v. Hernandez, 61 Cal. 2d 529, 393 P.2d 673 (1964).
                                                                       FLEMING DISSENT — 14
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 children64—although only four (Alaska,

Indiana, Kentucky, and Washington) allow such a defense regardless of the child’s actual age.65 Just

four states—Alaska, California, New Mexico, and Utah—have ever recognized a mistake-of-age

defense without specific statutory authorization.66 Of those four states, California and New Mexico

remain the only states operating under a judicially created mistake-of-age defense.67 Alaska has

codified its defense68 while Utah has statutorily disallowed such a defense.69 Utah’s Supreme Court

subsequently upheld as constitutional the statute disallowing a mistake-of-age defense.70 Alaska is

the only jurisdiction that has suggested that a mistake-of-age defense is constitutionally required,71

and the Supreme Court of Alaska later clarified that its due-process holding was based upon its state



       64
            United States v. Wilson, 66 M.J. 39, 43-44 & n.8 (C.A.A.F. 2008).
       65
         See id. (citing statutes from Alaska, Indiana, and Kentucky). The Court of Appeals for
the Armed Forces stated that only three states have done so, but my research indicates that a fourth
state—Washington— allows a defense regardless of the child’s actual age. WASH . REV . CODE ANN .
§ 9A.44.030(2), (3).
       66
         Wilson, 66 M.J. at 43 (citing Hernandez; Perez v. State, 111 N.M. 160, 803 P.2d 249
(N.M. 1990); State v. Elton, 680 P.2d 727 (Utah 1984); State v. Guest, 583 P.2d 836 (Alaska 1978)).
       67
            Id. The Court of Appeals for the Armed Forces stated that California is the only remaining
state, id., but my research has failed to uncover a statutory source of authority for New Mexico’s
defense beyond the New Mexico Supreme Court’s holding in Perez.
       68
            Wilson, 66 M.J. at 43-44 & n.8.
       69
            Id. at 43-44 & n.9. See also State v. Jimenez, 284 P.3d 640, 643 n.4 (Utah 2012).
       70
            State v. Martinez, 52 P.3d 1276, 1280-81 (Utah 2002).
       71
            See Guest, 583 P.2d at 838-39.
                                                                       FLEMING DISSENT — 15
constitution.72 Meanwhile, we have long construed various statutes proscribing child sex offenses

as not allowing for a mistake-of-age defense.73

       Deciding that the submission of a mistake-of-age defense is sometimes required by the Due

Process Clause of the United States Constitution would be breaking new ground, but doing so would

be necessary if logic and precedent seem to require it and if such a holding were based, at least in

part, upon a relatively new development in the law. As I shall further explain, logic and precedent

do seem to require such a holding, and there is at least one relatively new, relevant development in

the law: Lawrence v. Texas.

                                       B. Harsh Punishment

       In this country, people have a fundamental right not to be punished harshly when mental

culpability is entirely absent. The first question to address, then, is whether the Texas legislative

scheme imposes harsh punishments for the commission of child sex offenses. I also consider

whether this is a new development.

       Historically, Texas law included rape of a child within the offense of rape, which carried

heavy penalties. As early as 1879, the offense of rape, including rape of a child with or without

consent, carried a punishment range of “death or . . . confinement in the penitentiary for life, or for

any term of years not less than five.”74 The modern Penal Code has spread out the proscribed



       72
          State v. Fremgen, 914 P.2d 1244, 1245-46 (Alaska 1996). See also Martinez, 52 P.3d at
1281 n.8 (referring to Alaska’s holding as based on its state constitution); Owens v. State, 352 Md.
663, 675 n.6, 724 A.2d 43, 49 n.6 (1999) (same).
       73
         See Black v. State, 26 S.W.3d 895, 898-99 (Tex. Crim. App. 2000); Zachary v. State, 57
Tex. Crim. 179, 182-83, 122 S.W. 263, 265-66 (1909).
       74
            TEX . PENAL CODE arts. 528, 534 (1879).
                                                                          FLEMING DISSENT — 16
conduct into several different provisions with punishments that range from two years to life,

depending on the age of the victim and the seriousness of the conduct.75

        One relatively new development that has made convictions for sex offenses more

burdensome to offenders is the registration system.76 That system, which often requires registration

for life,77 damages an offender’s reputation by giving notice to the public and law-enforcement

agencies of the defendant’s sex-offender status. Further, if a jury were inclined to be lenient with

respect to punishment because it believed that the defendant made a reasonable mistake about the

child’s age, it could not do anything about the burdens imposed by the registration system. Even

without the registration system, child sex offenses are and have always been serious crimes in Texas.

They are a far cry from mere public-welfare offenses that carry only light penalties.78 Thus, for the

purpose of determining whether a fundamental right is involved, Texas does indeed impose harsh

punishments for child sex offenses. And though harsh punishment itself is not new, the burden of

registration is relatively new.79

        75
            See TEX . PENAL CODE §§ 21.02 (25 to 99 years or life), 21.11(a)(1), (d) (second-degree
felony), 22.011(a)(2), (f) (first- or second-degree felony), 22.021 (a)(1), (2)(A), (B), (e), (f) (first-
degree felony, minimum 25 year sentence under certain circumstances); 43.25(b), (c) (second-degree
felony, first-degree felony if child under age 14). See also id. §§ 12.32 (5 to 99 years or life for first-
degree felony), 12.33 (2 to 20 years for second-degree felony).
        76
             See TEX . CODE CRIM . PROC., Ch. 62, generally.
        77
             See id. art. 62.101.
        78
           See Staples, 511 U.S. at 618 (“public welfare” label not apt for offense that is a felony).
See also Guest, 583 P.2d at 838 (“Statutory rape may not appropriately be categorized as a public
welfare offense. It is a serious felony.”).
        79
          As I have explained above, the registration requirement is a burden the finder of fact can
do nothing about, and that is true even if the finder of fact believed that the defendant was entirely
blameless with respect to whether he was dealing with a child. Responding to my comments
regarding sex offender registration, Judge Alcala’s concurring opinion takes issue with the idea that
                                                                       FLEMING DISSENT — 17
                                       C. Mental Culpability

                                  1. Rationales for Strict Liability

       The next question to address is whether child sex offenses impose a rigorous form of strict

liability—liability without any mental culpability whatsoever. I also consider whether this is a new

development. A number of reasons for imposing strict liability for child sex offenses have been

articulated, but they generally fall within two overarching types of rationales: (1) that the defendant

in such a situation knows or should know that his conduct is, in some manner, wrongful or risky, and

(2) that children need to be protected.80 The first type of rationale relates to whether the defendant

possesses some sort of mental culpability, and thus, to whether a fundamental right is implicated.

If he knows or should know that his conduct is wrongful or risky, then he may be said to possess

some mental culpability, under the broad constitutional definition, even if he does not possess a

specific culpable mental state regarding the age of the child.                 The second type of




a defendant who has sexual relations with a child under fourteen could ever be blameless because,
in her view, that idea is contrary to what the legislature has enacted. Elsewhere, the concurring
opinion contends that the legislature has not acted unreasonably or arbitrarily in this regard. As has
been discussed above, and will be further discussed below, the legislature is not always the final
word on what constitutes blameworthy behavior. The legislature does not have carte blanche to
impose criminal liability on those who are factually blameless. And as will be seen below, the
concurring opinion uses the wrong standard when it asks whether the legislature has “acted
unreasonably or arbitrarily.” That is the standard for a “rational basis” review, which is inapplicable
if the law infringes upon a fundamental right. In any event, I do not contend that the severity of
punishment is sufficient, by itself, to require the imposition of an affirmative defense of mistake of
age. There is far more to my substantive-due-process argument, which I expound upon further
below.
       80
           See Collins v. State, 691 So. 2d 918, 923 (Miss.1997) (“Historically, there have been two
basic rationales for statutory rape laws. The first rationale is the need for strict accountability to
protect young girls. The second rationale is the premise that the defendant’s intent to commit
statutory rape can be derived from his intent to commit the morally or legally wrongful act of
fornication.”).
                                                                        FLEMING DISSENT — 18
rationale—protecting children—does not speak to whether the defendant possesses any mental

culpability and, therefore, is not relevant to whether a fundamental right is implicated. Rather, the

protecting-children rationales are relevant to the next step in the substantive-due-process analysis:

whether legislation is narrowly tailored to serve a compelling state interest. Consequently, I focus

first on the wrongful-conduct rationales to determine whether a fundamental right is even implicated.

