Michael R. Braudes, Asst. Public Defender (Stephen E. Harris, Public Defender) both on brief, Baltimore, for appellant.

Ann N. Bosse, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen.), both on brief, Baltimore, for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.

MURPHY, Chief Judge.

Maryland's "statutory rape" law prohibiting sexual intercourse with an underage person is codified in Maryland Code (1957, 1992 Repl.Vol.) Art. 27, § 463, which reads in full:

"Second degree rape.

(a) What constitutes. — A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person:

(1) By force or threat of force against the will and without the consent of the other person; or

(2) Who is mentally defective, mentally incapacitated, or physically helpless, and the person performing the act knows or should reasonably know the other person is mentally defective, mentally incapacitated, or physically helpless; or

(3) Who is under 14 years of age and the person performing the act is at least four years older than the victim.

(b) Penalty. — Any person violating the provisions of this section is guilty of a felony and upon conviction is subject to imprisonment for a period of not more than 20 years."

Subsection (a)(3) represents the current version of a statutory provision dating back to the first comprehensive codification of the criminal law by the Legislature in 1809.^[1] Now we consider whether under the present statute, the State must prove that a defendant knew the complaining witness was younger than 14 and, in a related question, whether it was error at trial to exclude evidence that he had been told, and believed, that she was 16 years old.

I

Raymond Lennard Garnett is a young retarded man. At the time of the incident in question he was 20 years old. He has an I.Q. of 52. His guidance counselor from the Montgomery County public school system, Cynthia Parker, described him as a mildly retarded person who read on the third-grade level, did arithmetic on the 5th-grade level, and interacted with others socially at school at the level of someone 11 or 12 years of age. Ms. Parker added that Raymond attended special education classes and for at least one period of time was educated at home when he was afraid to return to school due to his classmates' taunting. Because he could not understand the duties of the jobs given him, he failed to complete vocational assignments; he sometimes lost his way to work. As Raymond was unable to pass any of the State's functional tests required for graduation, he received only a certificate of attendance rather than a high-school diploma.

In November or December 1990, a friend introduced Raymond to Erica Frazier, then aged 13; the two subsequently talked occasionally by telephone. On February 28, 1991, Raymond, apparently wishing to call for a ride home, approached the girl's house at about nine o'clock in the evening. Erica opened her bedroom window, through which Raymond entered; he testified that "she just told me to get a ladder and climb up her window." The two talked, and later engaged in sexual intercourse. Raymond left at about 4:30 a.m. the following morning. On November 19, 1991, Erica gave birth to a baby, of which Raymond is the biological father.

Raymond was tried before the Circuit Court for Montgomery County (Miller, J.) on one count of second degree rape under § 463(a)(3) proscribing sexual intercourse between a person under 14 and another at least four years older than the complainant. At trial, the defense twice proffered evidence to the effect that Erica herself and her friends had previously told Raymond that she was 16 years old, and that he had acted with that belief. The trial court excluded such evidence as immaterial, explaining:

"Under 463, the only two requirements as relate to this case are that there was vaginal intercourse, [and] that ... Ms. Frazier was under 14 years of age and that ... Mr. Garnett was at least four years older than she.

"In the Court's opinion, consent is no defense to this charge. The victim's representation as to her age and the defendant's belief, if it existed, that she was not under age, what amounts to what otherwise might be termed a good faith defense, is in fact no defense to what amount[s] to statutory rape.

"It is in the Court's opinion a strict liability offense."

The court found Raymond guilty. It sentenced him to a term of five years in prison, suspended the sentence and imposed five years of probation, and ordered that he pay restitution to Erica and the Frazier family. Raymond noted an appeal; we granted certiorari prior to intermediate appellate review by the Court of Special Appeals to consider the important issue presented in the case, 329 Md. 601, 620 A.2d 940.

II

In 1975 the Legislative Council of the General Assembly established the Special Committee on Rape and Related Offenses, which proposed a complete revision of Maryland law pertaining to rape and other sex crimes. See generally J. William Pitcher, Rape and Other Sexual Offense Law Reform in Maryland 1976-1977, 7 U.Balt.L.Rev. 151 (1977). Based on the Committee's work, Senate Bill 358 was introduced, amended, and enacted on May 17, 1976, as ch. 573 of the Acts of 1976. In part, it repealed the common law crime of rape, the former statutory prohibition of carnal knowledge of underage girls, and other related crimes and replaced them with the current array of criminal laws delineating two degrees of rape and four degrees of sexual offenses. See the 1976 Report of the Senate Judicial Proceedings Committee on S.B. 358, at 1-5 and Code, Art. 27, §§ 462-464C; see also Richard P. Gilbert & Charles E. Moylan, Jr., Maryland Criminal Law: Practice and Procedure 65-66, 68-81 (1983).

The new legislation reformulated the former statutory rape law by introducing the element of a four-year age difference between the accused and the underage complainant. Report of the Senate Judicial Proceedings Committee, at 2. As originally enacted by ch. 573 of the Acts of 1976, sexual intercourse with a person under 14 by an actor more than four years older was classified as rape in the first degree, and carried a maximum penalty of life imprisonment. The Legislature, by ch. 292 of the Acts of 1977, reduced the crime to rape in the second degree carrying a maximum sentence of 20 years in prison. These reforms of 1976 and 1977 created the law now embodied in § 463(a)(3).

Section 463(a)(3) does not expressly set forth a requirement that the accused have acted with a criminal state of mind, or mens rea. The State insists that the statute, by design, defines a strict liability offense, and that its essential elements were met in the instant case when Raymond, age 20, engaged in vaginal intercourse with Erica, a girl under 14 and more than 4 years his junior. Raymond replies that the criminal law exists to assess and punish morally culpable behavior. He says such culpability was absent here. He asks us either to engraft onto subsection (a)(3) an implicit mens rea requirement, or to recognize an affirmative defense of reasonable mistake as to the complainant's age. Raymond argues that it is unjust, under the circumstances of this case which led him to think his conduct lawful, to brand him a felon and rapist.

III

Raymond asserts that the events of this case were inconsistent with the criminal sexual exploitation of a minor by an adult. As earlier observed, Raymond entered Erica's bedroom at the girl's invitation; she directed him to use a ladder to reach her window. They engaged voluntarily in sexual intercourse. They remained together in the room for more than seven hours before Raymond departed at dawn. With an I.Q. of 52, Raymond functioned at approximately the same level as the 13-year-old Erica; he was mentally an adolescent in an adult's body. Arguably, had Raymond's chronological age, 20, matched his socio-intellectual age, about 12, he and Erica would have fallen well within the four-year age difference obviating a violation of the statute, and Raymond would not have been charged with any crime at all.

The precise legal issue here rests on Raymond's unsuccessful efforts to introduce into evidence testimony that Erica and her friends had told him she was 16 years old, the age of consent to sexual relations, and that he believed them. Thus the trial court did not permit him to raise a defense of reasonable mistake of Erica's age, by which defense Raymond would have asserted that he acted innocently without a criminal design. At common law, a crime occurred only upon the concurrence of an individual's act and his guilty state of mind. Dawkins v. State, 313 Md. 638, 643, 547 A.2d 1041 (1988). In this regard, it is well understood that generally there are two components of every crime, the actus reus or guilty act and the mens rea or the guilty mind or mental state accompanying a forbidden act. The requirement that an accused have acted with a culpable mental state is an axiom of criminal jurisprudence. Writing for the United States Supreme Court, Justice Robert Jackson observed:

"The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.

* * * * * *

"Crime as a compound concept, generally constituted only from a concurrence of an evil-meaning mind with an evil-doing hand, was congenial to an intense individualism and took deep and early root in American soil."

Morissette v. United States, 342 U.S. 246, 250-252, 72 S.Ct. 240, 243-244, 96 L.Ed. 288 (1952).

To be sure, legislative bodies since the mid-19th century have created strict liability criminal offenses requiring no mens rea. Almost all such statutes responded to the demands of public health and welfare arising from the complexities of society after the Industrial Revolution. Typically misdemeanors involving only fines or other light penalties, these strict liability laws regulated food, milk, liquor, medicines and drugs, securities, motor vehicles and traffic, the labeling of goods for sale, and the like. See Dawkins, supra, 313 Md. at 644-645, 547 A.2d 1041; see generally Francis Bowes Sayre, Public Welfare Offenses, 33 Colum.L.Rev. 55 (1933); Richard G. Singer, The Resurgence of Mens Rea: III — The Rise and Fall of Strict Criminal Liability, 30 B.C.L.Rev. 337, 340-373 (1989) (suggesting, however, that strict liability doctrine in the United States in the late 19th century was motivated largely by moralistic fervor, such as found in the prohibitionist movement); Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law 242-243 (2d ed. 1986); 1 Wharton's Criminal Law 100-111 (Charles E. Torcia ed., 14th ed. 1978). Statutory rape, carrying the stigma of felony as well as a potential sentence of 20 years in prison, contrasts markedly with the other strict liability regulatory offenses and their light penalties.

Modern scholars generally reject the concept of strict criminal liability. Professors LaFave and Scott summarize the consensus that punishing conduct without reference to the actor's state of mind fails to reach the desired end and is unjust:

"`It is inefficacious because conduct unaccompanied by an awareness of the factors making it criminal does not mark the actor as one who needs to be subjected to punishment in order to deter him or others from behaving similarly in the future, nor does it single him out as a socially dangerous individual who needs to be incapacitated or reformed. It is unjust because the actor is subjected to the stigma of a criminal conviction without being morally blameworthy. Consequently, on either a preventive or retributive theory of criminal punishment, the criminal sanction is inappropriate in the absence of mens rea.'"

LaFave & Scott, supra, at 248, quoting Herbert L. Packer, Mens Rea and the Supreme Court, 1962 Sup.Ct.Rev. 107, 109.

Dean Singer has articulated other weaknesses of strict criminal liability theory: 1) extensive government civil regulations and strict liability in tort achieve the same deterrent effect; 2) the judicial efficiency of dispatching minor offenses without an inquiry into mens rea is attained equally by decriminalizing them, and hearing such cases in a regulatory or administrative forum; 3) the small penalties imposed for most strict liability offenses oblige the public to engage in a pernicious game of distinguishing "real" crime from some lesser form of crime; 4) some strict liability laws may result from careless drafting; and 5) strict liability dilutes the moral force that the criminal law has historically carried. Singer, supra, at 389-397, 403-404. The author concludes that "the predicate for all criminal liability is blameworthiness; it is the social stigma which a finding of guilt carries that distinguishes the criminal [penalty] from all other sanctions. If the predicate is removed, the criminal law is set adrift." Id. at 404-405.

Conscious of the disfavor in which strict criminal liability resides, the Model Penal Code states generally as a minimum requirement of culpability that a person is not guilty of a criminal offense unless he acts purposely, knowingly, recklessly, or negligently, i.e., with some degree of mens rea. Model Penal Code § 2.02 (Official Draft and Revised Comments 1980). The Code allows generally for a defense of ignorance or mistake of fact negating mens rea. Id. at § 2.04. The Model Penal Code generally recognizes strict liability for offenses deemed "violations," defined as wrongs subject only to a fine, forfeiture, or other civil penalty upon conviction, and not giving rise to any legal disability. Id. at §§ 1.04, 2.05.^[2]

The commentators similarly disapprove of statutory rape as a strict liability crime. In addition to the arguments discussed above, they observe that statutory rape prosecutions often proceed even when the defendant's judgment as to the age of the complainant is warranted by her appearance, her sexual sophistication, her verbal misrepresentations, and the defendant's careful attempts to ascertain her true age. See Larry W. Myers, Reasonable Mistake of Age: A Needed Defense to Statutory Rape, 64 Mich.L.Rev. 105, 106 (1965). Voluntary intercourse with a sexually mature teen-ager lacks the features of psychic abnormality, exploitation, or physical danger that accompanies such conduct with children. Id. at 119-122.^[3] See also Richard A. Tonry, Comment, Statutory Rape: A Critique, 26 La.L.Rev. 105 (1965); Michael McGillicuddy, Note, Criminal Law: Mistake of Age as Defense to Statutory Rape, 18 U.Fla.L.Rev. 699 (1966); Dennis L. Pieragostini, Note, Reasonable Mistake as to Age — a Defense to Statutory Rape under the New Penal Code, 2 Conn.L.Rev. 433 (1969) (statute since superseded); Kelly Vance, Note, State v. Elton: The Failure to Recognize a Defense to Statutory Rape, 1983 Utah L.Rev. 437 (case subsequently reversed upon reconsideration); Benjamin L. Reiss, Note, Alaska's Mens Rea Requirements for Statutory Rape, 9 Alaska L.Rev. 377 (1992). But see Frances Olsen, Statutory Rape: A Feminist Critique of Rights Analysis, 63 Tex.L.Rev. 387, 401-413 (1984).

