An ‘Honest Belief’ Defence to A Charge of Statutory Rape: Justice Rehnquist and His Unlikely Allies

It is probably not a group that Chief Justice Rehnquist could ever have imagined himself belonging to: Chief Justice Beverley McLachlin of the Canadian Supreme Court, Baroness Hale of the United Kingdom Supreme Court, and the European Court of Human Rights (ECtHR).

Looking at the list, it is hard to think of any common ground that America’s last Chief Justice could have shared with his fellow members. While Baroness Hale and Justice McLachlin have both fought tirelessly for gender equality, Chief Justice Rehnquist struck down the civil damages portion of the Violence Against Women Act and once asked Justice Ruth Bader Ginsburg whether she would “settle for putting Susan B. Anthony on the new dollar” in place of equal jury duty rights. While the ECtHR has introduced and enshrined the principle of equal rights for LGBT persons, Justice Rehnquist dissented from the Supreme Court’s landmark ruling in Lawrence v. Texas.

So what is it that binds this unlikely crew together?

The answer is partly found in constitutional law and partly in the decision of whether and how to prosecute specific crimes. Each one of these justices, and the ECtHR, has written an opinion upholding the imposition of strict criminal liability for statutory rape, even where the victim misleads the defendant as to his or her age and consents to the intercourse. Neither Justice Rehnquist nor his more liberal comrades believe that the right to a fair trial requires an ‘honest belief’ defense in such cases.

The reasoning which the justices have employed to uphold strict liability unsurprisingly varies. Indeed, it is not clear that either Justice McLachlin or Baroness Hale would consider Justice Rehnquist’s decision as furthering the gender equality movement in which they have invested so much energy.

The purpose of this post however is not to analyse the rationale of each justice, but rather to give one simple example of how very different jurists can come to the same conclusion for very different reasons.

In Michael M. v. Superior Court of Sonoma County, Justice Rehnquist upheld a California law which made it a strict liability offence for a male individual to have sexual intercourse with a female who was under the age of eighteen years. This was so even where the male had an honest and reasonable belief that the female had attained the age of majority. Justice Rehnquist justified his ruling on the basis that States have a legitimate interest in preventing teenage pregnancies (however, as the dissenters note, the decision also seems to imply that young women, unlike young men, do not have the capability of consenting to the act of sexual intercourse).

In the cases of  R. v. Hess and R. v. Nguyen, Justice McLachlin invoked a more utilitarian justification for her decision to uphold strict liability. She stated that such laws remove all possibility for men to blame external factors when they have sex with underage females,which thus encourages men to engage in intercourse only after they are sure of their partner’s actual age. She concludes that “although one may postulate the case of a morally blameless person being convicted…one must also remember that all that a person need do to avoid the risk of this happening is to refrain from having sex with girls of less than adult age unless he knows for certain that they are over fourteen.”

Finally, Baroness Hale , who’s judgment the ECtHR has recently approved, seems to take a path which is somewhere in between Justice Rehnquist and Justice McLachlin (but admittedly closer to the reasoning and sentiment of the latter). She spoke of the need to protect the vulnerability of young people because of their age: “The state would have been open to criticism if it did not provide her [the victim] with adequate protection. This it attempts to do by a clear rule that children under 13 are incapable of giving any sort of consent to sexual activity and treating penile penetration as a most serious form of such activity. This does not in my view amount to a lack of respect for the private life of the penetrating male.” Thus despite ideological diversity, each of the three Justices was able to reach the same conclusion that strict liability is appropriate in cases of statutory rape.