        Wrongful-conduct rationales take various forms, but most of them share a similar focus, and,

as a group, I will call them the “peril” rationales. These are the rationales that are generally used to

justify strict-liability offenses, and they say that something about the defendant’s conduct places him

on notice that he acts at his peril and must take care to avoid violating the law.81 Some courts have

said that a person who engages in sexual relations with an individual who is not his spouse is

engaging in conduct that constitutes the crime of fornication, and because the defendant knows or

should know that such conduct is a crime, he assumes the risk that he may be committing a crime




        81
             See also this opinion, part IIC.
                                                                        FLEMING DISSENT — 19
involving someone under the age of consent.82 In an early case, we also articulated this rationale.83

       Other courts, including our Court, have taken the position that fornication at least violates

societal morals, causing the actor to assume the risk that his consort is underage:

       While, within principles explained in another connection, no one is ever punishable
       for any act in violation of law whereto, without his fault or carelessness, he was
       impelled by an innocent mistake of facts, this rule does not free a man from guilt of
       his offense by reason of him believing, on whatever evidence, that the girl is above
       the statutory age. His intent to violate the laws of morality and the good order of
       society, though with the consent of the girl, and though in a case where he supposes
       he shall escape punishment, satisfies the demands of the law, and he must take the
       consequences.84


       82
           Holton v. State, 28 Fla. 303, 308, 9 So. 716, 717 (1891) (“It is unlawful per se to carry on
such practices with any female not the lawful wife of the malfeasor, and we think that the offense
here, so far as intent is involved, comes within the rule, that a man shall be held responsible for all
the consequences of his wrongdoing. By having illicit intercourse with any female he violates the
law; should it turn out that the partner in his crime is within the prohibited age, he will not be
allowed to excuse himself by asserting ignorance as to her age.”); Commonwealth v. Murphy, 165
Mass. 66, 70, 42 N.E. 504, 505 (1895) (“The defendants in the present cases knew they were
violating the law. Their intended crime was fornication at the least. It is a familiar rule that, if one
intentionally commits a crime, he is responsible criminally for the consequences of his act if the
offence proves to be different from that which he intended.”); Collins, 691 So. 2d at 923 (intent to
commit statutory rape derived from the legally or morally wrongful act of fornication). See also
Guest, 583 P.2d at 839 (referring to, but rejecting, position of other jurisdictions that conduct can
be punished as rape because the actor at least understood that he was committing the crime of
fornication); Elton, 680 P.2d at 730 (same).
       83
           Edens v. State, 43 S.W. 89, 89 (Tex. Crim. App. 1897) (quoting McClain, Cr. Law, § 451:
“Where the offense is in having connection with a child under the age of consent, belief on the part
of the defendant that she was over the age of consent, and that, therefore, consent on her part would
prevent the act from being criminal, cannot be shown. Connection with a child under the age of
consent being criminal, one who has connection with a female which would, in any event, be
unlawful, must know at his peril whether her age is such as to make the act a rape.”).
        84
          Zachary, 57 Tex. Crim. at 183, 122 S.W. 265-66 (quoting Bishop, Statutory Crimes, §
490); Edens, 43 S.W. at 89 (same); Territory v. De los Santos, 42 Haw. 102, 106 (1957) (same);
State v. Houx, 109 Mo. 654, 661, 19 S.W. 35, 37 (1891) (quoting second sentence only, from
Wharton on Criminal Evidence, § 724). See also Collins, 691 So. 2d at 923 (citing 6 Am. Jur.2d,
Proof of Facts, § 2 (1975)); State v. Wade, 224 N.C. 760, 761, 32 S.E.2d 314, 315 (1944)
(quoting 44 Am. Jur., § 41, p. 926: “In any event, he has committed a moral wrong [sexual
                                                                       FLEMING DISSENT — 20
        Nebraska takes the position that a reasonable mistake about a victim’s age is no defense

because it is not unfair “to require one who gets perilously close to an area of proscribed conduct to

take the risk that he may cross over the line.”85 It is not clear what constitutes “getting perilously

close to proscribed conduct” with respect to the victim’s age, but the statement was derived from a

case in which the issue was whether there should be a defense based upon a reasonable mistake of

fact regarding whether the underage victim was “chaste.”86 A defendant who had sexual relations

with an underage female took his chances on whether she was chaste.87

        Citing Bowers v. Hardwick,88 Maryland’s high court has suggested an even broader form of

“peril” rationale, in line with holdings for public-welfare offenses: “that a person has no

constitutional right to engage in sexual intercourse, at least outside of marriage, and sexual conduct

is frequently subject to state regulation.”89 The Supreme Court of Massachusetts has also suggested

a relationship between the rule of strict liability for child sex offenses and the rationale for strict

liability for public-welfare offenses.90

        Aside from the “peril” rationales, there is another rationale that I will call the “empirical”



intercourse with an unmarried female], and he was bound to know, at his peril, that her age was
such that consent on her part would prevent the act from being rape.”).
       85
         State v. Campbell, 239 Neb. 14, 19, 473 N.W.2d 420, 425 (1991); State v. Navarrete, 221
Neb. 171, 175, 376 N.W.2d 8, 11 (1985).
        86
             State v. Vicars, 186 Neb. 311, 312-14, 183 N.W.2d 241, 242-43 (1971).
        87
             Id.
        88
             478 U.S. 186 (1986).
        89
             Owens, 352 Md. at 683, 724 A.2d at 53.
        90
             Murphy, 165 Mass. at 70, 42 N.E. at 505.
                                                                        FLEMING DISSENT — 21
rationale. This rationale holds that, as an empirical matter, an adult who observes and interacts with

a child knows or should know from that observation and interaction that the child is underage. The

Maryland court seems to have taken this position, arguing that strict liability with respect to the

victim’s age is permissible in part because a perpetrator who “confronts the underage victim

personally . . . may reasonably be required to ascertain that victim’s age.”91 As will be discussed

later, the main drawback of the empirical rationale is that it is not true in every case.

                                     2. Statutory Developments

       Three statutory developments in Texas may undercut these rationales. The first is the

abolition of the offense of fornication. The legislature repealed the statutes outlawing fornication

and adultery in 1973.92 To the extent that one might, in the past, have argued that a person

necessarily possessed a mental culpability with respect to risky or dangerous circumstances because

engaging in sexual relations with a non-spouse was a crime, that rationale no longer applies. But as

explained above, our Court also explicitly articulated a rationale based on societal morals rather than

merely on the illegality of fornication.

       The second development is the fact that the age of consent has risen throughout the years.

In 1879, sexual relations with a consenting child was rape only if the child was “a female under the



       91
          Owens, 352 Md. at 680, 724 A.2d at 51. The Maryland court elaborated, “Indeed, it is
hard to imagine when a defendant, necessarily four years older than the victim . . . would be ‘morally
blameless’ when he or she engages in sexual intercourse with a child as young as age 13.” Id. at 680-
81, 724 A.2d at 51-52.
       92
          See City of Sherman v. Henry, 910 S.W.2d 542, 551 n.4 (Tex. App.–Dallas 1995) (citing
TEX . PENAL CODE ANN . art. 503 (Vernon 1925), repealed by Act of June 14, 1973, 63d Leg., R.S.,
ch. 399, § 1973 Tex. Gen. Laws 883, 992 (fornication); TEX . PENAL CODE ANN . art. 499 (Vernon
1925), repealed by Act of June 14, 1973, 63d Leg., R.S., ch. 399, § 1973 Tex. Gen. Laws 883, 992
(adultery)).
                                                                        FLEMING DISSENT — 22
age of ten.”93 In 1895, such conduct became rape only if the child was a “female under the age of

fifteen years, other than the wife” of the actor.94 In 1925, such conduct became rape if the child was

a female under the age of eighteen and was not the wife of the actor, but it was a defense if the actor

could show that the child was at least fifteen, consented, and “was not of previous chaste

character.”95 In 1974, various child sex offenses proscribed various forms of sexual conduct with

a child younger than seventeen (who was not a spouse), but it was a defense that the child was at

least fourteen and had a history of engaging promiscuously in the sexual conduct.96 The promiscuity

defense was deleted from the various child sex offenses in 1994.97 Our state’s modern child-sex-

offense statutes generally provide an age of consent of seventeen,98 with younger ages resulting in

an aggravated offense or an aggravated punishment,99 but one Texas statute criminalizes sexual

conduct involving a child under age eighteen.100 Texas retains a defense for consensual sexual



       93
             TEX . PENAL CODE art. 528 (1879).
       94
             TEX . PENAL CODE art. 633 (1895).
       95
             TEX . PENAL CODE art. 1183 (1925).
       96
             TEX . PENAL CODE §§ 21.09, 21.10, 21.11 (Vernon’s 1974).
       97
          Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994 (amending TEX . PENAL CODE §§
21.11, 22.011).
       98
             TEX . PENAL CODE §§ 21.11(a), 22.011(c)(1).
       99
             Id. §§ 21.02(b)(2) (age 14), 22.021(a)(2)(B), (f)(2) (same), 22.021(f)(1) (age 6).
       100
             TEX . PENAL CODE § 43.25(b) (“A person commits an offense if, knowing the character
and content thereof, he . . . induces a child younger than 18 years of age to engage in sexual conduct
. . . .”). At one time, it was an affirmative defense to prosecution under this provision if the actor
“in good faith, reasonably believed that the child . . . was 18 years of age or older.” See TEX . PENAL
CODE § 43.25(f)(1) (West 2000). This affirmative defense no longer exists. See TEX . PENAL CODE
§ 43.25, passim (current).
                                                                        FLEMING DISSENT — 23
relations with a child fourteen years or older who is the spouse of the actor.101

       It appears that the rising age of consent has been a trend in other states as well.102 The

Supreme Court of California has suggested that the purpose of the rule that a defendant acts “in

peril” with respect to the child’s age has been undermined by statutory increases in the age of

consent.103 In Hernandez, that court noted that the Model Penal Code prescribes a mistake-of-age

defense when the criminality of any conduct depends on the child being under a specified age that

is higher than ten.104 The court also quoted from a commentator who criticized the logic of applying

strict liability after the age of consent had been raised above ten:

       When the law declares that sexual intercourse with a girl under the age of ten years
       is rape, it is not illogical to refuse to give any credence to the defense, “I thought she
       was older, and I therefore did not believe that I was committing a crime when I had
       sexual intercourse with her.” . . . But when age limits are raised to sixteen, eighteen,
       and twenty-one, when the young girl becomes a young woman, when adolescent boys
       as well as young men are attracted to her, the sexual act begins to lose its quality of
       abnormality and physical danger to the victim. Bona fide mistakes in the age of girls
       can be made by men and boys who are no more dangerous than others of their social,
       economic and educational level. . . . Even if the girl looks to be much older than the
       age of consent fixed by the statute, even if she lies to the man concerning her age, if
       she is a day below the statutory age sexual intercourse with her is rape. The man or
       boy who has intercourse with such girl still acts at his peril. The statute is interpreted
       as if it were protecting children under the age of ten.105



       101
            Id. §§ 21.11(b-1), 22.011(e)(1), 43.25(f)(1). See also id. §§ 21.02, 22.021 (applying to
children under age 14 and providing no spousal defense). The discussion of defenses here is
historical and illustrative and is not an attempt to comprehensively catalogue the various defenses
that apply to sexual offenses involving children.
       102
             People v. Cash, 419 Mich. 230, 244 & n.11, 351 N.W.2d 822, 827-28 & n.11 (1984).
       103
             Hernandez, 61 Cal. 2d at 533, 393 P.2d at 675-76.
       104
             Id. at 533 n.2, 393 P.2d at 676 n.2.
       105
           Id. at 534 n.3, 393 P.2d at 676 n.3 (quoting Plascowe, SEX AND LAW , 184-85 (1951))
(emphasis in Hernandez).
                                                                        FLEMING DISSENT — 24
       Michigan’s high court has rejected the argument that the increased age of consent has

undermined the rationale for strict-liability offenses,106 and other courts have expressly declined to

follow the California Supreme Court’s ultimate holding in Hernandez.107 Furthermore, Hernandez

was not decided on constitutional grounds.108 I do not believe that the rise in the age of consent is

alone sufficient to undermine the “peril” rationales, but it is a factor to consider.