Two sub-parts of the rationale underlying strict criminal liability require further analysis at this point. Statutory rape laws are often justified on the "lesser legal wrong" theory or the "moral wrong" theory; by such reasoning, the defendant acting without mens rea nonetheless deserves punishment for having committed a lesser crime, fornication, or for having violated moral teachings that prohibit sex outside of marriage. See LaFave & Scott, supra, at 410-410; Myers, supra, at 127-129. Maryland has no law against fornication. It is not a crime in this state. Moreover, the criminalization of an act, performed without a guilty mind, deemed immoral by some members of the community rests uneasily on subjective and shifting norms. "[D]etermining precisely what the `community ethic' actually is [is] not an easy task in a heterogeneous society in which our public pronouncements about morality often are not synonymous with our private conduct." LaFave & Scott, supra, at 411. The drafters of the Model Penal Code remarked:

"[T]he actor who reasonably believes that his partner is above that age [of consent] lacks culpability with respect to the factor deemed critical to liability. Punishing him anyway simply because his intended conduct would have been immoral under the facts as he supposed them to be postulates a relation between criminality and immorality that is inaccurate on both descriptive and normative grounds. The penal law does not try to enforce all aspects of community morality, and any thoroughgoing attempt to do so would extend the prospect of criminal sanctions far into the sphere of individual liberty and create a regime too demanding for all save the best among us."

Id., Comment to § 213.6, at 415. We acknowledge here 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.

IV

The legislatures of 17 states have enacted laws permitting a mistake of age defense in some form in cases of sexual offenses with underage persons. In Kentucky, the accused may prove in exculpation that he did not know the facts or conditions relevant to the complainant's age. Ky. Rev. Stat. Ann. § 510.030 (1992). In Washington, the defendant may assert that he reasonably believed the complainant to be of a certain age based on the alleged victim's own declarations. Wash. Rev. Code Ann. § 9A.44.030 (1988, 1993 Cum.Supp.) In some states, the defense is available in instances where the complainant's age rises above a statutorily prescribed level, but is not available when the complainant falls below the defining age. E.g. Pa. Cons. Stat. Ann. tit. 18, § 3102 (1983) (defining critical age at 14); W. Va.Code Ann. § 61-8B-12 (1992 Repl.Vol.) (defining critical age at 11, defense subject to a recklessness standard); Or. Rev. Stat.Ann. § 163.325 (1990 Repl.Vol.) (defining critical age at 16).^[4] In other states, the availability of the defense depends on the severity of the sex offense charged to the accused. E.g. Minn. Stat. Ann. §§ 609.344-609.345 (1987, 1993 Cum.Supp.) (defense available for certain charges under third-degree and fourth-degree criminal sexual conduct).^[5]

In addition, the highest appellate courts of four states have determined that statutory rape laws by implication required an element of mens rea as to the complainant's age. In the landmark case of People v. Hernandez, 61 Cal.2d 529, 39 Cal. Rptr. 361, 393 P.2d 673 (1964), the California Supreme Court held that, absent a legislative directive to the contrary, a charge of statutory rape was defensible wherein a criminal intent was lacking; it reversed the trial court's refusal to permit the defendant to present evidence of his good faith, reasonable belief that the complaining witness had reached the age of consent. In so doing, the court first questioned the assumption that age alone confers a sophistication sufficient to create legitimate consent to sexual relations: "the sexually experienced 15-year-old may be far more acutely aware of the implications of sexual intercourse than her sheltered cousin who is beyond the age of consent." Id., 39 Cal. Rptr. at 362, 393 P.2d at 674. The court then rejected the traditional view that those who engage in sex with young persons do so at their peril, assuming the risk that their partners are underage:

"[I]f [the perpetrator] participates in a mutual act of sexual intercourse, believing his partner to be beyond the age of consent, with reasonable grounds for such belief, where is his criminal intent? In such circumstances he has not consciously taken any risk. Instead he has subjectively eliminated the risk by satisfying himself on reasonable evidence that the crime cannot be committed. If it occurs that he has been mislead, we cannot realistically conclude for such reason alone the intent with which he undertook the act suddenly becomes more heinous.... [T]he courts have uniformly failed to satisfactorily explain the nature of the criminal intent present in the mind of one who in good faith believes he has obtained a lawful consent before engaging in the prohibited act."

Id., 39 Cal. Rptr. at 364, 393 P.2d at 676.

The Supreme Court of Alaska has held that a charge of statutory rape is legally unsupportable unless a defense of reasonable mistake of age is allowed. State v. Guest, 583 P.2d 836, 838-839 (Alaska 1978). The Supreme Court of Utah construed the applicable unlawful sexual intercourse statute to mean that a conviction could not result unless the state proved a criminal state of mind as to each element of the offense, including the victim's age. State v. Elton, 680 P.2d 727, 729 (Utah 1984) (Utah Criminal Code since amended to disallow mistake of age as a defense to unlawful sexual intercourse).^[6] The Supreme Court of New Mexico determined that a defendant should have been permitted at trial to present a defense that his partner in consensual sex told him she was 17, not 15, that this had been confirmed to him by others, and that he had acted under that mistaken belief. Perez v. State, 111 N.M. 160, 803 P.2d 249, 250-251 (1990). Two-fifths of the states, therefore, now recognize the defense in cases of statutory sexual offenses.

V

We think it sufficiently clear, however, that Maryland's second degree rape statute defines a strict liability offense that does not require the State to prove mens rea; it makes no allowance for a mistake-of-age defense. The plain language of § 463, viewed in its entirety, and the legislative history of its creation lead to this conclusion.

It is well settled that in interpreting a statute to ascertain and effectuate its goal, our first recourse is to the words of the statute, giving them their ordinary and natural import. Fairbanks v. McCarter, 330 Md. 39, 46, 622 A.2d 121 (1993); NCR Corp. v. Comptroller, 313 Md. 118, 124, 544 A.2d 764 (1988). While penal statutes are to be strictly construed in favor of the defendant, the construction must ultimately depend upon discerning the intention of the Legislature when it drafted and enacted the law in question. State v. Kennedy, 320 Md. 749, 754-755, 580 A.2d 193 (1990); Davis v. State, 319 Md. 56, 60-61, 570 A.2d 855 (1990). To that end, the Court may appropriately look at the larger context, including external manifestations of the legislative purpose, within which statutory language appears. Fairbanks v. McCarter, supra, 330 Md. at 46, 622 A.2d 121; Dickerson v. State, 324 Md. 163, 170-171, 596 A.2d 648 (1991); Morris v. Prince George's County, 319 Md. 597, 603-604, 573 A.2d 1346 (1990).

Section 463(a)(3) prohibiting sexual intercourse with underage persons makes no reference to the actor's knowledge, belief, or other state of mind. As we see it, this silence as to mens rea results from legislative design. First, subsection (a)(3) stands in stark contrast to the provision immediately before it, subsection (a)(2) prohibiting vaginal intercourse with incapacitated or helpless persons. In subsection (a)(2), the Legislature expressly provided as an element of the offense that "the person performing the act knows or should reasonably know the other person is mentally defective, mentally incapacitated, or physically helpless." Code, § 463(a)(2) (emphasis added). In drafting this subsection, the Legislature showed itself perfectly capable of recognizing and allowing for a defense that obviates criminal intent; if the defendant objectively did not understand that the sex partner was impaired, there is no crime. That it chose not to include similar language in subsection (a)(3) indicates that the Legislature aimed to make statutory rape with underage persons a more severe prohibition based on strict criminal liability. See McAlear v. McAlear, 298 Md. 320, 343-344, 469 A.2d 1256 (1984) (a court must read the language of a statute in relation to all of its provisions in determining legislative intent); Pennsylvania Nat'l Mut. v. Gartelman, 288 Md. 151, 159, 416 A.2d 734 (1980) (same).

Second, an examination of the drafting history of § 463 during the 1976 revision of Maryland's sexual offense laws reveals that the statute was viewed as one of strict liability from its inception and throughout the amendment process. As originally proposed, Senate Bill 358 defined as a sexual offense in the first degree a sex act committed with a person less than 14 years old by an actor four or more years older. See the 1976 Report of the Senate Judicial Proceedings Committee on S.B. 358, at 1-2. The Senate Judicial Proceedings Committee then offered a series of amendments to the bill. Among them, Amendment # 13 reduced the stipulated age of the victim from less than 14 to 12 or less. 1976 Senate Journal, at 1363. Amendment # 16 then added a provision defining a sexual offense in the second degree as a sex act with another "under 14 years of age, which age the person performing the sexual act knows or should know." 1976 Senate Journal, at 1364. These initial amendments suggest that, at the very earliest stages of the bill's life, the Legislature distinguished between some form of strict criminal liability, applicable to offenses where the victim was age 12 or under, and a lesser offense with a mens rea requirement when the victim was between the ages of 12 and 14.

Senate Bill 358 in its amended form was passed by the Senate on March 11, 1976. 1976 Senate Journal, at 1566. The House of Delegates' Judiciary Committee, however, then proposed changes of its own. It rejected the Senate amendments, and defined an offense of rape, without a mens rea requirement, for sexual acts performed with someone under the age of 14. See 1976 House Journal, at 3686.^[7] The Senate concurred in the House amendments and S.B. 358 became law. 1976 House Journal, at 3761; 1976 Senate Journal, at 3429; 1976 Acts of Maryland, at 1536. Thus the Legislature explicitly raised, considered, and then explicitly jettisoned any notion of a mens rea element with respect to the complainant's age in enacting the law that formed the basis of current § 463(a)(3). In the light of such legislative action, we must inevitably conclude that the current law imposes strict liability on its violators.

This interpretation is consistent with the traditional view of statutory rape as a strict liability crime designed to protect young persons from the dangers of sexual exploitation by adults, loss of chastity, physical injury, and, in the case of girls, pregnancy. See Michael M. v. Sonoma County Superior Court, 450 U.S. 464, 470, 101 S.Ct. 1200, 1204-05, 67 L.Ed.2d 437 (1981); Rita Eidson, Note, The Constitutionality of Statutory Rape Laws, 27 UCLA L.Rev. 757, 760-761 (1980). The majority of states retain statutes which impose strict liability for sexual acts with underage complainants. We observe again, as earlier, that even among those states providing for a mistake-of-age defense in some instances, the defense often is not available where the sex partner is 14 years old or less; the complaining witness in the instant case was only 13. The majority of appellate courts, including the Court of Special Appeals, have held statutory rape to be a strict liability crime. Eggleston v. State, 4 Md. App. 124, 241 A.2d 433 (1968); see the compilation in W.E. Shipley, Annotation, Mistake or Lack of Information as to Victim's Age as Defense to Statutory Rape, 8 A.L.R.3d 1100 (1966, 1992 Supp.).

VI

Maryland's second degree rape statute is by nature a creature of legislation. Any new provision introducing an element of mens rea, or permitting a defense of reasonable mistake of age, with respect to the offense of sexual intercourse with a person less than 14, should properly result from an act of the Legislature itself, rather than judicial fiat. Until then, defendants in extraordinary cases, like Raymond, will rely upon the tempering discretion of the trial court at sentencing.

JUDGMENT AFFIRMED, WITH COSTS.

ELDRIDGE, Judge, dissenting:

Both the majority opinion and Judge Bell's dissenting opinion view the question in this case to be whether, on the one hand, Maryland Code (1957, 1992 Repl.Vol.), Art. 27, § 463(a)(3), is entirely a strict liability statute without any mens rea requirement or, on the other hand, contains the requirement that the defendant knew that the person with whom he or she was having sexual relations was under 14 years of age.

The majority takes the position that the statute defines an entirely strict liability offense and has no mens rea requirement whatsoever. The majority indicates that the defendant's "knowledge, belief, or other state of mind" is wholly immaterial. The majority opinion at one point states: "We acknowledge here 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." Nevertheless, according to the majority, it was permissible for the trial judge to have precluded exploration into Raymond's knowledge and comprehension because the offense is entirely one of strict liability.

