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33 U. Mo. Kan. City L. Rev. 158 (1965)
Statutory Rape - Mistake of Fact as Defense

handle is hein.journals/umkc33 and id is 162 raw text is: UMKC LAW REVIEW Statutory Rape-Mistake of Fact as Defense In People v. Hernandez,1 the California Supreme Court held, in reversing a judgment of conviction for statutory rape, that the defendant's reasonable belief that the prosecutrix had reached the age of consent could, when fully developed, con- stitute a valid defense.2 By overruling a long established prec- edent, People v. Ratz,3 California became the first state to al- low a reasonable mistake of fact as to the prosecutrix's age ad- missible as a complete defense to a statutory rape charge. Section 261 of the California Penal Code defines rape in part as follows: Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances: 1. Where the female is under the age of eighteen years;4 The statute does not specify whether the act of intercourse with a female under eighteen constitutes the complete offense or whether the mental element of intent must also be present. The California court in the principal case held that intent is a necessary element and because the defendant reasonably be- lieved that the prosecutrix was above the age of consent, he did not have the requisite intent to constitute the statutory offense.5 In construing the statute before it, the California court re- lied on the common law theory of the nature of a crime. At common law to be guilty of a crime there must have been a concurrence of a criminal act and criminal intent. This crimi- nal intent was referred to as mens rea or the guilty mind and without mens rea there could be no crime.6 When statutory offenses were added to the common law the general require- ment of joint operation of intent and act was continued. Con- troversy began when statutes were enacted which did not spe- cify the requisite intent to constitute the statutory crime. There are at least three different methods of interpreting these statutes: 139 Cal. Rptr. 361 (1964). 2 Ibid. 8 115 Cal. 132, 46 P. 915 (1896). 4 CALIF. PEN. CODE See. 261 (1955). 5 People v. Hernandez, supra note 1 at 365. 627 L.R.A. (N.S.) 1098 (1910). 158

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