       A third potentially relevant statutory development in Texas is the dramatic increase in the

length of the period of limitations applicable to child sex offenses. In 1974, all sex offenses had a

limitation period of one year.109 The short limitation period might have provided a certain amount

of protection for someone who reasonably, but mistakenly, believed that he was dealing with an

adult.110 But limitation periods have progressively lengthened for child sex offenses.111 Now there

       106
             Cash, 419 Mich at 244, 351 N.W.2d at 827-28.
       107
           State v. Superior Court of Pima County, 104 Ariz. 440, 442-43, 454 P.2d 982, 984-85
(1969); State v. Silva, 53 Haw. 232, 232-33, 491 P.2d 1216, 1216-17 (1971); State v. Stiffler, 117
Idaho 405, 409, 788 P.2d 220, 224 (1990); Garnett v. State, 332 Md. 571, 583-85, 632 A.2d 797,
803-04 (1993); Commonwealth v. Miller, 385 Mass. 521, 522-23, 432 N.E.2d 463, 464-65 (1982);
State v. Morse, 281 Minn. 378, 384-85, 161 N.W.2d 699, 703 (1968); Navarrete, 221 Neb. at 174-
75, 376 N.W.2d at 11; Goodrow v. Perrin, 119 N.H. 483, 488-89, 403 A.2d 864, 868 (1979); State
v. Yanez, 716 A.2d 759, 763-66 (R.I. 1998); State v. Fulks, 83 S.D. 433, 436-37, 160 N.W.2d 418,
419-20 (1968), overruled on other grounds by State v. Ree, 331 N.W.2d 557 (1983); State v.
Jadowski, 272 Wis. 2d 418, 441 n.49, 680 N.W.2d 810, 822 n.49 (2004).
       108
            Hernandez, 61 Cal. 2d at 536, 393 P.2d at 677 (“We hold only that, in the absence of a
legislative direction otherwise, a charge of statutory rape is defensible wherein a criminal intent is
lacking.”).
       109
           See TEX . CODE CRIM . PROC. ANN . art. 12.01, historical note (Vernon's 1977) (referring
to 1975 amendment deleting subd. (4), which had read: “one year from the date of the commission
of the offense: any felony in Penal Code Chapter 21 (Sexual Offenses)”).
       110
            This might have occurred through the exercise of prosecutorial discretion. See Morse,
281 Minn. at 385, 161 N.W.2d at 703 (“There may be cases where an application of [a law providing
that criminal intent does not require proof of knowledge of the age of a child] leads to an unjust
result. This is not one of them. In fact situations where the underage female is the aggressor and her
                                                                        FLEMING DISSENT — 25
is no limitation for the prosecution of most child sex offenses.112

        I do not question the wisdom of the legislature in enacting various changes in the law with

respect to child sex offenses. Much more information exists now than in the past about child sex

offenses that might support the wisdom of, among other changes, higher ages of consent and longer

periods of limitation, including grooming conduct engaged in by perpetrators and the characteristics

of child-sex-abuse victims.113 I mean only to point out that, in accomplishing otherwise laudable

purposes, some of these changes have stripped away certain protections from those who acted

reasonably and in good faith. This is not determinative of the issue before us but provides some

background to assess what I see as the truly new and important legal development that changes the

fundamental-rights analysis in this case.

                                        3. Lawrence v. Texas

        That development is the Supreme Court’s decision in Lawrence v. Texas. To understand the

impact of Lawrence, we must first understand the decision it overruled, Bowers v. Hardwick. In

1982, Hardwick was charged with violating a Georgia statute criminalizing sodomy for committing




male partner the real victim, it is likely that the good judgment of prosecutors and jurors will prevent
a miscarriage of justice.”).
       111
            See TEX . CODE CRIM . PROC . ANN . art. 12.01, historical note (Vernon's 1977) (1975
amendment removed one-year provision so that sex offenses would fall within catch-all provision
prescribing three-year limitation period for felonies); TEX . CODE CRIM . PROC. art. 12.01(4)(C)
(1996) (five-year limitation period); TEX . CODE CRIM . PROC. art. 12.01(5)(C) (1998) (for aggravated
sexual assault of a child, limitation period of ten years from victim’s eighteenth birthday).
       112
             TEX . CODE CRIM . PROC. art. 12.01(1)(B), (D), (E).
       113
         See Morris v. State, 361 S.W.3d 649 (Tex. Crim. App. 2011) and Cohn v. State, 849
S.W.2d 817 (1993).
                                                                       FLEMING DISSENT — 26
that act with another adult male in the bedroom of his home.114 In addressing the case, the Supreme

Court framed the issue as “whether the Federal Constitution confers a fundamental right upon

homosexuals to engage in sodomy”115 and held that it did not.116 The Court stated that the claimed

right to engage in homosexual sodomy did not bear any resemblance to rights of privacy that had

previously been recognized as protected by due process because “[n]o connection between family,

marriage, or procreation on the one hand and homosexual activity on the other has been

demonstrated.”117 In response to Hardwick’s argument that the majority of the Georgia’s electorate’s

belief that homosexual sodomy is immoral did not constitute a rational basis for a law outlawing the

practice, the Supreme Court noted that, “The law . . . is constantly based on notions of morality.”118

       In Lawrence, the Supreme Court reversed course and overruled Hardwick.119 The Court

criticized the Hardwick decision’s framing of the issue as “whether the Federal Constitution confers

a fundamental right upon homosexuals to engage in sodomy” as “disclos[ing] the Court’s own failure

to appreciate the extent of the liberty at stake.”120 The Lawrence Court pointed to what it called “an

emerging awareness” from the past half-century “that liberty gives substantial protection to adult




       114
             Hardwick, 478 U.S. at 187.
       115
             Id. at 190.
       116
             Id. at 191.
       117
             Id. at 190.
       118
             Id. at 196.
       119
             Lawrence, 539 U.S. at 578.
       120
             Id. at 566-67.
                                                                       FLEMING DISSENT — 27
persons in deciding how to conduct their private lives in matters pertaining to sex.”121 The Court

found that this liberty belongs to all adults, whether male or female, heterosexual or homosexual:

       It suffices for us to acknowledge that adults may choose to enter upon this
       relationship in the confines of their homes and their own private lives and still retain
       their dignity as free persons. When sexuality finds overt expression in intimate
       conduct with another person, the conduct can be but one element in a personal bond
       that is more enduring. The liberty protected by the Constitution allows homosexual
       persons the right to make this choice.122

And the Court found that this liberty belongs not only to married persons but also to unmarried

persons:

       [I]ndividual decisions by married persons, concerning the intimacies of their physical
       relationship, even when not intended to produce offspring, are a form of “liberty”
       protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this
       protection extends to intimate choices by unmarried as well as married persons.123

       Addressing the point made in Hardwick that “for centuries there have been powerful voices

to condemn homosexuality as immoral,” the Court responded, “Our obligation is to define the liberty

of all, not to mandate our own moral code.”124 Although a violation of the Texas statute outlawing

homosexual conduct was punished as a mere Class C misdemeanor (fine-only offense), the Court

observed that the conviction would nevertheless be on the defendant’s record and it would come

within the sex-offender registration laws of at least four States.125 The Court found that this fact



       121
             Id. at 571-72.
       122
             Id. at 567.
       123
            Id. at 578 (quoting Justice Stevens’s dissent in Hardwick and concluding, “Justice
Stevens’[s] analysis, in our view should have been controlling in [Hardwick] and should control
here.”).
       124
             Id. at 571.
       125
             Id. at 575-76.
                                                                        FLEMING DISSENT — 28
“underscores the consequential nature of the punishment and the state-sponsored condemnation

attendant to the criminal prohibition.”126

        Finally, the Court emphasized that the case before it involved consenting adults in a private

setting.127 The case did not involves minors, public conduct, injury or coercion, relationships where

consent might not easily be refused, or prostitution.128

        The rationale for holding a defendant strictly liable because he should have at least realized

that he was committing the illegal, immoral, or risky conduct of fornication with an adult has been

negated entirely by the holding in Lawrence. Under Lawrence, consensual sexual activity between

adults, married or unmarried, is constitutionally protected.129 Such activity can no longer be

outlawed, and moral considerations with respect to such activity are no longer legally relevant. After

Lawrence, “consensual sexual activity between adults is no longer subject to strict legislative

regulation,”130 and, thus, a defendant does not necessarily act at his peril when he reasonably believes

that he is having sexual relations with an adult. The holding in Lawrence has led at least two law

professors to contend in published law review articles that due process requires that a defense be

available to an individual who engages in sexual intercourse with a person that he non-negligently