Judge Bell's dissent, however, argues that, under the due process clauses of the Fourteenth Amendment and the Maryland Declaration of Rights, any "defendant may defend on the basis that he was mistaken as to the age of the prosecutrix."

In my view, the issue concerning a mens rea requirement in § 463(a)(3) is not limited to a choice between one of the extremes set forth in the majority's and Judge Bell's opinions. I agree with the majority that an ordinary defendant's mistake about the age of his or her sexual partner is not a defense to a prosecution under § 463(a)(3). Furthermore I am not persuaded, at least at the present time, that either the federal or state constitutions require that a defendant's honest belief that the other person was above the age of consent be a defense.^[1] This does not mean, however, that the statute contains no mens rea requirement at all.

The legislative history of § 463(a)(3), set forth in the majority opinion, demonstrates that the House of Delegates rejected the Senate's proposed requirement that an older person, having sexual relations with another under 14 years of age, know or should know that the other person was under 14. The House of Delegates' version was ultimately adopted. From this, the majority concludes that the enacted version was "without a mens rea requirement." The majority's conclusion does not necessarily follow. Although the General Assembly rejected one specific knowledge requirement, it did not decree that any and all evidence concerning a defendant's knowledge and comprehension was immaterial.

There are pure strict liability offenses where "the purpose of the penalty is to regulate rather than to punish behavior" and where criminal "liability is imposed regardless of the defendant's state of mind," Dawkins v. State, 313 Md. 638, 645, 547 A.2d 1041 (1988). These "offenses commonly involve light fines or penalties," Dawkins, 313 Md. at 644, 547 A.2d at 1044. There are other offenses (also unfortunately often called "strict liability" offenses) where the legislature has dispensed with a knowledge requirement in one respect but has not intended to impose criminal liability regardless of the defendant's state of mind.^[2] Such offenses

"do require `fault' ..., in that they `can be interpreted as legislative judgments that persons who intentionally engage in certain activities and occupy some peculiar or distinctive position of control are to be held accountable for the occurrence of certain consequences.'"

W. LaFave & A. Scott, Jr., Substantive Criminal Law, ch. 3, § 3.8(c), at 349 (1986), quoting Wasserstrom, Strict Criminal Liability, 12 Stan.L.Rev. 731, 743 (1960). See also P. Robinson, Criminal Law Defenses, ch. 3, § 108(b), at 535 (1984) ("If reasonable mistake as to the victim's age is disallowed ... [t]here is, . . strict liability with respect to that element") (emphasis added).

Neither the statutory language nor the legislative history of § 463(a)(3), or of the other provisions of the 1976 and 1977 sexual offense statutes, indicate that the General Assembly intended § 463(a)(3) to define a pure strict liability offense where criminal liability is imposed regardless of the defendant's mental state. The penalty provision for a violation of § 463(a)(3), namely making the offense a felony punishable by a maximum of 20 years imprisonment (§ 463(b)), is strong evidence that the General Assembly did not intend to create a pure strict liability offense.

In the typical situation involving an older person's engaging in consensual sexual activities with a teenager below the age of consent, and the scenario which the General Assembly likely contemplated when it enacted §§ 463(a)(3), 464A(a)(3), 464B(a)(3), 464C(a)(2), and 464C(a)(3), the defendant knows and intends that he or she is engaging in sexual activity with a young person. In addition, the defendant knows that the activity is regarded as immoral and/or improper by large segments of society. Moreover, the defendant is aware that "consent" by persons who are too young is ineffective. Although in a particular case the defendant may honestly but mistakenly believe, because of representations or appearances, that the other person is above the age of consent, the ordinary defendant in such case is or ought to be aware that there is a risk that the young person is not above the age of consent. As the majority opinion points out, "the traditional view [is] that those who engage in sex with young persons do so at their peril, assuming the risk that their partners are underage...." It seems to me that the above-mentioned knowledge factors, and particularly the mental ability to appreciate that one is taking a risk, constitute the mens rea of the offenses defined by §§ 463(a)(3), 464A(a)(3), 464B(a)(3), 464C(a)(2) and 464C(a)(3). In enacting these provisions, the General Assembly assumed that a defendant is able to appreciate the risk involved by intentionally and knowingly engaging in sexual activities with a young person. There is no indication that the General Assembly intended that criminal liability attach to one who, because of his or her mental impairment, was unable to appreciate that risk.

It is unreasonable to assume that the Legislature intended for one to be convicted under § 463(a)(3), or under any of the other statutes proscribing sexual activity with underage persons, regardless of his or her mental state. Suppose, for example, that Raymond Garnett had not had an I.Q. of 52, but rather, had been more severely mentally retarded as was the young woman involved in Wentzel v. Montgomery Gen. Hosp., 293 Md. 685, 447 A.2d 1244, cert. denied, 459 U.S. 1147, 103 S.Ct. 790, 74 L.Ed.2d 995 (1983). The mentally retarded person in Wentzel had an I.Q. of 25-30, was physiologically capable of bearing a child, but was unable to comprehend the act of sexual intercourse, or even to understand the difference between the sexes. If someone so disabled, having reached Raymond's chronological age, then had "consensual" sexual intercourse with a person younger than fourteen years of age, I do not believe that he or she would have violated Art. 27, § 463(a)(3). Under the view that §§ 463(a)(3), 464A(a)(3), 464B(a)(3), etc., define pure strict liability offenses without any regard for the defendant's mental state, presumably a 20 year old, who passes out because of drinking too many alcoholic beverages, would be guilty of a sexual offense if a 13 year old engages in various sexual activities with the 20 year old while the latter is unconscious. I cannot imagine that the General Assembly intended any such result.

An impaired mental condition may show the absence of mens rea, depending upon the circumstances. See, e.g., Simmons v. State, 313 Md. 33, 39 n. 3, 542 A.2d 1258, 1261 n. 3 (1988); Hoey v. State, 311 Md. 473, 494-495, 536 A.2d 622 (1988). In light of the defendant Garnett's mental retardation, and its effect upon his knowledge and comprehension, he may or may not have had the requisite mens rea. As previously mentioned, the majority opinion itself acknowledges that it is uncertain to what extent Raymond's intellectual and social retardation may have impaired his ability to comprehend standards of sexual morality. The problem in this case is that the trial judge's view of the statute, which the majority adopts, precluded an exploration into the matter.

The majority points out that the trial court would not allow testimony that Erica and her friends had told the defendant that she was 16 years old. The trial court, however, went further. The court would not allow the defendant to testify concerning his knowledge. More importantly, the trial judge took the position that the offense proscribed by § 463(a)(3) is "a strict liability offense" and that the only requirements for conviction were that "the defendant had sexual intercourse with Erica Frazier, that at that time she was 13 years of age, [and] at that time the defendant was more than 4 years older than she. These are the only requirements that the State need prove beyond a reasonable doubt." The trial court's position that the offense lacked any mens rea requirement, and that the defendant's mental state was wholly immaterial, was, in my view, erroneous.

I would reverse and remand for a new trial.

ROBERT M. BELL, Judge, dissenting.

"It may be possible to conceive of legislation ... so flagrantly in conflict with natural right, that the courts may set it aside as unwarranted, though no clause of the constitution can be found prohibiting it. But the cases must be rare indeed; and whenever they do occur the interposition of the judicial veto will rest upon such foundations of necessity that there can be little or no room for hesitation."

Richard G. Singer, The Resurgence of Mens Rea: III — The Rise and Fall of Strict Criminal Liability, 30 B.C.L.Rev. 337, 368 (1989), quoting State v. Clottu, 33 Ind. 409, 410-11 (1870).

I do not dispute that the legislative history of Maryland Code (1957, 1992 Repl.Vol.), Art. 27, section 463 may be read to support the majority's interpretation that subsection (a)(3)^[1] was intended to be a strict liability statute. See majority opinion at 585. Nor do I disagree that it is in the public interest to protect the sexually naive child from the adverse physical, emotional, or psychological effects of sexual relations. I do not believe, however, that the General Assembly, in every case, whatever the nature of the crime and no matter how harsh the potential penalty, can subject a defendant to strict criminal liability. To hold, as a matter of law, that section 463(a)(3)^[2] does not require the State to prove that a defendant possessed the necessary mental state to commit the crime, i.e. knowingly engaged in sexual relations with a female under 14, or that the defendant may not litigate that issue in defense, "offends a principle of justice so rooted in the traditions of conscience of our people as to be ranked as fundamental" and is, therefore, inconsistent with due process. See United States v. Ransom, 942 F.2d 775, 776-77 (10th Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 897, 116 L.Ed.2d 799 (1992), quoting Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674, 677 (1934).

In the case sub judice, according to the defendant, he intended to have sex with a 16, not a 13, year old girl. This mistake of fact was prompted, he said, by the prosecutrix herself; she and her friends told him that she was 16 years old. Because he was mistaken as to the prosecutrix's age, he submits, he is certainly less culpable than the person who knows that the minor is 13 years old, but nonetheless engages in sexual relations with her. Notwithstanding, the majority has construed section 463(a)(3) to exclude any proof of knowledge or intent. But for that construction, the proffered defense would be viable. I would hold that the State is not relieved of its burden to prove the defendant's intent or knowledge in a statutory rape case and, therefore, that the defendant may defend on the basis that he was mistaken as to the age of the prosecutrix.^[3]

I. Mens Rea Generally

Generally, a culpable mental state, often referred to as mens rea, see Wharton's Criminal Law, § 27, or intent, is, and long has been, an essential element of a criminal offense. Morissette v. United States, 342 U.S. 246, 251-52, 72 S.Ct. 240, 244, 96 L.Ed. 288, 294 (1952); Tate v. State, 236 Md. 312, 203 A.2d 882 (1964); Davis v. State, 204 Md. 44, 102 A.2d 816 (1953); Webb v. State, 201 Md. 158, 93 A.2d 80 (1952); Fenwick v. State, 63 Md. 239, 240-41 (1885). A crime ordinarily consists of prohibited conduct and a culpable mental state; a wrongful act and a wrongful intent must concur to constitute what the law deems a crime, the purpose being to avoid criminal liability for innocent or inadvertent conduct. See Dawkins v. State, 313 Md. 638, 643, 547 A.2d 1041, 1043 (1988); see also Wharton's Criminal Law, § 27, citing United States v. Fox, 95 U.S. 670, 24 L.Ed. 538 (1877). Historically, therefore, unless the actor also harbored an evil, or otherwise culpable, mind, he or she was not guilty of any crime.

The Supreme Court in Morissette, recognized that ordinarily, a defendant cannot be convicted when he or she lacks the mental state which is an element of the offense charged. That concept — crime as a compound concept — gained early acceptance in the English Common law and "took deep and early root in American soil."^[4] 342 U.S. at 251-52, 72 S.Ct. at 244, 96 L.Ed. at 294 (footnote omitted). In that case, Mr. Justice Jackson stated the proposition thusly:

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child's familiar exculpatory "But I didn't mean to," and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution. Unqualified acceptance of this doctrine by English common law in the Eighteenth Century was indicated by Blackstone's sweeping statement that to constitute any crime there must first be a "vicious will."

Id. at 250-51, 72 S.Ct. at 243, 96 L.Ed. at 294 (footnotes omitted).

In Morissette, (id. at 247-48, 72 S.Ct. at 242, 96 L.Ed. at 292-93), the defendant, a scrap iron collector, went onto a government bombing range, where bomb casings were piled haphazardly. Morissette loaded the casings onto his truck in broad daylight and took them. He was indicted for "unlawfully, wilfully and knowingly steal[ing] and convert[ing]" property of the United States, in violation of 18 U.S.C. § 641, 18 U.S.C.A. § 641. He sought to defend on the basis that he thought the casings were abandoned, unwanted, and of no value to the government. The trial court refused to permit evidence on that point, which was affirmed on appeal. The Supreme Court reversed, holding that where intent is an essential element of the crime charged, its existence is a question of fact for the jury, and "the trial court may not withdraw or prejudge the issue by instruction that the law raises a presumption of intent from an act." Id. at 274, 72 S.Ct. at 255, 96 L.Ed. at 306. It was in this context that the Court discussed the importance of intent. The Court concluded:

The unanimity with which they [courts] have adhered to the central thought that wrongdoing must be conscious to be criminal is emphasized by the variety, disparity and confusion of their definitions of the requisite but elusive mental element. However, courts of various jurisdictions, and for the purposes of different offenses, have devised working formulae, if not scientific ones, for the instruction of juries around such terms as "felonious intent," "criminal intent," "malice aforethought," "guilty knowledge," "fraudulent intent," "willfulness," "scienter," to denote guilty knowledge or "mens rea," to signify an evil purpose or mental culpability.

Id. at 252, 72 S.Ct. at 244, 96 L.Ed. at 294-95.

More recently, in Anderson v. State, 328 Md. 426, 444, 614 A.2d 963, 972 (1992), we held that the trial court improperly convicted the defendant for carrying concealed, pursuant to Article 27, § 36(a), a utility knife without considering the intent with which the utility knife was being carried. Noting that the utility knife could be used both as a tool and as a weapon, id. at 437-39, 614 A.2d at 968-69, we rejected the State's argument that no intent was required. Id. at 444, 614 A.2d at 971. We said instead that, when the object is not a dangerous weapon per se, to convict a defendant of carrying a concealed dangerous weapon requires proof that the defendant intended to use the object as a weapon. Id. at 444, 614 A.2d at 971.

Although it recognized that Congress could dispense with the intent requirement if it did so specifically, the Court made clear that that power was not without limit. Morissette, 342 U.S. at 275, 72 S.Ct. at 256, 96 L.Ed. at 307, citing Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241, 1245, 87 L.Ed. 1519, 1524 (1943). Thus, when a legislature wants to eliminate intent as an element of a particular crime, it should expressly so state in the statute. See Larry W. Myers, Reasonable Mistake of Age: A Needed Defense to Statutory Rape, 64 Mich.L.Rev. 105, 118-19 (1965); see also People v. Hernandez, 61 Cal.2d 529, 536, 39 Cal. Rptr. 361, 365, 393 P.2d 673, 677 (1964) ("in the absence of a legislative direction otherwise, a charge of statutory rape is defensible wherein criminal intent is lacking."); Singer, supra, at 397. Legislative imposition of strict criminal liability, however, must be within constitutional limits; it cannot be permitted to violate the Due Process requirement of the Fourteenth Amendment, see Lambert v. California, 355 U.S. 225, 227, 78 S.Ct. 240, 242, 2 L.Ed.2d 228 (1957), or a comparable state constitutional provision. See infra.

II. Strict Liability Crimes

Strict liability crimes are recognized exceptions to the "guilty mind" rule in that they do not require the actor to possess a guilty mind, or the mens rea, to commit a crime. See Morissette, 342 U.S. at 251-52 n. 8, 72 S.Ct. at 244 n. 8, 96 L.Ed. at 294 n. 8. His or her state of mind being irrelevant, the actor is guilty of the crime at the moment that he or she does the prohibited act.

A.

In the evolution of the statutory criminal law, two classes of strict liability crimes have emerged. Richard A. Tonry, Statutory Rape: A Critique, La.L.Rev. 105 (1965). One of them consists of "public welfare" offenses. See id.; see also Dawkins, 313 Md. 638, 547 A.2d 1041. Typical of this class are statutes involving, for example, the sale of food, drugs, liquor, and traffic offenses, see Tonry, supra, at 106, designed to protect the health, safety, and welfare of the community at large; violation of such statutes "depend on no mental element but consist[s] only of forbidden acts or omissions." Morissette, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288. In the case of public welfare offenses, strict liability is justified on several bases, including: (1) only strict liability can deter profit-driven manufacturers from ignoring the well-being of the consuming public; (2) an inquiry into mens rea would exhaust the resources of the courts; (3) imposition of strict liability is not inconsistent with the moral underpinnings of the criminal law because the penalties are small and carry no stigma; and (4) the legislature is constitutionally empowered to create strict liability crimes for public welfare offenses. Singer, supra, at 389.

In Dawkins, 313 Md. at 644-645, 547 A.2d at 1044-45, this Court discussed the development of public welfare offenses and noted their characteristics:

"Public Welfare Offenses" are generally regulatory in nature. The earliest cases involved liquor and adulterated milk.... Later cases expanded the doctrine to apply to violations of traffic regulations and motor vehicle laws, sales or misbranded articles, and sales or purchases in violation of anti-narcotics laws.... These offenses commonly involve light fines or penalties. .. . "[T]he penalty in such cases is so slight that the courts can afford to disregard the individual in protecting the social interest...." Additionally, the purpose of the penalty is to regulate rather than to punish behavior.... While liability is imposed regardless of the defendant's state of mind, the defendant is generally in a position to prevent the violation from occurring....

313 Md. at 645, 547 A.2d at 1044 (citations omitted). The Supreme Court has also commented on such offenses, observing:

These cases do not fit neatly into any of such accepted classifications of common-law offenses, such as those against the state, the person, property, or public morals. Many of these offenses are not in the nature of positive aggressions or invasions, with which the common law so often dealt, but are in the nature of neglect where the law requires care, or inaction where it imposes a duty. Many violations of such regulations result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize. While such offenses do not threaten the security of the state in the manner of treason, they may be regarded as offenses against its authority, for their occurrence impairs the efficiency of controls deemed essential to the social order as presently constituted. In this respect, whatever the intent of the violator, the injury is the same, and the consequences are injurious or not according to fortuity. Hence, legislation applicable to such offenses, as a matter of policy, does not specify intent as a necessary element. The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities.

Morissette, 342 U.S. at 255-56, 72 S.Ct. at 246, 96 L.Ed. at 296. To like effect,

... public welfare offenses are new crimes, created solely by legislative enactments in the nature of police regulations. Moreover, these offenses are not strictly criminal, even though traditional criminal sanctions are relied upon, since the primary purpose of the legislature is neither punishment nor correction, but rather regulation.

Myers, supra, at 114 (footnote omitted).

Obviously, and the majority concurs, see majority opinion at 579, "statutory rape" is not merely a public welfare offense; it simply does not "fit" the characteristics of such an offense: it is a felony, not a misdemeanor. In striking contrast to "other strict liability regulatory offenses and their light penalties," majority opinion at 579, the potential penalty of 20 years imprisonment is not a light penalty; unlike the "garden variety" strict liability penalty, the penalty under section 463(a)(3), is neither so insignificant that it can be ignored as a criminal sanction, see Singer, supra, at 394, nor so slight that the fate of the defendant can be ignored, see Wayne R. LaFave and Austin W. Scott, Jr., Criminal Law, § 31, at 219 (1972) ("The greater the possible punishment, the more likely some fault is required; and conversely, the lighter the possible punishment, the more likely the legislature meant to impose liability without fault."); and section 463's primary purpose is to penalize the "rapist", not to correct his or her behavior.^[5]

B.

The second class of strict liability offenses, having a different justification than public welfare offenses, consists of narcotic,^[6] bigamy,^[7] adultery, and statutory rape crimes. See Morissette, 342 U.S. at 251 n. 8, 72 S.Ct. at 244 n. 8, 96 L.Ed. at 294 n. 8; Tonry, supra, at 106. State legislatures have historically used two theories to justify imposing strict liability in this class of offense: "lesser legal wrong" and "moral wrong." See Benjamin L. Reiss, Alaska's Mens Rea Requirements for Statutory Rape, 9 Alaska L.Rev. 377, 381-82 (1992).

The lesser legal wrong theory posits that a defendant who actually intended to do some legal or moral wrong is guilty not only of the crime intended but of a greater crime of which he or she may not have the requisite mental state. LaFave and Scott, supra, § 47, at 360. The elimination of a mens rea element for statutory rape is rationalized by focusing on the defendant's intent to commit a related crime. Reiss, supra, at 381. In other words, if fornication^[8], engaging in sexual intercourse out of wedlock, see generally Model Penal Code, § 213.6, Comment at 430-39, is a crime, a defendant intending to engage in sex out of wedlock is made to suffer all of the legal consequences of that act. Statutory rape is such a legal consequence when the other participant is below the age of consent. Reiss, supra, at 382. The theory is premised, in short, upon the proposition that, as to certain crimes, "a `guilty mind' in a very general sense, should suffice for the imposition of penal sanctions even when the defendant did not intentionally or knowingly engage in the acts proscribed in the statute." See LaFave and Scott, supra, § 47, at 361.

The seminal case in this area is Regina v. Prince, L.R. 2 Cr.Cas.Res. 154 (1875), cited in Myers, supra, at 110 and Model Penal Code, § 213.6, Comment at 414 n. 6. There, the defendant was charged with unlawfully taking a girl under the age of 16 out of the possession of the father against his will. The defendant claimed that he acted on the reasonable belief that the girl was 18. The court held that it was no defense that he thought he was committing a different kind of wrong from that which he, in fact, was committing, it being wrong to remove a daughter, even one over 16, from her father's household.

The lesser legal wrong theory does not provide a viable rationale for holding a defendant strictly liable for statutory rape where premarital sex is not criminal.^[9] Reiss, supra, at 382. See LaFave and Scott, supra, § 47, at 361 ("[W]here fornication is itself not criminal it [statutory rape] should not become criminal merely because the defendant has made a reasonable mistake about the age of the girl with whom he has intercourse").^[10] Fornication is not a crime in Maryland. See Baker v. Lease, 236 Md. 246, 248, 203 A.2d 700, 701 (1964). Accordingly, in Maryland, there is no underlying offense from which to transfer intent. Moreover,

[a] man who engages in consensual intercourse in the reasonable belief that his partner has reached [the age of consent^[11]] evidences no abnormality, no willingness to take advantage of immaturity, no propensity to corruption of minors. In short, he has demonstrated neither intent nor inclination to violate any of the interests that the law of statutory rape seeks to protect. At most, he has disregarded religious precept or social convention. In terms of mental culpability, his conduct is indistinguishable from that of any other person who engages in fornication. Whether he should be punished at all depends on a judgment about continuing fornication as a criminal offense, but at least he should not be subject to felony sanctions for statutory rape.

Model Penal Code § 213.6, Comment at 415.

C.

In utilizing the moral wrong theory, State legislatures seek to justify strict criminal liability for statutory rape when non-marital sexual intercourse is not a crime on the basis of society's characterization of it as immoral or wrong, i.e., malum in se.^[12] Reiss, supra, at 382. The intent to commit such immoral acts supplies the mens rea for the related, but unintended crime; the outrage upon public decency or good morals, not conduct that is wrong only because it is prohibited by legislation, i.e., malum prohibitum, is the predicate.

There are significant problems with the moral wrong theory. First, it is questionable whether morality should be the basis for legislation or interpretation of the law. See Tonry, supra, at 113; see also Singer, supra, at 338 (moral blame should be abolished as a predicate for criminal liability). Immorality is not synonymous with illegality; intent to do an immoral act does not equate to intent to do a criminal act. Inferring criminal intent from immorality, especially when the accused is not even aware that the act is criminal, seems unjustifiable and unfair. See Reiss, supra, at 382. In addition, the values and morals of society are ever evolving. Because sexual intercourse between consenting unmarried adults and minors who have reached the age of consent is not now clearly considered to be immoral, the moral wrong theory does not support strict criminal liability for statutory rape.

Second, classifying an act as immoral, in and of itself, divorced from any consideration of the actor's intention, is contrary to the general consensus of what makes an act moral or immoral. See Tonry, supra, at 113. Ordinarily, an act is either moral or immoral depending on the intention of the actor. Id., citing Holmes, Early Forms of Liability, in The Common Law 7 (Howe ed. 1963), citing Bradley, Ethical Studies, Essay 1 (1876) ("Even a dog distinguishes between being stumbled over and being kicked.").

Third, the assertion that the act alone will suffice for liability without the necessity of proving criminal intent is contrary to the traditional demand of the criminal law that only the act plus criminal intent is sufficient to constitute a crime. See Tonry, supra, at 113. "Moral duties should not be identified with criminal duties," and, thus, when fornication is itself not criminal it should not become criminal merely because the defendant has made a reasonable mistake about the age of the girl with whom he has had intercourse. See Hernandez, 61 Cal.2d at 534, 39 Cal. Rptr. at 364, 393 P.2d at 676; see also Myers, supra.

Therefore, although in the case sub judice, the defendant engaged in sexual relations with a girl 13 years old, a minor below the age of consent, his conduct is not malum in se, see 4 W. Blackstone, Commentaries[*] 210, and, so, strict liability is not justified.