        126
              Id. at 576.
        127
              Id. at 578.
        128
              Id.
        129
           Cf. Owens, 352 Md. at 684, 724 A.2d at 53 (pre-Lawrence decision stating that “[t]he
crime of statutory rape also does not implicate other constitutional rights that heighten our level
of inquiry”).
       130
          Catherine L. Carpenter, On Statutory Rape, Strict Liability, and the Public Welfare
Offense Model, 53 AM . U. L. REV . 313, 320-21 (2003).
                                                                       FLEMING DISSENT — 29
believes is an adult.131

        Few jurisdictions have addressed the impact of Lawrence on a defendant’s eligibility for a

mistake-of-age defense in “statutory rape” type prosecutions (i.e. prosecutions for child sex offenses

that impose liability on the basis of the child’s age for what would otherwise be consensual sexual

conduct). The Supreme Court of Wisconsin’s Jadowski case addressed a mistake-of-age due-process

claim within a year after Lawrence was decided but did not cite it.132 The Supreme Court of North

Dakota has recently rejected a mistake-of-age due-process claim without mentioning Lawrence.133

In Wilson, the Court of Appeals for the Armed Forces cited Lawrence but decided the mistake of-age

question as a matter of federal statutory law.134 The Supreme Court of New Hampshire discussed

Lawrence and maintained that the imposition of strict liability for child sex offenses was permissible

because such imposition was grounded in part on reasons other than the intent to commit the

wrongful act of fornication,135 though it appears that the court may not have been responding to a



        131
           Arnold Loewy, Statutory Rape in a Post Lawrence v. Texas World, 58 SMU L. REV . 77,
77 (Winter 2005); Carpenter at 321. See also Jarrod Foster Reich, Note,“No Provincial or Transient
Notion”: The Need for a Mistake of Age Defense in Child Rape Prosecutions, 57 VAND . L. REV . 693,
723-25 (March 2004) (“If a person honestly and reasonably believes certain facts that would make
his conduct fall within Lawrence’s constitutionally protected private sphere, he should not be
criminally punished for an act committed under this mistaken belief.”).
        132
              See Jadowski, 272 Wis. 2d at 438-442, 680 N.W.2d at 820-22.
        133
              State v. Vandermeer, 843 N.W.2d 686, 691 (N.D. 2014).
        134
              Wilson, 66 M.J. at 41 & passim.
        135
            State v. Holmes, 154 N.H. 723, 727-28, 920 A.2d 632, 635-36 (2007) (“We decided
Goodrow, however, assuming, without deciding, that the plaintiff had a constitutionally protected
privacy right to engage in consensual heterosexual intercourse with other adults . . . . Thus, the
developments in the law since we decided Goodrow would not change our analysis. Moreover,
intent to commit the then-legally wrongful act of fornication was only one of the rationales for
statutory rape laws.”).
                                                                           FLEMING DISSENT — 30
constitutional claim.136 Aside from the court below, I am aware of two intermediate appellate courts

that have held that Lawrence did not affect a defendant’s eligibility for a mistake-of-age instruction

because the sexual conduct was in fact committed against a minor and Lawrence’s holding does not

apply to minors.137

        But the courts that say simply that Lawrence does not apply when a minor is involved have

missed the point—making the same mistake ascribed by the Lawrence court to the Hardwick

decision: having an overly narrow concept of the right at stake. If the defendant non-negligently

believed that he was having consensual sex with an adult, then he non-negligently believed in the

existence of circumstances that would constitutionally protect him from liability under Lawrence.

Such a non-negligent belief would negate the existence of even the most minimal sort of mental

culpability. In any event, at least three of the post-Lawrence cases involved a defendant who

believed that the complainant was seventeen.138 As I shall explain below, a belief that the

complainant was under age eighteen but over the age of consent does not qualify, for constitutional

purposes under Lawrence, as a belief that the complainant was an adult.

                                   4. Limits of Lawrence’s Holding



        136
            Id. at 725, 727, 920 A.2d at 634, 635 (“The defendant first contends that we failed to
interpret the statutory rape provision . . . and its predecessors, correctly in our prior cases because
we did not take into account another provision of the Criminal Code . . . . The defendant next asserts
that because adult consensual sexual relationships are not as regulated as they were when we decided
our prior cases, there is no longer any justification for permitting strict liability for statutory rape.”).
        137
          State v. Browning, 177 N.C. App. 487, 492, 629 S.E.2d 299, 303, review denied, 360
N.C. 578, 635 S.E.2d 902 (2006); United States v. Bazar, 2012 CCA LEXIS 242, *20-21
(A.F.C.C.A. June 29, 2012, review denied).
        138
       Vandermeer, 843 N.W.2d at 691; Holmes, 154 N.H. at 723, 920 A.2d at 632; Bazar, 2012
CCA LEXIS 242, *20.
                                                                       FLEMING DISSENT — 31
       Lawrence’s holding was limited to adults. While the Court’s opinion in Lawrence did not

explicitly say what age qualifies as adulthood, the United States Constitution and Supreme Court

jurisprudence draw a distinct line at the age of eighteen. One must be at least eighteen years of age

to vote.139 Persons under eighteen years of age are considered juveniles for Eighth Amendment

purposes, rendering them ineligible for the death penalty, for life without parole in non-homicide

cases, and for automatic life without parole in any case.140 Age eighteen also appears to be the line

drawn for First Amendment purposes in determining what constitutes legally proscribable child

pornography.141 The Supreme Court has stated that “[t]he age of 18 is the point where society draws

the line for many purposes between childhood and adulthood.”142 An eighteen-year-old has a right

to exercise a certain social independence that generally does not belong to persons under that age.143

       The statutory age of consent is irrelevant in deciding what the Constitution requires.



       139
             U.S. CONST ., Amend. 26, § 1.
       140
          Roper v. Simmons, 543 U.S. 551, 578 (2005); Graham v. Florida, 560 U.S. 48, 81-82
(2010); Miller v. Alabama, 132 S. Ct. 2455, 2460 (2012).
       141
            United States v. Wilson, 565 F.3d 1059, 1067 (8th Cir. 2009) (“Although the First
Amendment protects non-obscene adult pornography, sexually explicit materials involving persons
under the age of 18 enjoy no constitutional protection.”) (citing New York v. Ferber, 458 U.S. 747,
764 (1982)).
       142
           Simmons, 543 U.S. at 574. Age eighteen is also the line drawn for determining whether
the onset of mental disability qualifies a person as mentally retarded. Ex parte Briseno, 135 S.W.3d
1, 7 (Tex. Crim. App. 2004).
       143
            See Navarro v. Pfizer Corp., 261 F.3d 90, 107 (1st Cir. 2001) (Campbell, J., dissenting)
(referring to “the typical scenario in which, at and after age 18, a child may be regarded as having
achieved substantial independence and self-sufficiency so as to be able to live on her own, support
herself, and be ministered to by others than her parents”); Tyson v. Heckler, 727 F.2d 1029, 1032
(11th Cir. 1984) (Kravitch, J., concurring) (“in light of the Twenty-sixth Amendment and the
legislative trend toward using eighteen years of age as the age of majority, twenty-one no longer is
a reliable benchmark of an individual’s independence from his parents”).
                                                                       FLEMING DISSENT — 32
Constitutionally, it does not matter that a defendant lacked a culpable mental state with respect to

the age of consent, if that age is younger than eighteen. The constitutional alchemy144 kicks in only

when the defendant lacks a culpable mental state with respect to whether the child was in fact a

child. For the “peril” rationales to be negated under Lawrence, a person must non-negligently

believe that his sexual partner is eighteen years of age or older. A person who knows or should

know that he is dealing with a child—that is, someone under age eighteen—continues to act at his

peril that the child may be younger than he supposes.

       For this reason, we should not quarrel with the results in the three post-Lawrence cases

involving defendants who believed that their victims were seventeen years old because those

defendants were at least culpable with respect to whether their victims were children. The results

in a number of older cases could also be upheld on this basis.145


       144
           In her article, “Texas Holds Him,” for Slate.com (posted October, 10, 2007), Dahlia
Lithwick used the words, “That’s where the real constitutional alchemy kicks in,” to describe
Solicitor General Paul Clement’s position in Medellin v. Texas that President Bush’s memo to the
Attorney General was the key factor that made a judgment by the International Court of Justice under
the Vienna Convention treaty enforceable in Texas courts. The Supreme Court subsequently rejected
Clement’s position in Medellin v. Texas, 552 U.S. 491 (2008).
       145
            See Gaines v. State, 354 Ark. 89, 99, 118 S.W.3d 102, 108 (2003) (defendant argued that
“there appears to be no rationale why a victim[’s] age is easier to ascertain when they are younger
than fourteen as opposed to being fourteen or older”); Owens, 352 Md. at 667, 674, 724 A.2d at 45,
48 (victim told police officer that she was sixteen years old, issue before the court was “whether due
process requires that Owens be allowed to defend the charge of statutory rape on the grounds that
he reasonably believed that the victim was above the age of 13”); Murphy, 165 Mass. at 70, 42 N.E.
at 504 (defendant asked for instruction that he could not be convicted unless he “knew or had good
reason to believe that the girl was under sixteen years of age”); Cash, 419 Mich. at 236, 351 N.W.2d
at 824 (defendant claimed that victim had said she was seventeen); Houx, 109 Mo. at 661, 19 S.W.
at 37 (defendant sought to present testimony “tending to prove that he had reason to believe that the
prosecutrix was . . . over the age of twelve years”); Yanez, 716 A.2d at 766 (defendant claimed that
victim told him that she was sixteen years old); Wade, 224 N.C. at 761, 32 S.E.2d at 315 (defendant
testified that the victim told him that she was twelve); Zachary, 57 Tex. Crim. at 182, 122 S.W. at
265 (defendant claimed that victim had told him that she was over the age of fifteen years);
                                                                         FLEMING DISSENT — 33
        The holding in Lawrence is limited in a few other respects, including the fact that it applies

only to activity that is consensual and that it does not apply to prostitution.146 If a defendant commits

a factually non-consensual sexual assault (e.g., by force) or hires a prostitute,147 the holding in

Lawrence will not be available to negate his mental culpability. The various limitations of Lawrence

also mean that Lawrence cannot be used to justify the submission of a lesser-included offense. If,

even under the facts believed by him or that he ought to believe, the defendant’s conduct would not

be protected under Lawrence, then Lawrence’s holding is not available to negate the defendant’s

mental culpability, and the defendant can be held to have acted in peril that the facts are even worse

than he supposes.