III. Mistake of Fact

Generally, a mistake of fact negates the mental state required to establish a material element of the crime. LaFave and Scott, supra, § 47, at 356. A person who engages in proscribed conduct is relieved of criminal liability if, because of ignorance or mistake of fact, he or she did not entertain the culpable mental state required for the commission of the offense. See Wharton's Criminal Law § 76.^[13] Compare Richmond v. State, 330 Md. 223, 241-42, 623 A.2d 630, 638 (1993) (Bell, J., dissenting) (In case of self-defense, defendant who acts in self-defense is completely exonerated upon findings that he or she subjectively believed that his or her actions were necessary and, viewed objectively, that they were, in fact, necessary; in case of imperfect self-defense, defendant who subjectively believes that his or her actions were necessary, but, objectively, they were not, is not completely exonerated, although lesser sentence is appropriate).

Statutory rape is defined as sexual intercourse, by a person four or more years older, with a person under the age of 14. Maryland Code (1957, 1992 Repl.Vol.) Art. 27, § 463(a)(3).^[14] That statute conclusively presumes that a person under that age is incapable of legally consenting to sexual intercourse.^[15] Rau v. State, 133 Md. 613, 105 A. 867 (1919) (consent is not an element of assault with intent to have carnal knowledge of a female child under 14 years);^[16] Ollis v. State, 44 Ga. App. 793, 163 S.E. 309 (1932); Golden v. Commonwealth, 289 Ky. 379, 158 S.W.2d 967 (1942). That the female is incapable of consenting means that any act of intercourse in which she engages, even with her consent, is conclusively presumed to have been against her will. See Tonry, supra, at 106. Consequently, a person engaging in intercourse with a female, whom he knows to be under 14 may not set up her consent as a defense. This does not mean, however, that one who does not know that the female is under 14 should not be able to set up his mistake of fact as a defense. This is because the closer a minor is to the age of consent, the more the appearance and behavior of that minor can be expected to be consistent with persons who have attained the age of consent. Perez v. State, 111 N.M. 160, 803 P.2d 249 (1990) (strict liability inappropriate where victim in 13-16 age range); Hernandez, 61 Cal.2d at 534 n. 3, 39 Cal. Rptr. at 364 n. 3, 393 P.2d at 676 n. 3. Indeed, one may plausibly mistake a minor 13 years old as being of the statutory age of consent.

A girl 13 years old may appear to be, and, in fact, may represent herself as being, over 16. If she should appear to be the age represented, a defendant may suppose reasonably that he received a valid consent from his partner, whom he mistakenly believes to be of legal age, only to find that her consent is legally invalid. In this situation, the majority holds, his reasonable belief as to the girl's age and consequent lack of criminal intent are no defense; the act alone suffices to establish guilt. But it is when the minor plausibly may represent that she has attained the age of consent that need for a defendant to be able to present a defense based on his or her belief that the minor was of the age to consent is the greatest.

The California Supreme Court in Hernandez, 61 Cal.2d at 534 n. 3, 39 Cal. Rptr. at 364 n. 3, 393 P.2d at 676 n. 3, quoting Plascowe, Sex and the Law 184-85 (1951), has recognized mistake of age as a defense to statutory rape. There, the defendant was convicted of statutory rape pursuant to a California law setting a consent age limit of 18 years of age. The prosecutrix was 17 years and 9 months old. The court held that an offer of proof of defendant's reasonable belief that the prosecutrix had reached the age of consent was a defense to statutory rape. 61 Cal.2d at 536, 39 Cal. Rptr. at 365, 393 P.2d at 677. The court reasoned that the imposition of criminal sanctions required conduct accompanied by a specific mental state, i.e., "the joint operation of act and intent." 61 Cal.2d at 532, 39 Cal. Rptr. at 363, 393 P.2d at 675. It opined (id. 61 Cal.2d at 534 n. 3, 39 Cal. Rptr. at 364 n. 3, 393 P.2d at 676 n. 3, quoting Plascowe, Sex and the Law at 184 and 185 (1951)):

"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."

Moreover, Myers, supra, at 121, concurs that reasonable mistake of age, should be a defense to statutory rape where there is no threat of force. He explains his position thusly:

[T]here are many girls between the ages of twelve and fifteen who are so obviously immature in physique, dress, and deportment that they would be approached only by a person psychologically disturbed or coming from a subculture where the acceptable age-range is lower than the usual level in the United States. However, there are even more girls from twelve to fifteen whose appearance and behavior place them within, or on the vague border of, the average male's category of desirable females. By the middle teens, most girls are sufficiently developed physically and are sufficiently aware of social attitudes for a man to have to use considerable force or some definite threat if the girl objects to sexual contact. (Footnote omitted).

Thus, it has been observed that, "[b]y the middle teens most girls have reached a point of maturity which realistically enables them to give meaningful, although not legal, consent." Id. at 122. It is for this reason that "[i]ntercourse with a girl who is in her middle to late teens lacks the qualities of abnormality and physical danger that are present when she is still a child.... It is clear that the element of `victimization' decreases as the girl grows older and more sophisticated."^[17] Id. at 121-22. See e.g. State v. Guest, 583 P.2d 836 (Alaska 1978); State v. Elton, 680 P.2d 727 (Utah 1984); Powe v. State, 389 N.W.2d 215 (Minn.App. 1986); Perez v. State, 111 N.M. 160, 803 P.2d 249 (1990).

The Model Penal Code, long an adversary of strict liability crimes, proposes two categories of statutory rape. The first, would impose strict liability on one who has sexual relations with a child under 10. See generally Model Penal Code and Commentaries, § 213.6, Comment at 415-16.^[18] See also Del. tit. 11, § 772(a); Ohio § 2907.02(A)(3); Pa. tit. 18, § 3102; W. Va. § 61-8B-13(b). The second category would encompass minors under the critical statutory age of consent, but over 10 years old. Model Penal Code, § 213.6, Comment at 415-16. Having sexual relations with a child falling in this category would still be a crime, but a defendant could escape punishment if he or she proved that he or she was mistaken as to the child's age. Both categories are consistent with the prevailing contemporary view, and with the common law, that a child under 10 years old is too young to understand the nature and quality of his or her act, Myers, supra, at 109-10; Charles E. Torcia, Wharton's Criminal Law, § 291; 1 Blackstone Commentaries § 212, and that a child over 10 years of age ordinarily is aware of social attitudes and the nature of sexual contact. See Myers, supra, at 121; see also Hernandez, 61 Cal.2d at 534 n. 3, 39 Cal. Rptr. at 364 n. 3, 393 P.2d at 676 n. 3. Thus, the Code would allow the defendant to defend a charge of rape involving a minor falling in the second category on the basis that he or she reasonably believed the child to be above the critical age. See Model Penal Code § 213.6, Comment at 416.^[19]

In the case sub judice, the defendant does not dispute that he had sexual relations with the 13 year old prosecutrix. He seeks only to be able to defend himself against being labeled a rapist. He may only do so, however, if he is allowed to present evidence that he acted under a mistake of fact as to the prosecutrix's age, that he believed, and reasonably so, that she was above the age of consent. The proof he proposed to present to prove his defense was that the victim and her friends told him that the victim was 16 years old. He should have been allowed to show that he lacked the "guilty mind" to have sex with a 13 year old.

IV. Constitutional Limitations on Strict Criminal Liability

A State Legislature does have the power to define the elements of the criminal offenses recognized within its jurisdiction. Liparota v. United States, 471 U.S. 419, 424, 105 S.Ct. 2084, 2087, 85 L.Ed.2d 434, 439 (1985); Smith v. California, 361 U.S. 147, 150, 80 S.Ct. 215, 217, 4 L.Ed.2d 205, 209 (1959); Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 242, 2 L.Ed.2d 228, 231 (1957); McCallum v. State, 81 Md. App. 403, 413, 567 A.2d 967, 971 (1990), aff'd, 321 Md. 451, 583 A.2d 250 (1991). Cf. Singer, supra, at 389. In fact, the Supreme Court has said: "There is wide latitude in lawmakers to declare an offense and to exclude elements of knowledge and diligence from its definition." Lambert, 355 U.S. at 228, 78 S.Ct. at 242, 2 L.Ed.2d at 231. Accordingly, a State legislature may constitutionally prescribe strict liability for public welfare offenses, discussed supra, committed within its boundaries. But "far more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement." United States v. United Gypsum Company, 438 U.S. 422, 438, 98 S.Ct. 2864, 2874, 57 L.Ed.2d 854, 870 (1978) (citations omitted). See Morissette, 342 U.S. at 263, 72 S.Ct. at 250, 96 L.Ed. at 300 (mere omission of any mention of intent will not be construed as eliminating element from crime announced); McCallum, 321 Md. at 456, 583 A.2d at 252. Indeed, criminal offenses requiring no mens rea have a "generally disfavored status." McCallum, 321 Md. at 457, 583 A.2d at 252-253.

To recognize that a State legislature may, in defining criminal offenses, exclude mens rea, is not to suggest that it may do so with absolute impunity, without any limitation whatsoever. The validity of such a statute necessarily will depend on whether it violates any provision of the federal, see Smith, 361 U.S. at 152-53, 80 S.Ct. at 218, 4 L.Ed.2d at 211, or applicable state, see Mahoney v. Byers, 187 Md. 81, 87, 48 A.2d 600, 603 (1946) (holding that Article 20, Maryland Declaration of Rights, guaranteeing a defendant a trial of facts as "one of the greatest securities of the lives, liberties and estate of the people," voids a rule which substitutes an irrebuttable presumption for facts), constitution. It is ordinarily the due process clause, either of the federal constitution, or the corresponding provision of the appropriate state constitution, which will determine its validity.^[20] See McMillan v. Pennsylvania, 477 U.S. 79, 83, 85-86, 106 S.Ct. 2411, 2414-16, 91 L.Ed.2d 67, 74-76 (1986); Liparota, 471 U.S. at 424 n. 6, 105 S.Ct. at 2087 n. 6, 85 L.Ed.2d at 439 n. 6; Patterson v. New York, 432 U.S. 197, 202, 97 S.Ct. 2319, 2323, 53 L.Ed.2d 281, 287 (1977); Smith, 361 U.S. at 149, 80 S.Ct. at 217, 4 L.Ed.2d at 209; Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241, 1245, 87 L.Ed. 1519, 1524 (1943); Chaplinski v. New Hampshire, 315 U.S. 568, 570-71, 62 S.Ct. 766, 768-69, 86 L.Ed. 1031, 1034-35 (1942); Manley v. Georgia, 279 U.S. 1, 6, 49 S.Ct. 215, 217, 73 L.Ed. 575, 578 (1929); McFarland v. American Sugar Refining Company, 241 U.S. 79, 85-86, 36 S.Ct. 498, 501, 60 L.Ed. 899, 904 (1916); Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 276, 15 L.Ed. 372 (1855) (Due Process clause restricts legislative power arbitrarily to declare what is "due process of law"). Mahoney, 187 Md. at 87, 48 A.2d at 603; Johns v. State, 55 Md. 350, 363 (1881); McLain, Maryland Practice, "Irrebuttable Presumptions and Constitutional Limitations In Criminal Cases," § 303.1. See generally L. Tribe, American Constitutional Law, Ch. 10 (2nd 1988).

Due process, whether pursuant to that clause of the Fourteenth Amendment^[21] or the corresponding clause in a state constitution, protects an accused from being convicted of a crime except upon proof beyond a reasonable doubt of every element necessary to constitute the crime with which the accused is charged. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375 (1970); Mullaney v. Wilbur, 421 U.S. 684, 685, 95 S.Ct. 1881, 1883, 44 L.Ed.2d 508, 512 (1975). It thus implicates the basic characteristics, if not the fundamental underpinnings, of the accusatorial system. In re Winship, 397 U.S. at 364, 90 S.Ct. at 1072-73, 25 L.Ed.2d at 375. See Gilbert & Moylan, supra, § 45.0, 589-590.

Under our system of justice, a person charged with a crime is presumed innocent until he or she is found guilty beyond a reasonable doubt. That means that he or she may not be found guilty until the State has produced evidence sufficient to convince the trier of fact, to the required extent, of that person's guilt. Moreover, although not required to do so, the defendant may present a defense, in which event the evidence the defendant produces must be assessed along with that of the State in determining whether the State has met its burden. The State's burden is not reduced or changed in any way simply because the defendant elects not to interpose a defense. In those cases, the defendant may still seek to convince the trier of fact that the State has not met its burden of proof by arguing that the inferences to be drawn from the evidence the State has produced simply is not sufficient to support guilt.