                                     5. The Empirical Rationale

        The holding in Lawrence leaves room for what I have termed the empirical rationale for

imposing strict liability for child sex offenses: that a person knows or should know from observing

and interacting with an underage individual that the individual is in fact a child.148 There are

undoubtedly ages at which, under all or most circumstances, it is simply not possible for a child to

be reasonably mistaken for an adult. In responding to appellant’s facial challenges to the aggravated-




Lawrence v. Commonwealth, 71 Va. 845, 855 (1878) (defendant sought instruction that the jury
cannot find him guilty if it believed that the victim “stated to him she was twelve years old, and that
he had reasonable cause to believe that she was twelve years old”).
        146
              Lawrence, 539 U.S. at 578.
        147
            The trafficking of children for the purpose of prostitution is a recognized subject of
international conventions. Velez v. Sanchez, 693 F.3d 308, 323 (2d Cir. 2012).
        148
           As the earlier discussion indicates, the post-Lawrence question is not whether, as an
empirical matter, a person could mistake a child for an older child, e.g. a thirteen-year-old for a
fourteen-year-old.
                                                                           FLEMING DISSENT — 34
sexual-assault statute, the amicus brief149 offers the hypothetical of an adult male who causes his

sexual organ to penetrate the anus or sexual organ of a two-year-old child. The amicus is exactly

right that no reasonable adult would mistake the two-year-old for an adult. And the amicus is exactly

right that this hypothetical, by itself, causes appellant’s facial challenges to fail.150

         The amicus brief emphasizes that the offense at issue in the present case is aggravated

sexual assault, involving a child under age fourteen, and the amicus argues that no fundamental right

is involved in such a case. There is some support for this position. The Supreme Court of

California, which first recognized a mistake-of-age defense to statutory rape, has indicated that

children under age fourteen are considered “infants” or “of tender years” and that a mistake-of-age

defense may “be untenable when the offense involved a child that young.”151 On the other hand, the

California court’s holding concerned the offense of lewd or lascivious conduct, and the court held

that “the public policy considerations in protecting children under the age of 14 from lewd or

lascivious conduct are substantial—far more so than those associated with unlawful sexual

intercourse.”152 The Court of Appeals of Maryland has noted that “Maryland’s statutory rape law

is less likely than a number of other state statutes to reach noncriminal sexual conduct since the


        149
              Submitted by the 35th Judicial District Attorney’s office.
        150
            A statute that does not implicate First Amendment freedoms can be held unconstitutional
on its face only if it is unconstitutional in all of its applications. State v. Rosseau, 396 S.W.3d 550,
557-58 (Tex. Crim. App. 2013). See also Wash. State Grange v. Wash. State Republican Party, 552
U.S. 442, 449 (2008) (stating that, under United States v. Salerno, 481 U.S. 739 (1987), a party must
establish that no set of circumstances exists under which the statute would be valid, and that while
some members of the Court have criticized the Salerno formulation “all agree that a facial challenge
must fail where the statute has a ‘plainly legitimate sweep.’”).
        151
              People v. Olsen, 36 Cal. 3d 638, 645-46, 685 P.2d 52, 56-57 (1984).
        152
              Id. at 649, 685 P.2d at 59 (emphasis added).
                                                                         FLEMING DISSENT — 35
victim in Maryland must be under fourteen years of age, while other states have adopted older ages

of consent.”153 In any event, most states that allow a mistake-of-age defense disallow such a defense

when the child’s age drops below a certain threshold.154 There seems to be no unanimity as to the

threshold age, however, with ages ranging from twelve to sixteen.155

        Moreover, it is commonly known that some children enter puberty and mature before the age

of fourteen and may look like an adult.156 As explained above, there are ages—such as age


        153
              Owens, 352 Md. at 686 n.15, 724 A.2d at 54 n.15.
        154
            ARIZ. REV . STAT . § 13-1407(B) (age 15); ARK. CODE ANN . § 5-14-102(b), (c), (d) (age
14 if actor is at least age 20); COLO . REV . STAT . § 18-1-503.5 (age 15); 720 ILL. COMP . STAT . 5/11-
1.60(c), (d) & 5/11-1.70(b) (age 13); ME . REV . STAT . tit. 17-A §§ 253(1)(B), 254(1)(A), (2) (age 14);
MINN . STAT . §§ 609.343(a), 609.344(a), (b) (age 13 or age 16 depending upon the relative age of the
actor); MO . ANN . STAT . § 566.02(1), (2) (age 14); MONT . CODE ANN . § 45-5-511(1) (age 14); Perez,
111 N.M. at 162, 803 P.2d at 251 (age 13); N.D. CENT . CODE § 12.1-20-01 (age 15); OHIO REV .
CODE ANN . §§ 2907.02(b), 2907.04(a) (age 13); OR. REV . STAT . § 163.325(1), (2) (age 16); 18 PA .
CONS. STAT . § 3102 (age 14); TENN . CODE ANN . §§ 39-11-502(a), 39-13-504(a)(4), 39-13-522(a)
(age 13); W. VA . CODE ANN . §§ 61-8B-3, 61-8B-7, 61-8B-12 (age 12); WYO . STAT . § 6-2-308 (age
14).
        155
              See this opinion, previous footnote.
        156
            See Olsen, 36 Cal. 3d at 645-46, 685 P.2d at 56 (court of appeals “recognizing that some
females reach puberty below the age of 14”); United States v. Langley, 549 F.3d 726, 731-32 (8th Cir.
2008) (Beam, J., concurring) (government’s attorney stated in oral arguments, “[I]f you’re dealing
with a child over the age of twelve or thirteen and puberty has hit . . . the government does not
charge those cases unless you have someone to definitely state the age because it is difficult once a
female in particular hits puberty to know exactly what age they are.”); Free Speech Coalition v.
Holder, 957 F. Supp. 2d 564, 578 (E.D. Pa. 2013) (government witness, a medical doctor, testified
that the classic literature suggests that girls reach full maturation between ages fourteen and sixteen,
but he further testified that he had published literature suggesting that maturation for girls is actually
occurring earlier, and he testified that determining one’s age by visual inspection alone is an inexact
science, with a two to five year margin of error, and that margin is greater for members of the
public); Timothy J. v. Superior Court, 150 Cal. App. 4th 847, 854, 58 Cal. Rptr. 3d 746, 749 (Cal.
App. 3rd Dist. 2007, req. denied) (clinical and forensic neuropsychologist testified that a person
reaches puberty around the ages of eleven, twelve, and thirteen); Frederic v. State, 770 So. 2d 719,
720 (Fla. App. 4th Dist. 2000), pet. dism’d, 817 So. 2d 846 (2002) (victim’s pregnancy showed that
she had already reached puberty at age thirteen); Commonwealth v. Walter R., 414 Mass. 714, 717-
                                                                         FLEMING DISSENT — 36
two—about which we can say, by virtue of the age alone, that it is simply not possible to reasonably

mistake the child for an adult. But age thirteen is not such an age. It is true that the younger the

child, the less likely it is that a mistake as to adulthood could reasonably be made. But the

fundamental-rights question here—involving the defendant’s mental culpability—does not turn upon

what may generally be true about children of a certain age; it turns upon the defendant’s mental

culpability with respect to the child in question.157

                          D. Compelling Interests and Narrow Tailoring

        It is beyond dispute that the State has a compelling interest in safeguarding the physical and

psychological well-being of children.158 Protecting children is a widely articulated rationale for

imposing strict liability for child sex offenses.159 Courts have variously held that strict-liability laws



18, 610 N.E.2d 323, 325 (1993) (holding in a juvenile-delinquency case that “there is no sound legal
or medical basis for a presumption that an individual under fourteen is incapable of rape, as defined
at common law” and commenting that medical information suggests that “[o]ver the past century,
the onset of puberty has gradually occurred at a younger age, and currently begins between the ages
of ten and twelve”); In re Frederick, 63 Ohio Misc. 2d 229, 232 n.1, 622 N.E.2d 762, 764 n.1 (Court
of Common Pleas, Cuyahoga Co., Juvenile Div. 1993) (stating that the “average age of puberty for
females is eleven to eleven and a half years, and as young as nine years is considered within the
range of normal. The average age of puberty for males is twelve and a half to thirteen years”).
        157
            There are situations in which a somewhat arbitrary line with respect to a child’s age can
be drawn in a statute, such as when criminal conduct becomes a greater offense or is punished more
severely if the child is below a certain age. See Black, 26 S.W.3d at 897-98 (capital murder of a
child under age six). Arbitrary line drawing in those situations is permitted for policy reasons. Id.
Such policy reasons are inapplicable to the question of whether, as a factual matter, a fundamental
right is implicated because the defendant entirely lacked any mental culpability with respect to the
complainant’s status as a child.
        158
          United States v. Stevens, 559 U.S. 460, 471 (2010); Osborne v. Ohio, 495 U.S. 103, 109
(1990) (quoting New York v. Ferber, 458 U.S. 747, 756 (1982)); Black, 26 S.W.3d at 897 (citing
Henderson v. State, 962 S.W.2d 544, 562 (Tex. Crim. App. 1997) (plurality op.)).
        159
           See Gaines, 354 Ark. at 102, 118 S.W.3d at 109 (“[T]he state has an interest in the
general welfare of children, and one of the most obvious duties is to protect children from sexual
                                                                        FLEMING DISSENT — 37
for child sex offenses are needed to prevent the exploitation of children by predators,160 to protect