Irrebuttable presumptions are rules of substantive law. McLain, §§ 301.1, 303.1; Gilbert & Moylan, supra, § 45.12. See also 9 J. Wigmore, Evidence, § 2492 at 307-08, "Conclusive Presumptions" (Chadbourne Rev. 1981), in which it is explained:

Wherever from one fact another is said to be conclusively presumed, in the sense that the opponent is absolutely precluded from showing by any evidence that the second fact does not exist, the rule is really providing that where the first fact is shown to exist, the second fact's existence is wholly immaterial for the purpose of the proponent's case; and to provide this is to make a rule of substantive law and not a rule apportioning the burden of persuading as to certain propositions or varying the duty of coming forward with evidence.

Thus, irrebuttable presumptions help to define the issues pertinent to a particular kind of case, McLain § 303.1 at 241, and, in that sense, because the substantive law determines the issues to be proved, govern the admission of evidence, thus establishing the perimeters of relevance and materiality. Id., § 301.1 at 183. They may be statutory, McLain, § 303.1 at 182 n. 2, or have their origin in the common law. See In re Davis, 17 Md. App. 98, 100 n. 1, 104, 299 A.2d 856, 858 n. 1, 860 (1973); Miller v. Graff, 196 Md. 609, 620, 78 A.2d 220, 224 (1951). Accordingly, at common law, children under the age of 7 were, and still are, irrebuttably presumed to be incapable of forming criminal intent, Davis, and children under 4 years of age, were, and are, irrebuttably presumed to have been incapable of contributory negligence. As a matter of substantive law, therefore, children of those ages could not then, and may not now, be prosecuted under the criminal law, be sued for negligence, or held to be contributorially negligent. Similarly, section 463(a)(3) reflects the irrebuttable presumption that a child under 14 years of age is incapable of consenting to sexual intercourse. See Rau, 133 Md. at 613-616, 105 A. at 867.

When the Legislature enacts a strict liability crime, i.e., promulgates a statute which excludes as an element, the defendant's mental state, it essentially creates an irrebuttable presumption that the defendant's mental state, i.e., knowledge or intent, is irrelevant. See McLain, § 301.1 at 183. That is the case with regard to statutory rape. Notwithstanding that it chooses to accomplish that result by defining the crime, rather than by means of an express presumption, which relieves the State of its burden of proof, the fact remains that the result is exactly the same: anyone who has sexual relations with a female under the age of 14 is treated as if he knew that she was under 14 and so intended to have such relations with a 14 year old female. It thus relieves the State of any duty to produce relevant evidence to prove the defendant's mental state, that he knew the prosecutrix's age, and prevents the defendant from proving the contrary. Because the irrebuttably presumed fact does not follow inextricably from the fact of sexual relations with a 14 year old, its use to relieve the State of its burden of proof to prove the defendant's intent in that regard runs afoul of the due process clause of the Fourteenth Amendment.

Irrebuttable, mandatory, presumptions have long been disfavored and held to be violative of due process. Vlandis v. Kline, 412 U.S. 441, 446, 453, 93 S.Ct. 2230, 2233, 2237, 37 L.Ed.2d 63, 68, 73 (1973), and cases therein cited. One of the bases for the disfavor is that they may conflict with the overriding presumption of innocence which the law accords to the accused and invade the fact finding process, which, in a criminal case, is the exclusive province of the jury. See Carella v. California, 491 U.S. 263, 268, 109 S.Ct. 2419, 2421, 105 L.Ed.2d 218, 223 (1989) (Scalia, J. concurring) (jury instructions relieving the prosecution of its burden of proof violate a defendant's due process rights; whether he or she is believed ordinarily is a question of fact for the jury to decide, not one of law for the Legislature). The more usual reason for disfavoring irrebuttable presumptions, however, is that the fact conclusively presumed "is not necessarily or universally true in fact," Vlandis, 412 U.S. at 452, 93 S.Ct. at 2236, 37 L.Ed.2d at 71, and, so, excusing the proponent of that fact from having to establish it renders the statute "arbitrary, illegal, capricious and hence unconstitutional." Mahoney, 187 Md. at 87, 48 A.2d at 603.^[22] This is especially so when the presumed fact bears little or no relation to the statute's expressed objective. Vlandis, 412 U.S. at 448-49, 93 S.Ct. at 2234-35, 37 L.Ed.2d at 69-70. Nor, "where there are other reasonable and practicable means of establishing the pertinent facts on which the State's objective is premised," id. at 451, 93 S.Ct. at 2236, 37 L.Ed.2d at 71, may a conclusive presumption, not otherwise appropriate, be rendered acceptable or, because it is a matter of "administrative ease and certainty," id., the State's burden reduced.

The statute invalidated in Vlandis conclusively presumed that the applicant's residence when he applied for admission to a Connecticut University remained his residence throughout his college years. At issue in Mahoney was Rule 146 of the Maryland Racing Commission, the pertinent portion of which provided:

"(d) If the Commission finds from analysis of the saliva or urine, or blood taken from a horse on the day of a race in which the horse ran, or from other competent evidence, that any drug had been administered to the horse within forty-eight (48) hours before the race, the trainer shall be subject to the penalties prescribed in subsection (e) hereof, whether or not he administered the drug, or knowingly or carelessly permitted it to be administered. The fact that the analysis shows the presence of a drug shall be conclusive evidence either that there was knowledge of the fact on the part of the trainer or that he was guilty of carelessness in permitting it to be administered."

187 Md. at 83-84, 48 A.2d at 602. See also United States v. Wulff, 758 F.2d 1121, 1122 (6th Cir.1985) (interpreting the Migratory Bird Treaty Act, a strict liability statute); Guest, 583 P.2d at 838-39 (holding Alaska's statutory rape statute unconstitutional as a violation of due process).

Smith, Tot, and Lambert are also apposite. The ordinance at issue in Smith made it unlawful "for any person to have in his possession any obscene or indecent writing, [or] ... books [i]n any place of business where ... books ... are sold or kept for sale." 361 U.S. at 148, 80 S.Ct. at 216, 4 L.Ed.2d at 208. It did not require proof of any mental element on the part of the defendant. Id. at 149, 80 S.Ct. at 216, 4 L.Ed.2d at 208. Noting, but rejecting, the State's attempt to "analogize this strict liability penal ordinance to familiar forms of penal statutes which dispense with any element of knowledge on the part of the person charged, food and drug legislation being a principal example," the Court observed (id. at 152-153, 80 S.Ct. at 218, 4 L.Ed.2d at 211 (citation omitted)):

The usual rationale for such statutes is that the public interest in the purity of its food is so great as to warrant the imposition of the highest standard of care on distributors — in fact an absolute standard which will not hear the distributor's plea as to the amount of care he has used.... His ignorance of the character of the food is irrelevant. There is no specific constitutional inhibition against making the distributors of food the strictest censors of their merchandise, but the constitutional guarantees of the freedom of speech and of press stand in the way of imposing a similar requirement on the bookseller.

In Lambert, a Los Angeles ordinance required convicted felons who remained in the city for more than five days to register with the police. It did not contain any "knowledge" or mens rea requirement. The Supreme Court held:

actual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply are necessary before a conviction under the ordinance can stand.... Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process. Were it otherwise, the evil would be as great as it is when the law is written in print too fine or in a language foreign to the community.

355 U.S. at 229-30, 78 S.Ct. at 243-44, 2 L.Ed.2d at 232.

Similarly, in Tot, holding that section 2(f) of the Federal Firearms Act violated the Due Process Clauses of the Fifth and Fourteenth Amendment, 319 U.S. at 467, 63 S.Ct. at 1245, 87 L.Ed. at 1524, the Court overturned the defendant's conviction. It held that Congress had no power to create the presumptions contained in that section to wit: that, from the defendant's prior conviction of a crime of violence and his present possession of a firearm, it is conclusively presumed that the firearm was received in interstate or foreign commerce, after the effective date of the statute. Id. at 467, 63 S.Ct. at 1245, 87 L.Ed. at 1524. Rejecting the Government's argument that it was entitled to the presumption because the defendant had the better means of information, the Court said (id. at 469, 63 S.Ct. at 1246, 87 L.Ed. at 1525):

But the argument proves too much. If it were sound, the legislature might validly command that the finding of an indictment, or mere proof of the identity of the accused, should create a presumption of the existence of all the facts essential to guilt. This is not permissible. (footnote omitted).

In the case sub judice, by consciously and intentionally excluding from section 463(a)(3) any requirement that the defendant's knowledge of the victim's age be proven, the Legislature has relieved the State of that obligation; without that legislation, of course, the State's burden would have included proving, at the very least, that the defendant knew the prosecutrix's age. On the issue of the defendant's intent, section 463(a)(3) only requires proof of the victim's age and its differential with that of the defendant. As such, once those facts have been proven, it is conclusively established that the defendant's intent was to have sexual relations with a girl of the proscribed age.^[23] As we have seen, not requiring proof of the defendant's intent has been accomplished by so defining the crime, not by means of an express presumption. Again, that is of no real consequence, however. By defining the crime, the Legislature prescribes what must be proven. In other words, by that process, it has determined what the rule of substantive law will be — by defining the crime so as to exclude proof of knowledge or intent, the Legislature naturally precludes the admission of any evidence bearing on the element, the proof of which it has excused. In so doing, it has made that element — intent or knowledge of the victim's age — irrelevant to the definition of the crime and, hence, irrebuttable. Wigmore, § 2492 at 307-08. It follows, therefore, that, once the other elements are proven, the defendant's knowledge or intent is necessarily established as well. It does not necessarily follow, however, that simply because the victim is 13 years old, the defendant had knowledge of her age or intended to have sexual relations with a 13 year old girl. He may have had knowledge or intent, to be sure, but, by the same token, he may not have. The defendant should have been permitted to present evidence on the issue.

In her treatise, Professor McLain, echoing the authorities, offered an example of the Legislature redefining a crime to exclude an element, without relying on an irrebuttable presumption. She referred to Maryland Code (1957, 1992 Repl. Vol.) Art. 27, § 286A^[24] which punishes a defendant for possession of certain large amounts of drugs, without regard to intent. That is not comparable to the case sub judice. While, under the statute, it is true that the possession of the proscribed drugs is a crime without proof of the intent with which they are possessed, the State is not relieved of its responsibility of proving both that they were brought into Maryland and that the possession was a knowing possession. Dawkins v. State, 313 Md. 638, 547 A.2d 1041 (1988). In the case of statutory rape all aspects of the defendant's knowledge, save proof of the intercourse itself, has been rendered, by definition, irrelevant and, so, off limits for the trial. That is, I repeat, by no means comparable.

The critical issue in a statutory rape case is "the age of the rape victim." That is true because the victim's age serves two related, but distinct purposes: (1) it establishes the victim's capacity to consent and (2) it represents notice to a defendant of proscribed conduct. The Maryland statute seeks irrebuttably to presume not only that the victim could not consent by virtue of age, but also that, when a defendant engages in sexual relations with a minor under the age of 14, he has notice of that fact. Assuming that, based on the victim's age, the Legislature could legitimately exclude consent as an element of the crime,^[25] it absolutely should not be able to excuse the State from its obligation to prove the defendant's knowledge of the victim's age or prevent the defendant from producing evidence on that issue. No matter how forcefully it may be argued that there is a rational relationship between the capacity to consent and the age the Legislature selected, given the tremendous difference between individuals, both in appearance and in mental capacity, there can be no such rational relationship between the proof of the victim's age and the defendant's knowledge of that fact.^[26] See Tot, 319 U.S. at 469, 63 S.Ct. at 1245-46, 87 L.Ed. at 1525. Mahoney, 187 Md. at 87, 48 A.2d at 603.

The notice element of the crime of statutory rape is different from the consent element, in any event. A defendant who has knowledge that a victim has consented, in fact, to sexual relations, whether the consent is effective or not, is not thereby placed on notice as to the victim's age. Knowledge of consent simply does not equate with knowledge of age, just as intent to engage in sexual relations does not reveal, without more, with whom. Moreover, it is not a crime to engage in sexual relations with a minor who is at least 16 years old; it may be morally wrong, in the minds of most Americans, but it is not a crime. It is only a crime if the defendant engages in such relations with a minor under a specified age, i.e., 14, as in section 463(a)(3), or 14 or 15, as in section 464C. But even when the act engaged in is necessarily a crime, e.g. possession of contraband, knowledge of the illegality — that the contraband is knowingly possessed — is still required. See Dawkins v. State, 313 Md. 638, 547 A.2d 1041 (1988). Consequently, where the activity would be legal or, at least, not illegal, but for the ages of the participants, at the very least, the defendant's knowledge of the victim's age must be proven. Otherwise, a defendant who does not know he is acting illegally could be convicted.