children from physical injury,161 to prevent teenage pregnancy,162 to protect children from sexually




crimes against which children are virtually defenseless.”); Owens, 352 Md. at 681-82, 724 A.2d at
52 (“The case law testing the constitutionality of strict liability statutory rape law is unanimous in
recognizing the significance of the potential harm caused by sexual activity involving children, even
with their consent.”); Cash, 419 Mich. at 242, 244, 351 N.W.2d at 827, 828 (articulating “the need
to protect children below a specified age from sexual intercourse on the presumption that their
immaturity and innocence prevents them from appreciating the full magnitude and consequences of
their conduct” and the need to protect children from the “possible physical or psychological harm
from engaging in sexual intercourse”); Collins, 691 So. 2d at 923 (articulating one basic rationale
for statutory rape law as “the need for strict accountability to protect young girls”); Holmes, 154
N.H. at 727-28, 920 A.2d at 636 (quoting Collins (see above), citing other out-of-state cases, and
quoting Goodrow, 119 N.H. at 486, 403 A.2d at 866: “It is well established that the State has an
independent interest in the well-being of its youth. One reason for this heightened interest is the
vulnerability of children to harm. Another reason for the State’s concern is that minors below a
certain age are unable to make mature judgments about important matters.”); Commonwealth v.
Robinson, 497 Pa. 49, 54, 438 A.2d 964, 966 (1981) (referring to “the legislative desire to protect
those who are too unsophisticated to protect themselves”); Yanez, 716 A.2d at 766 (absence of mens
rea “is designed to subserve the state interest of protecting female children from the severe physical
and psychological consequences of engaging in coitus before attaining the age of consent”); Fulks,
83 S.D. at 436, 160 N.W.2d at 420 (“The arbitrary age of consent in these cases has been established
by our legislature as a matter of public policy for the obvious protection of young and immature
females.”); Jadowski, 272 Wis. 2d at 431, 680 N.W.2d at 817 (“The statute is intended to protect
children. The state has a strong interest in the ethical and moral development of its children, and this
state has a long tradition of honoring its obligation to protect its children from predators and from
themselves.”).
       160
           Superior Court of Pima County, 104 Ariz. at 443, 454 P.2d at 985 (“We do not think the
predatory nature of man has changed in the last decade.”); Owens, 352 Md. at 681-82, 724 A.2d at
52 (discussing the need to prevent the exploitation of children); Cash, 419 Mich. at 244, 351 N.W.2d
at 828 (same); Jadowski, 272 Wis. 2d at 431, 680 N.W.2d at 817 (discussing the need to protect
children from predators).
       161
             Cash, 419 Mich. at 244, 351 N.W.2d at 828; Yanez, 716 A.2d at 766.
       162
             Stiffler, 117 Idaho at 407, 788 P.2d at 222; Owens, 352 Md. at 682, 724 A.2d at 52.
                                                                        FLEMING DISSENT — 38
transmitted diseases,163 and to protect children from psychological injury and stigma.164 Strict-

liability statutes have been said to achieve this goal of protecting children by deterring adults from

engaging in the prohibited conduct165 and by making prosecutions easier by eliminating difficulties

of proof that may occur due to the rapid physical development of children or the difficulty in

rebutting a defendant’s claims of mistake.166

         But a rule of rigorous strict liability—that flatly denies any defense based upon mistake of

age, no matter how reasonable the defendant’s mistake was nor what age he reasonably believed the

complainant to be—is not narrowly tailored to achieve the goal of protecting children. Such a rule


       163
             Owens, 352 Md. at 682, 724 A.2d at 52.
       164
          Id. at 682-83, 724 A.2d at 52-53; Cash, 419 Mich. at 244, 351 N.W.2d at 828; Yanez, 716
A.2d at 766.
       165
           Holton, 28 Fla. at 307, 9 So. at 717 (“The object of the law is to deter men, by the severe
penalty imposed, from voluntarily seeking intercourse with unmarried females within the prohibited
age. Not only that the pure may be shielded from contamination, but that the fallen shall be deprived
of the opportunity to further continue their life of sin.”); Owens, 352 Md. at 685, 724 A.2d at 54
(“Deterrence is accomplished by placing the risk of error in judgment as to a potential sex partner’s
age with the potential offender.”); Collins, 691 So. 2d at 923 (“If reasonable mistake were
recognized as a defense, the very purpose of the statute would be frustrated and the deterrent effect
considerably diminished.”); Holmes, 154 N.H. at 728, 920 A.2d at 636 (“The statutes are designed
to impose the risk of criminal penalty on the adult . . . [and] [i]n this way, these statutes accomplish
deterrence”); Jadowski, 272 Wis. 2d at 431, 680 N.W.2d at 817 (“The statutes are designed to
impose the risk of criminal penalty on the adult, when the adult engages in sexual behavior with a
minor.”).
       166
            Owens, 352 Md. at 687, 724 A.2d at 55 (stating that strict liability “avoids the risk that
the inevitably emotional statutory rape trial will focus unjustifiably on the child’s appearance and
level of maturity” and quoting from Cash: “The obvious problem is that because early adolescents
tend to grow at a rapid rate, by the time of trial a relatively undeveloped young girl or boy may have
transformed into a young woman or man.”); Cash, 419 Mich. at 245, 351 N.W.2d at 828; Jadowski,
272 Wis. 2d at 431-32, 680 N.W.2d at 817 (stating that a mistake-of-age defense “would raise
practical law enforcement problems. Age is difficult to ascertain, and actors could often reasonably
claim that they believed their victims were adults”). See also Dep’t of H.U.D. v. Rucker, 535 U.S.
125, 134 (2002) (“Strict liability maximizes deterrence and eases enforcement difficulties.”).
                                                                         FLEMING DISSENT — 39
imposes liability on even the diligent defendant, who exercises all the reasonable caution that society

would expect of him.167 A defendant who is diligent about ascertaining that his sexual partner is an

adult, and reasonably (but mistakenly) believes that to be so, is not a sexual predator, nor is his

relationship with the child one of exploitation.168

        Moreover, various mechanisms, other than rigorous strict liability, can be used to deter adults

from choosing the very young as sexual partners. The law can impose an explicit requirement of

diligence.169 The law can also require that the actor’s reasonable, diligence-based, belief be that the

child was an adult, not merely a child above the age of consent. An actor can thus be expected to

look for social independence or other factors that signify adult status (e.g. attending university,

having a of residence of one’s own, paying bills). The law can also make the reasonable-mistake-of-

age issue an affirmative defense, placing the burden upon the defendant to prove the circumstances

that would exculpate him.170 Placing such a burden on the defendant would preserve the heavy


        167
           See Hernandez, 61 Cal. 2d at 534, 393 P.2d at 676 (referring to, as lacking criminal intent,
the defendant who “has subjectively eliminated the risk [of sex with an underage person] by
satisfying himself on reasonable evidence that the crime cannot be committed”).
        168
          Stiffler, 117 Idaho at 407, 788 P.2d at 222 (“We concede that the protection of girls from
conscienceless men is a purpose that would not be violated by a requirement of specific intent before
conviction. As to that purpose it is the conscience or state of mind of the perpetrator that is at issue.
Likewise, exploitation focuses on the advantage gained by the perpetrator of the act. This is a state
of mind of the perpetrator, not an effect on the female.”).
        169
           See Elton, 680 P.2d at 729 (holding that the purpose of deterring persons from engaging
in intercourse with the young can be accomplished by imposing liability upon proof of criminal
negligence).
        170
           The Supreme Court has held that the State can impose a burden on the defendant to prove
a confession-and-avoidance type defense without violating due process. Dixon v. United States, 548
U.S. 1, 6-8 (2006) (duress); Patterson v. New York, 432 U.S. 197, 205-10 (1977) (extreme-
emotional-disturbance defense in a murder case, which, if proven, would reduce the offense to
manslaughter); Id. at 210 (“We thus decline to adopt as a constitutional imperative, operative
                                                                        FLEMING DISSENT — 40
incentive to be cautious because a person would know that, if he were accused: (1) the State would

only have to prove the age of the child for the prosecution to go forward, (2) the defendant would

have the burden to produce evidence of and prove his reasonable-mistake defense, (3) the trial judge

might choose not to submit the defense, on the basis that the defendant has not sufficiently met his

burden of production on an element of his defense or the evidence conclusively demonstrates that

an element of his defense is not met, and (4) even if the defense is submitted, the finder of fact might

choose not to believe the defendant’s evidence.

        With respect to the asserted difficulties in proof due to a child’s rapid physical development

and a defendant’s ability to plausibly assert a mistake, such concerns are alleviated in an age of

digital cameras and camcorders, in which it has become much easier to create and retain images of

one’s children. The ease with which images can be created increases the likelihood that a finder of

fact will be able to examine images of the child from the relevant time periods. In any event, placing

the burden of production and persuasion on the defendant with respect to the mistake-of-age issue

would also alleviate this concern because the defendant, not the State, would suffer the risk of loss

if the finder of fact is uncertain about the genuineness or reasonableness of any mistake about the

child’s age.