Moreover, there is precedent that a felony statute which prescribes substantial penalties and conviction of which will subject the defendant to significant social stigma, violates due process unless it requires the State to prove intent or knowledge, Wulff, 758 F.2d at 1125; Holdridge v. United States, 282 F.2d 302 (8th Cir.1960); United States v. Heller, 579 F.2d 990 (6th Cir.1978); Guest, 583 P.2d 836 (Ala. 1978).^[27]

In Wulff, the defendant was charged with violation of the felony provisions of the Migratory Bird Treaty Act, 16 U.S. § 707(b). On motion by the defendant, the trial court dismissed the charges, holding that the provisions under which he was charged violated due process, no proof of intent being required. On appeal by the Government, the Court of Appeals affirmed. 758 F.2d at 1122. That court perceived the issue to be "whether the absence of a requirement that the government prove some degree of scienter violates the defendant's right to due process." In resolving that issue, it observed, relying on Holdridge, supra, that "a felony conviction under the act does not require proof of scienter; the crime is not one known to the common law, and ... the felony penalty provision is severe and would result in irreparable damage to one's reputation." Id. The court then held:

We are of the opinion that in order for one to be convicted of a felony under the MBTA, a crime unknown to common law which carries a substantial penalty, Congress must require the prosecution to prove the defendant acted with some degree of scienter. Otherwise, a person acting with a completely innocent state of mind could be subjected to a severe penalty and grave damage to his reputation. This, in our opinion, the Constitution does not allow.

Id. at 1125. See Holdridge, 282 F.2d at 310, in which it is said:

[W]here a federal criminal statute omits mention of intent and where it seems to involve what is basically a matter of policy, where the standard imposed is, under the circumstances, reasonable and adherence thereto properly expected of a person, where the penalty is relatively small, where conviction does not gravely besmirch, where the statutory crime is not taken over from the common law, and where congressional purpose is supporting, the statute can be construed as one not requiring criminal intent. The elimination of this element is then not violative of the due process clause.

A similar result was reached by the Supreme Court of Alaska in Guest, involving a charge of statutory rape. Significantly, having held that, under its precedents, a reasonable mistake of age defense was permitted, the court submitted:

[W]here a particular statute is not a public welfare type of offense, either a requirement of criminal intent must be read into the statute or it must be found unconstitutional.... Since statutes should be construed where possible to avoid unconstitutionality, it is necessary here to infer a requirement of criminal intent.

Id. at 839 (citations and footnote omitted).

Similarly, the prosecution of statutory rape in Maryland necessarily brings into conflict the State's interests in protecting minors and defendants' due process rights because section 463(a)(3) operates "`to exclude elements of knowledge and diligence from its definition,'" Ransom, 942 F.2d at 776, quoting Lambert, 355 U.S. at 228, 78 S.Ct. at 242, 2 L.Ed.2d at 231, and, thus, removes reasonable ignorance of the girl's age and consequent lack of criminal intent as a defense. The failure of section 463(a)(3) to require proof of a culpable mental state conflicts both with the substantive due process ideal requiring that defendants possess some level of fault for a criminal conviction of statutory rape and the procedural due process ideal requiring that the prosecution overcome the presumption of innocence by proof of the defendant's guilt beyond a reasonable doubt. Notwithstanding the maxim that criminal statutes dispensing with the intent requirement and criminal offenses requiring no mens rea have a "generally disfavored status," the rationale of parts V and VI of the majority opinion is that the legislature has absolute authority to create strict liability crimes. For the reasons reviewed, I do not agree. On the contrary, I believe that due process both under the Fourteenth Amendment and under the Declaration of Rights, precludes strict criminal liability for statutory rape. Interpreting section 463(a)(3) as the majority does has the effect of largely relieving the State of its burden of proof and burden of persuasion. By making the defendant's intent, and, hence, blameworthiness, irrelevant, the Legislature has made inevitable, the petitioner's conviction. Moreover, upon conviction of the felony offense of statutory rape under section 463(a)(3), in addition to a substantial penalty of up to 20 years imprisonment, a defendant's reputation will be gravely besmirched. Where there is no issue as to sexual contact, which is more likely than not to be the case in statutory rape prosecutions, proof of the prosecutrix's age is not only proof of the defendant's guilt, it is absolutely dispositive of it and, at the same time, it is fatal to the only defense the defendant would otherwise have. So interpreted, section 463(a)(3) not only destroys absolutely the concept of fault, but it renders meaningless, in the statutory rape context, the presumption of innocence and the right to due process.

I respectfully dissent.

[1] "If any person shall carnally know and abuse any woman-child under the age of ten years, every such carnal knowledge shall be deemed felony, and the offender, being convicted thereof, shall, at the discretion of the court, suffer death by hanging ... or undergo a confinement in the penitentiary for a period not less than one year nor more than twenty-one years." Ch. 138, Sec. 4, 7th. (1809) compiled in 1 Dorsey's General Public Statutory Law and Public Local Law of the State of Maryland 575 (1840). The minimum age of the child was raised from 10 years to 14 years in Chapter 410 of the Acts of 1890.

[2] With respect to the law of statutory rape, the Model Penal Code strikes a compromise with its general policy against strict liability crimes. The Code prohibits the defense of ignorance or a reasonable mistake of age when the victim is below the age of ten, but allows it when the critical age stipulated in the offense is higher than ten. Model Penal Code, supra, at §§ 213.1, 213.6(1). The drafters of the Code implicitly concede that sexual conduct with a child of such extreme youth would, at the very least, spring from a criminally negligent state of mind. The available defense of reasonable mistake of age for complainants older than ten requires that the defendant not have acted out of criminal negligence. See the Comment to § 213.6, at 415-416.

[3] Myers notes, too, that European law upholds mistake of age as a defense to statutory rape. Id. at 106, and n. 12.

[4] See also Ariz. Rev. Stat. Ann. § 13-1407(B) (1989, 1992 Cum.Supp.) (age 14); Ark. Code Ann. § 5-14-102 (1987) (age 14); Col.Rev.Stat. § 18-3-406 (1973, 1986 Repl.Vol.) (age 15); Ind. Code Ann. § 35-42-4-3 (1985 Repl.Vol.) (age 12); Mo. Ann. Stat. § 566.020 (1979) (age 14); Mont. Code Ann. § 45-5-511(1) (1991) (age 14); N.D. Cent. Code § 12.1-20-01.1 (1991 Supp.) (age 15); Wyo. Stat.Ann. § 6-2-308 (1988) (age 12).

[5] See also Ill.Comp.Stat. ch. 720, § 5/12-17(b) (1993) (defense available for offenses defined as criminal sexual abuse); Me. Rev. Stat. Ann. tit. 17-A, § 254.2 (1983, 1992 Cum.Supp.) (available for charge of sexual abuse of minors); Ohio Rev.Code Ann. § 2907.04 (1953, 1993 Repl. Vol.) (available for charge of corruption of minors).

[6] Both the California Penal Code and the Utah Criminal Code included provisions requiring a concurrence of act and intent to constitute a crime. The Utah Criminal Code further contained a provision authorizing convictions for strict liability offenses clearly defined as such. See Hernandez, supra, 39 Cal. Rptr. at 363, 393 P.2d at 675; Elton, supra, 680 P.2d at 728-729.

[7] The House version read in pertinent part: "A person is guilty of rape in the first degree if the person engages in vaginal intercourse: ... (2) with another person who is under 14 years of age and the person performing the act is at least four or more years older than the victim." As discussed earlier, the offense was reduced to second degree rape in 1977.

[1] In this connection, it should be noted that the defendant-appellant, in his opening brief in this Court, made no constitutional argument either directly or by invoking the principle of statutory construction that a statute should be construed so as to avoid a serious constitutional problem. Consequently, the State had no opportunity to brief the constitutional issue discussed in Judge Bell's dissent.

[2] As pointed out by one commentator, "it can be argued that if strict liability statutes are to be characterized as `strict' because of their failure to permit inquiry as to the defendant's state of mind, this description is too broad. More appropriately, each criminal statute must be examined to determine in what respects it is `strict.'" Wasserstrom, Strict Criminal Liability, 12 Stan.L.Rev. 731, 742 (1960).

[1] Maryland Code Ann., Art 27, § 463 provides, in pertinent part:

(a) What constitutes. — A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person:

* * * * * *

(3) Who is under 14 years of age and the person performing the act is at least four years older than the victim.

(b) Penalty. — Any person violating the provisions of this section is guilty of a felony and upon conviction is subject to imprisonment for a period of not more than 20 years.

[2] There are other provisions of the Maryland sexual offenses statutes similar in purpose and effect to section 463(a)(3). Md.Code (1957, 1992 Repl.Vol.) §§ 464A, 464B, and 464C also do not specify a mental state and, therefore, would also be, under the majority's rationale, strict liability crimes. Sections 464A and 464B define statutory second degree sexual act and statutory third degree sexual offense. Although neither involves intercourse, both are felonies with maximum penalties of 20 and 10 years respectively. Section 464C proscribes the same conduct as section 463(a)(2); however, it applies to minors 14 or 15 years old and it punishes that conduct much less severely. see n. 15 infra.

[3] The analysis I would employ is that developed for use in self defense cases, perfect and imperfect. Before the State's burden affirmatively to prove the defendant's mental state kicks in, the defendant must have generated the issue by producing "some evidence" supporting his or her claim of mistake of fact. State v. Martin, 329 Md. 351, 358-59, 619 A.2d 992, 995-96 (1993). If the defendant generates the issue, the State must prove beyond a reasonable doubt that the act was committed without any mistake of fact — that the defendant acted intentionally and knowingly. See id.; see also State v. Evans, 278 Md. 197, 208, 362 A.2d 629, 635 (1976); Dykes v. State, 319 Md. 206, 216-17, 571 A.2d 1251, 1257 (1990).

[4] The Court stated that exceptions were developed in the course of the common law for "sex offenses, such as rape, in which the victim's actual age was determinative despite the defendant's reasonable belief that the girl had reached age of consent." Morissette, 342 U.S. at 251 n. 8, 72 S.Ct. at 244 n. 8, 96 L.Ed. at 294 n. 8, It, however, did not discuss whether the exceptions could withstand constitutional scrutiny, stating only that the exceptions were not relevant to the case before the Court. See id.; 342 U.S. at 250-51 n. 8, 72 S.Ct. at 244 n. 8, 96 L.Ed. at 294 n. 8.

[5] In State v. McCallum, 321 Md. 451, 455-56, 583 A.2d 250, 252-53 (1991), we characterized the crime of driving with a suspended license as both punitive and regulatory and concluded that a mental state was required. The argument that § 463(a)(3), which is purely punitive, must require proof of a mental state is stronger.

[6] Maryland does not treat narcotic offenses as strict liability crimes. See Dawkins, 313 Md. 638, 547 A.2d 1041 (1988) (knowledge is an element of possession of a controlled dangerous substance).

[7] The Maryland bigamy statute, proscribing the entering into of a marriage ceremony while lawfully married to another, excludes from its coverage individual whose "lawful spouse has been absent from the individual for a continuous period of seven years and who, at the time of the subsequent marriage ceremony, does not know whether or not the spouse is living." Maryland Code (1957, 1992 Repl.Vol.) Art. 27, § 18(b). See Braun v. State, 230 Md. 82, 85-90, 185 A.2d 905, 906-07 (1962). The Legislature thus has now recognized the unfairness of convicting a person for remarrying if that person has a reasonable belief that his or her former spouse is dead.

[8] American penal statutes against fornication are generally unenforced, which may be reflective of the view that such a use of the penal law is improper. See Model Penal Code, § 213, Comment at 434.