        Some courts have said that recognizing a reasonable-mistake-of-age defense would




countrywide, that a State must disprove beyond a reasonable doubt every fact constituting any and
all affirmative defenses related to the culpability of an accused . . . . Proof of the non-existence of
all affirmative defenses has never been constitutionally required.”). Even the dissent in Patterson
recognized the legitimacy of imposing the burden of proof on the defendant for some types of
defensive issues, and it cited, as one example, the adoption in a number of states of a defense to
statutory rape “if the defendant shows that he reasonably believed his partner was of age.” Id. at
229-30 & n.14 (Powell, J., dissenting).
                                                                          FLEMING DISSENT — 41
“considerably diminish[]” the deterrent effect of child-sex-offense statutes,171 but such conclusions

appear to be mere speculation.172 As explained above, twenty states have some form of mistake-of-

age defense, and I am unaware of any evidence that those states have a higher incidence of child sex

offenses, or a significantly lower incidence of successful prosecutions, than states that provide no

such defense.173 Although the mere speculative possibility of a greater deterrent effect would be

sufficient to justify a rigorous strict-liability regime under the rational-basis test,174 such speculation




        171
           Holmes, 154 N.H. at 728, 920 A.2d at 636; Collins, 691 So. 2d at 923. See also Yanez,
716 A.2d at 769 (quoting Francis Bowes Sayre, Public Welfare Offenses, 33 COLUM . L. REV . 55,
73-74 (1933): “The reason that mistake of fact as to the girl's age constitutes no defense is, not that
these crimes like public welfare offenses require no mens rea, but that a contrary result would strip
the victims of the protection which the law exists to afford. Public policy requires it. Unless
defendants were made to determine at their peril whether or not their victims fall within the class
peculiarly needing the protection of the law and thus set apart, there could be no real protection.”).
        172
             See Pietila v. Congdon, 362 N.W.2d 328, 334 (Minn. 1985) (referring to “[t]he
extraordinary speculation inherent in the subject of deterrence of crime”); Goldberg v. Housing
Authority, 38 N.J. 578, 590, 186 A.2d 291, 297 (1962) (referring to “the extraordinary speculation
inherent in the subject of deterrence of men bent upon criminal ventures”); State v. Thurman, 846
P.2d 1256, 1264 n.7 (Utah 1993) (“We acknowledge that a determination of what must be done in
the interest of deterrence must involve a fair degree of speculation until much more is known about
the way deterrence works in fact than now seems knowable.”) (internal quotation marks omitted).
        173
            See also Loewy at 100 (“There is no evidence that those states that allow reasonable
mistake of age as a defense have fewer statutory rape prosecutions or a significantly higher acquittal
rate.”). Furthermore, the amicus brief contends, “Most sexual assaults of children are committed by
someone the child knows, such as a parent, parent figure, or a familiar and authoritative adult.”
Amicus at 7 (citing Thomas D. Lyon and Julia A. Dente, Child Witnesses and the Confrontation
Clause, 102 J. CRIM . L. & CRIMINOLOGY 1181, 1203-05 (Fall 2012)). If that is true, then a mistake-
of-age defense would not be available to most persons who are charged with sexual assaults of
children because those persons would or should know the child’s age.
        174
           Heller v. Doe, 509 U.S. 312, 320 (1993) (Under the rational basis test, “[a] State . . . has
no obligation to produce evidence to sustain the rationality of a statutory classification. A legislative
choice is not subject to courtroom factfinding and may be based on rational speculation unsupported
by evidence or empirical data.”); Federal Communications Commission v. Beach Communications,
508 U.S. 307, 314-15 (1993).
                                                                         FLEMING DISSENT — 42
is not sufficient to establish narrow tailoring under the compelling-state-interest test that applies

when a fundamental right is implicated.175

        But if one considered the speculative possibility of an increase in deterrence, one would also

want to consider how a rigorous-strict-liability regime could produce additional victims. The

obvious example implicated in the present discussion is the essentially innocent defendant who is

punished for a crime for which he entirely lacks any mental culpability. But other examples of the

potential perverse effects of a rigorous-strict-liability regime can be conceived. An underage




        175
              Consol. Edison Co. v. Public Serv. Comm’n, 447 U.S. 530, 543 (1980) (“Mere
speculation of harm does not constitute a compelling state interest.”); Sherbert v. Verner, 374 U.S.
398, 406-07 (1963) (We must next consider whether some compelling state interest enforced in the
eligibility provisions of the South Carolina statute justifies the substantial infringement of appellant's
First Amendment right . . . . The appellees suggest no more than a possibility that the filing of
fraudulent claims by unscrupulous claimants feigning religious objections to Saturday work might
not only dilute the unemployment compensation fund but also hinder the scheduling by employers
of necessary Saturday work . . . . [E]ven if the possibility of spurious claims did threaten to dilute
the fund and disrupt the scheduling of work, it would plainly be incumbent upon the appellees to
demonstrate that no alternative forms of regulation would combat such abuses without infringing
First Amendment rights.”).
         Judge Alcala’s concurrence speculates that permitting a mistake-of-age defense would
negatively impact the reporting and prosecution of child sex offenses, but I am aware of no evidence
that jurisdictions that have recognized a mistake-of-age defense have had a decline in the reporting
and prosecution of child sex offenses. The concurrence also contends that defense attorneys will be
able to ask invasive questions of the child “in virtually any case in which a defendant could plausibly
claim that he was unaware of the complainant’s age.” But if, as seems likely, the adult that has
sexual relations with a young child is usually a family member, close family friend, familiar authority
figure, or a kidnapper, then it will not be often that the defendant in a young-child case can plausibly
claim reasonable, actual ignorance of the child’s age. Further, the defendant has to raise the issue
first, probably by his own testimony. So the victim would not be subject to such cross-examination
during the State’s case-in-chief, and any such questions would normally not be permissible unless
and until they have been shown to be relevant to the defendant’s allegations. And the defendant’s
evidence of mistake of age would have to indicate a mistake about whether the child was an adult,
and not merely about whether the defendant perceived the child to be older than he or she actually
was.
                                                                       FLEMING DISSENT — 43
individual could lure an unsuspecting adult into a sexual liaison for the purpose of blackmail.176 The

existence of several cases involving blackmail about illicit sex—including one that involved a

mistake of age—suggests that the scenario is not entirely far-fetched.177

        In an article, entitled “The Paradox of Statutory Rape,” another troubling scenario has been

suggested: that an adult rape victim of an underage attacker could be liable for rape under statutory-

rape laws.178 The authors argue that conduct by an adult rape victim of an underage attacker will

often satisfy the literal elements of statutory rape and that the available defenses in many




       176
           Elton, 680 P.2d at 732 (referring to possibility that a youth will “seek[] to abuse the
criminal law for his or her own sensual indulgences or for even more insidious purposes, such as
blackmail”).
       177
            See Blackwell v. State, 2013 Tex. App. LEXIS 12606, *1-4 (Tex. App.–Houston [1st
Dist.] October 10, 2013, pet. ref’d) (not designated for publication) (19-year-old male had sex with
a 15-year-old female he met at a university party; he assumed that the girl was an adult because she
had represented herself to be a university student; he was later informed that girl had an abortion and
girl’s stepfather threatened to involve the police and demanded $3000 to pay for the cost of the
procedure); Roberts v. State, 278 S.W.3d 778 (Tex. App.–San Antonio 2008, pet. ref’d) (husband
blackmailing four men with whom his wife had affairs); Beasley v. State, 2005 Tex. App. LEXIS
9334, *2 & n.2 (Tex. App.–Houston [1st Dist.] November 10, 2005, pet. ref’d) (not designated for
publication) (tape recording of grandfather who threatened that his granddaughter would press
charges of statutory rape if defendant, a jockey, chose to participate in that night’s horse race);
Commonwealth v. Kean, 382 Pa. Super. 587, 591, 556 A.2d 374, 376 (1989), appeal denied, 525 Pa.
596, 575 A.2d 563 (1990) (“Eventually, relations between the juveniles and the appellants took a
turn for the worse. Alan and Steve borrowed the Keans’ car without their permission and then
became concerned that the Keans might notify the police. Alan and Steve were also afraid that Lucile
Kean might falsely claim that the boys had forced her to participate in their sexual activities.
Sometime during the summer of 1986, the boys decided to videotape one of their sexual encounters
with the Keans. In this way, they hoped to gather evidence that Mrs. Kean’s participation was
consensual. They also reasoned that they could use the tape to blackmail the Keans into not reporting
the unauthorized use of their vehicle.”).
       178
           See Russell L. Christopher and Kathryn H. Christopher, The Paradox of Statutory Rape,
87 Ind. L.J. 505, 506 & passim (Spring 2012).
                                                                      FLEMING DISSENT — 44
jurisdictions are insufficient to immunize the adult victim from criminal liability.179 As one

illustration, the authors discuss the facts of Henyard v. State,180 in which an adult woman was raped

at gunpoint by two males, Henyard and a fourteen-year-old.181 Although the woman was the victim

in that case, the authors contended that the woman’s submission to the underage attacker literally

satisfied the elements of the crime of statutory rape.182

       In another illustration, the authors point to Garnett v. State, a Maryland case in which the

defendant was mentally retarded.183 In that case, Raymond Garnett, a twenty-year-old mentally

retarded man with an I.Q. of fifty-two, who interacted socially at the level of age eleven or twelve,

had sex with a thirteen-year-old girl of normal intelligence.184 There was evidence that the girl

invited him up to her room through an open window and told him that she was sixteen.185 The

authors of “The Paradox of Statutory Rape” point out that, under traditional rape law, Garnett could

have been considered the victim because of his mental disability, and the thirteen-year-old could

have been seen as the rapist.186 The role reversal that results from “the paradox of statutory rape”


       179
             Id., passim.
       180
             689 So. 2d 239 (Fla. 1997).
       181
             Christopher at 506-07; Henyard, 689 So. 2d at 242-43.
       182
             Christopher at 507.
       183
             Id. at 510.
       184
             Garnett, 332 Md. at 574, 577, 632 A.2d at 798, 800.
       185
             Id. at 577, 632 A.2d at 800.
       186
           Christopher at 511 & n.53 (also quoting Professor Catherine Carpenter as observing that
“students who read Garnett in my first year Criminal Law class often view Raymond as the victim.”
Catherine L. Carpenter, The Constitutionality of Strict Liability in Sex Offender Registration Laws,
86 B.U. L. Rev. 295, 318 n.106 (2006)).
                                                                        FLEMING DISSENT — 45
may be more apparent if we consider a hypothetical fact situation in which an underage boy rapes

a mentally retarded adult woman. Under a strict-liability regime, she would be the rapist and he the

victim.

          Imposing criminal liability on the rape victim simply because the attacker was underage

would turn criminal law on its head. The possible existence of such a scenario under a rigorous

strict-liability regime poses serious due-process concerns.187       It may be that various defenses

available in Texas—duress, necessity, and insanity188—would provide protection from criminal

liability to any adult who is raped by an underage attacker. But the fact that we may need such

defenses to perform that function points to the flaws of a rigorous strict-liability regime that ignores

completely an actor’s lack of actual blameworthiness.

          The Garnett case is a real-world example that involves the mistake-of-age issue. The

argument in that case was that the defendant was entitled to assert a defense of mistake of age

because he thought the child was sixteen.189 He was not entitled to such a defense under Maryland

law.190 Nor would Lawrence help him, under the principles that I propose today, because he believed

the child to be under the age of eighteen. But the facts in Garnett’s case suggest a related, though

different, question of whether harsh punishment may be imposed upon a person who lacks mental

culpability due to a mental disability. Although Maryland’s high court upheld Raymond Garnett’s


          187
             The potential for this scenario exists because, while the absence of consent by the
complainant is an element of ordinary rape, the absence of consent by the defendant is not a defense,
per se, to statutory rape.
          188
                See TEX . PENAL CODE §§ 8.01, 8.05, 9.22.
          189
                Garnett, 332 Md. at 577, 632 A.2d at 800.
          190
                Id. at 588, 632 A.2d at 805.
                                                                         FLEMING DISSENT — 46
conviction, it acknowledged that “it is uncertain to what extent Raymond’s intellectual and social

retardation may have impaired his ability to comprehend imperatives of sexual morality in any

case.”191 Nevertheless, the court felt that its hands were tied, concluding, “extraordinary cases, like

Raymond, will rely upon the tempering discretion of the trial court at sentencing.”192 How to handle

child sex cases in which the defendant is a mentally retarded individual is not before us today, but

such a scenario presents potentially serious due-process concerns that reinforce my conclusion that

due process has a role to play in ensuring that the defendant possesses at least a minimal level of

mental culpability for such a serious crime.

       Based upon the above discussion, I conclude that a scheme of rigorous strict liability for child

sex offenses is not narrowly tailored to serve the State’s compelling interest in protecting children.

Consequently, I would hold that, absent the availability of a mistake-of-age defense, child-sex-

offense laws in Texas are unconstitutional as applied to an individual who demonstrates to the finder

of fact by a preponderance of the evidence that he reasonably believed, after exercising appropriate

diligence,193 that his sexual partner was at least eighteen years old, so long as the individual’s

conduct would otherwise constitute protected activity under Lawrence.194




       191
             Id. at 582, 632 A.2d at 802.
       192
             Id.
       193
             I will discuss that type of diligence in further detail below.
       194
             Judge Alcala’s concurring opinion contends that this Court must “abide by Supreme
Court precedent and Texas law as written, rather than legislate from the bench.” But the conclusion
that I reach today flows logically and inexorably from the Supreme Court’s holdings in Lambert and
Lawrence and from the centuries-old notion, articulated in a number of Supreme Court cases, that
heavy criminal punishment should not be imposed on someone who lacks even the most minimal
sort of mental culpability for the crime.
                                                                        FLEMING DISSENT — 47
                                           IV. REMEDY

       The procedural component of the Due Process Clause requires that a defendant be afforded

the opportunity to demonstrate that the statute is indeed unconstitutional as to him.195 For that to

occur, the defendant must be given the opportunity to offer evidence on the matter and, if the

evidence raises the issue, to have a reasonable-mistake-of-age defense submitted to the finder of fact.

The Penal Code does not contain a mistake-of-age defense, but courts are empowered to craft one

to satisfy the demands of the Constitution.196 I therefore address the content of that defense and the

circumstances under which such a defense should be submitted. The following are the elements of

a constitutionally required mistake-of-age defense:

       At the time of his conduct:

       (1) the defendant actually believed that the complainant was eighteen years of age or
       older, and the defendant was unaware of any substantial risk that the complainant
       was under the age of eighteen,

       (2) this belief and the lack of awareness was reasonable,

       (3) this actual, reasonable belief was based upon the exercise of diligence that a
       reasonable adult who contemplated sexual relations would exercise, and

       (4) but for the complainant’s age, the defendant’s conduct would constitute
       constitutionally protected consensual activity.

With respect to element (3), a defendant’s exercise of diligence would not necessarily need to be



       195
            See Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (right, rooted in part in due
process, to present a defense); Crane v. Kentucky., 476 U.S. 683, 687-91 (1986) (“We break no new
ground in observing that an essential component of procedural fairness is an opportunity to be
heard.”).
       196
            See State v. McPherson, 851 S.W.2d 846, 850 (Tex. Crim. App. 1992) (A trial court has
the authority to submit a non-statutory mitigation issue when the statute does not provide for one,
to satisfy the demands of the Constitution.).
                                                                         FLEMING DISSENT — 48
based upon affirmative conduct on his part. The complainant might voluntarily supply the

information needed, or the circumstances under which the defendant encounters the complainant

might strongly suggest that the complainant is an adult.197 But a reasonable belief that the

complainant is an adult would not ordinarily be enough to warrant a mistake-of-age instruction if it

is based upon mere fleeting or casual contact. A defendant would fail to meet element (4) if he hired

the complainant as a prostitute or if his conduct would constitute a crime even if the complainant

were an adult (e.g., forcible rape or indecent exposure).198

       As with all defenses, a defendant would be entitled to submission of this mistake-of-age

defense only “if there is some evidence, from any source, on each element of the defense that, if

believed by the jury, would support a rational inference that that element is true.”199 This is also

known as making a prima facie case with respect to each element of the defense.200 I would apply

the usual analysis with the following caveats: With respect to element (2), a defendant’s prima facie

case would fail if the evidence of the complainant’s appearance indisputably shows that the

defendant could not have reasonably mistaken the complainant for an adult.201 With respect to

element (4), a defendant would make a prima facie showing by introducing evidence that the

complainant actually consented. However, the State could negate such a showing on element (4) by

       197
          See Loewy at 80-81 (hypothetical involving an underage person who is a college
sophomore).
       198
             This is not necessarily an exclusive list of situations that fail to meet element (4).
       199
             Shaw v. State, 243 S.W.3d 647, 657-58 (Tex. Crim. App. 2007).
       200
             Id. at 657.
       201
           Elton, 680 P.2d at 732 (“Clearly the physical appearance of the victim may be persuasive
against a defendant. The physical appearance of a very young girl would, at least in some cases,
negate any affirmative misrepresentation she might make.”).
                                                                       FLEMING DISSENT — 49
providing undisputed evidence that the defendant’s conduct, even if consensual, would not be

constitutionally protected (for some other reason).

       I reiterate that this mistake-of-age defense would be an affirmative defense, which means that

the defendant would shoulder both the burden of producing evidence and the burden of persuading

the finder of fact.202 The defendant’s burden of persuasion would be by a preponderance of the

evidence.203 The constitutionally required mistake-of-age defense should not be confused with the

statutory mistake-of-fact defense. The latter is a “defense,” rather than an affirmative defense,204

and there is some difference in the elements of the two defenses.205

                                         V. DISPOSITION

       In the present case, the court of appeals addressed the merits of appellant’s constitutional

complaints by holding, as a general matter, that the aggravated-sexual-assault statute’s “lack of a

mistake-in-fact defense does not offend notions of Due Process.”206 The court of appeals did not

address a host of issues that may come into play after a holding that due process requires the

submission of a mistake-of-age defense in an appropriate case. It did not consider the issue of

procedural default, address whether the evidence raised the defense, or conduct a harm analysis.207

Nor did the court consider whether evidence was excluded that would have been relevant to the


       202
             See TEX . PENAL CODE § 2.04.
       203
             Id., § 2.04(d).
       204
             See id. §§ 2.03, 8.02.
       205
            See Celis, 416 S.W.3d at 430-31 (holding that statutory mistake-of-fact defense is
available only to negate a culpable mental state prescribed for the offense).
       206
             See Fleming v. State, 376 S.W.3d 854, 858-62 (Tex. App.–Fort Worth 2012, pet. granted).
       207
             See id.
                                                                       FLEMING DISSENT — 50
defense, and it did not consider any attendant preservation and harm analyses associated with any

such exclusion.208 It did not need to, because its holding, if it had been correct, would have properly

disposed of the case.209 I would hold that it is appropriate for the court of appeals to address these

issues in the first instance on remand.210

       With these comments, I respectfully dissent.

Filed: June 18, 2014
Publish




       208
             See id.
       209
             State v. Plambeck, 182 S.W.3d 365, 367 n.10 (Tex. Crim. App. 2005).
       210
            See Benavidez v. State, 323 S.W.3d 179, 183 n.19 (Tex. Crim. App. 2010). The Court’s
opinion considers the facts of the present case, saying, “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 he was reasonably
mistaken about whether he was having sex with an adult. And Judge Alcala’s concurring opinion
addresses whether, if a mistake-of-age defense were available, appellant in fact acted reasonably.
But the court of appeals did not decide whether appellant actually acted reasonably. That court
decided only that a mistake-of-age defense was never available under the statute. Appellant’s
petition for discretionary review challenges only that decision and his brief focuses only on the
availability of a mistake-of-age defense as a general matter. This Court has never placed appellant
on notice that the specific facts of his case would be an issue on discretionary review. We should
not reach out to decide such an issue without at least affording him the opportunity to weigh in on
the matter. See Pena v. State, 191 S.W.3d 133 (Tex. Crim. App. 2006). If we were to recognize a
mistake-of-age defense, the court of appeals should address its applicability to appellant in the first
instance. See Hudson v. State, 394 S.W.3d 522, 525 n.16 (Tex. Crim. App. 2013).