[9] Sexual intercourse out of wedlock is still a crime in several American Jurisdictions. See Model Penal Code, § 213.6, Comment at 430. The prohibition derives from Biblical sources and long fell within the exclusive jurisdiction of the ecclesiastical authorities. Id. In England, secular punishment began under Cromwell's theocracy and was abandoned after the Restoration. Id. The Puritans of New England reinstituted punishment for sexual misbehavior. Id. At one time or another, most American states extended their penal laws to reach such misconduct, but the trend in this century has been toward decriminalization or reduction of penalties. See e.g. Baker v. Lease, 236 Md. 246, 248, 203 A.2d 700, 701 (1964). See generally Model Penal Code § 213.6, Comment at 430 (footnote omitted).

[10] A conviction plausibly could have been supported under the lesser legal wrong theory had the defendant been married when he had sex with the prosecutrix. Adultery remains a crime in Maryland. See Md.Code (1957, 1992 Repl.Vol.) Art. 27, § 4. The defendant's intent to commit adultery, the lesser legal wrong, would suffice as the requisite mental state for the greater crime of statutory rape.

[11] In contrast, one who engages in sexual relations with a child who clearly does not appear to be of the age of consent, for example, a minor 7 years of age, evidences a propensity to corrupt minors. Because that person necessarily is aware that the minor is not of the age to consent, almost all authorities believe that he or she is properly held accountable on a strict liability basis. See e.g. Model Penal Code, § 213.6, Comment at 415-16.

[12] An offense malum in se is properly defined as one which is naturally evil as adjudged by the sense of a civilized community. Acts mala in se have, as a general rule, become criminal offenses by the course and development of common law. Black's Law Dictionary 281 (1984). In comparison, an act malum prohibitum is wrong only because made so by statute. Id. Malum in se crimes usually include all felonies, injuries to property, adultery, bigamy, indecent acts committed upon underage children, and conduct contributing to the delinquency of a minor. See Myers, supra, at 115; see also Rollin M. Perkins and Ronald N. Boyce, Criminal Law, 109 (3rd ed. 1982).

[13] The mistaken belief must tend to negate the mens rea necessary to the commission of the crime. For example, belief that the victim was 13 1/2 years of age, instead of 13, will be of no avail since section 463(a)(3)'s age limit is 14.

[14] It is noteworthy that the early English statutes providing for strict criminal liability for statutory rape did not deny the defense of mistake of fact. Under very early English common law, it was no crime to have consensual relations with a female, regardless of her age. Myers, supra, at 109, citing 4 W. Blackstone Commentaries [*]210 and 2 Coke, Institutes [*]180. It was not until the latter part of the thirteenth century that legislation was enacted in England making it unlawful to ravish "damsels" under the age of 12 years, with or without their consent, considered an action of trespass, with a penalty of two years and a fine in such sum as the sovereign directs. Gilbert & Moylan, Criminal Law, § 5.0., citing 4 W. Blackstone, Commentaries [*]212. Toward the close of the 16th century, the age of consent was reduced to 10 years old, the purpose of the statute being to declare that a girl under the prescribed age was presumed incapable of consent because she was too young to understand the nature and quality of her act. Myers, supra, at 109-10; Charles E. Torcia, Wharton's Criminal Law, § 291; 1 Blackstone Comm. [*]212. The offense was also increased to a felony. See Gilbert & Moylan, Criminal Law, § 5.0., citing 13 Edward I, Statute of Westminster 2, c.34 and Statute 18 Elizabeth I, c. 7. English courts, in contrast to American courts, which never have allowed it, however, never denied the existence of the reasonable mistake of fact defense. Myers, supra, at 111. American Courts erroneously interpreted Regina v. Prince, L.R. 2 Cr.Cas.Res. 154 (1875), cited in Myers, supra, at 111, and applied its rationale to statutory rape.

[15] Two policy considerations have historically been advanced to justify strict criminal liability for statutory rape: (1) it is desirable to provide the fullest protection to the innocent and naive female child incapable of understanding the nature of sexual intercourse; and (2) the act is immoral in itself, malum in se, discussed supra, and, so, it is appropriate to hold that the offender acts at his peril. See Tonry, supra, at 111.

Establishing an age, below which females are considered sexually immature and above which, they are considered sexually mature, does not assure that the first policy consideration will be achieved. See Tonry, supra, at 111. Age alone is not sufficient, considering that, in this country, the age of consent for statutory rape purposes ranges from 7 to 21 years. Id.

The inadequacy of age as a demarcation line actually points up the flaws in the strict criminal liability analysis. First, it would seem reasonable to allow the accused to introduce evidence of the minor's maturity, sophistication, and past sexual experience, since maturity, not age, is the chief concern, age being but a factor. Second, the age standard (unless it is low enough) with its universal application draws an arbitrary line, resulting in the imposition of disproportionate penalties. See J. William Pitcher, Legislation, 7 Balt.L.Rev. 150, 165 (1977); see also Tonry, supra, at 112. Thus, for example, pursuant to section 463(a)(3) sexual intercourse with a person under 14 years of age, if the actor is at least four years older than the victim, is a second degree rape offense punishable by a possible twenty years imprisonment. Under section 464C, defining a fourth degree sexual offense, the same conduct if committed with a child 14 or 15 is punishable by a possible 1 year sentence. Thus, the law creates a potential disparity of up to 19 years for a difference of as little as one day in the victim's age. See J. William Pitcher, Legislation, 7 Balt.L.Rev. 150, 165 (1977). Third, placing the age standard too high may result in the anomaly of a female being legally able to consent to marriage, but unable to consent to intercourse. Tonry, supra, at 112, citing Ploscowe, Sex and the Law 184 (1951).

[16] While consent was not an element of assault with intent to have carnal knowledge of a female child under 14 years, by definition, the intent to have such knowledge of a 14 year old child was. Consequently, focusing on intent, the result in that case was not inconsistent with the common law.

[17] Recognizing that the statutory rape law stemmed from traditional notions underlying the presumption of incapacity to consent, presuming that the male was responsible for the occurrence and the female was "too innocent and naive to understand the implications and nature of her act", in Hernandez, 61 Cal.2d at 531 n. 1, 39 Cal. Rptr. at 362 n. 1, 393 P.2d at 674 n. 1, the California Supreme Court quoted the following passage from State v. Snow, 252 S.W. 629, 632 (Mo. 1923) to illustrate the potentially unfair consequences of employing these presumptions of female victimization:

"We have in this case a condition and not a theory. This wretched girl was young in years but old in sin and shame. A number of callow youths, of otherwise blameless lives ... fell under her seductive influence. They flocked about her, ... like moths about the flame of a lighted candle and probably with the same result. The girl was a common prostitute. .. .

The boys were immature and doubtless more sinned against than sinning. They did not defile the girl. She was a mere `cistern for foul toads to knot and gender in.' Why should the boys, misled by her, be sacrificed? What sound public policy can be subserved by branding them as felons? Might it not be wise to ingraft an exception in the statute?"

Today, the increasing sexual awareness and promiscuity currently evident at lower ages enhances the probability that sexual experimentation will be indulged in, and many times solicited, by the supposed victim. See Myers, supra, at 122. Indeed, in this case there is every reason to question whether the victim was the petitioner, rather than the minor female. The petitioner has an IQ of 52. The prosecutrix and her friends told the petitioner that she was 16 and the record does not suggest that she did not appear to be that age. The petitioner entered the prosecutrix's room at her invitation and remained with her for almost seven hours.

[18] Although it is not necessary in this case to reach the issue, I am not nearly so troubled by the retention of strict liability in cases involving very young children, i.e. under the age of 10, while requiring the State to prove mens rea in cases involving minors above the age of 10.

[19] The offer of proof of the defendant's alleged mistake of fact does not alone establish that fact. Unless the jury, or trier of fact, accepts the proof, the defense must fail. Whether a defendant actually entertained the belief that the minor was 16 and, if so, its reasonableness, must depend upon the minor's appearance and the evidence, including the testimony of the defendant and other witnesses, concerning her behavior. Rather than place the burden of proof on the State, as I would do, under the Code, the burden is on the defendant not only to generate the issue, but to prove it by a preponderance of the evidence. See Model Penal Code, § 213.6, Comment at 416.

[20] Article 20 of the Maryland Declaration of Rights, which has been held to be in pari materia with the Fourteenth Amendment's Due Process Clause, see Sanner v. Trustees of Sheppard & Enoch Pratt Hosp., 278 F. Supp. 138 (D.Md.), aff'd, 398 F.2d 226 (4th Cir.), cert. denied, 393 U.S. 982, 89 S.Ct. 453, 21 L.Ed.2d 443 (1968), rehearing denied, 393 U.S. 1112, 89 S.Ct. 853, 21 L.Ed.2d 813 (1969) (citations omitted); Home Utilities Co., Inc. v. Revere Copper and Brass, Inc., 209 Md. 610, 122 A.2d 109 (1955); Goldsmith v. Mead Johnson & Co., 176 Md. 682, 7 A.2d 176 (1939), provides:

That the trial of facts, where they arise, is one of the greatest securities of the lives, liberties and estate of the people.

See also Article 24 of the Maryland Declaration of Rights, which provides:

That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.

The phrase "Law of the land" has been held to be equivalent to "due process" of the law, as used in the 14th Amendment to the United States Constitution. In re Easton, 214 Md. 176, 187-89, 133 A.2d 441, 447-48 (1957). In that regard, therefore, Supreme Court cases on that subject are practically direct authority for the meaning of the Maryland provision. Northampton Corp. v. Wash. Sub. San. Comm'n, 278 Md. 677, 686, 366 A.2d 377, 383 (1976). The essential elements of due process as it relates to a judicial proceeding are notice and opportunity to defend. Accrocco v. Splawn, 264 Md. 527, 534, 287 A.2d 275, 278-80 (1972).

[21] The due process clause of the Fourteenth Amendment of the United States Constitution guarantees that no State shall "deprive any person of life, liberty or property without due process of law." This clause has been interpreted as "a restraint on the legislative as well as on the executive and judicial powers of the government and [it] cannot be ... construed as to leave Congress free to make any process `due process' of law by its mere will." Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 276, 15 L.Ed. 372 (1855). L. Tribe, American Constitutional Law § 10-7, at 664 (2nd ed. 1988).

[22] In Johns v. State, 55 Md. 350, 359-63 (1881), cited by this Court in Mahoney v. Byers, 187 Md. 81, 87, 48 A.2d 600, 603 (1946), a statute requiring the certificate of the Comptroller to be received as prima facie evidence of the defendant's defalcation was upheld. In doing so, however, the Court was persuaded by the fact that the evidence was only prima facie:

So far as this case is concerned, it may readily be conceded, that a statute that should make evidence conclusive, which was not so of its own nature and inherent force, and by that means preclude the party from the truth, would be simply void. But the evidence furnished by the certificate only being prima facie in its effect, the traverser was left at full liberty to repel and overcome that prima facie effect, by evidence that ought to have been within his own control.

Id. at 362-63.

[23] To be sure, the statute is based on another irrebuttable presumption: that the victim is incapable of consenting. My argument is not directed at that presumption, albeit it is, in my opinion, logically, also fair game for constitutional challenge. See n. 26: see Hernandez, 61 Cal.2d at 534 n. 3, 39 Cal. Rptr. at 364 n. 3, 393 P.2d at 676 n. 3. It is certainly not universally true, or even almost always true, that a minor 13 years of age is incapable of giving meaningful consent. See note 25 infra.

[24] § 286A. Bringing into State in excess of certain amounts.

(a) A person who brings into this State any of the following controlled dangerous substances which it is unlawful for that person to possess, in the amounts indicated, upon conviction, is subject to the penalty provided in subsection (b) of this section:

(1) 100 pounds or greater of marijuana;

(2) 28 grams or greater of cocaine or any mixture containing 28 grams or greater of cocaine;

(3) 4 grams or more of morphine or opium or any derivative, salt, isomer, or salt of an isomer of morphine or opium;

(4) 1,000 dosage units of lysergic acid diethylamide or any mixture containing the equivalent of 1,000 dosage units of lysergic acid diethylamide;

(5) 28 grams or more of phencyclidine in liquid or powder form or 112 grams or more of any mixture containing phencyclidine;

(6) 1,000 dosage units or more of methaqualone; or

(7) 28 grams or more of methamphetamines or any mixture containing 28 grams or more of methamphetamine.

(b) A person convicted of violating subsection (a) of this section is guilty of a felony and may be fined not more than $50,000 or imprisoned for not more than 25 years, or both fined and imprisoned in the discretion of the court.

[25] It is at least arguable that incapacity to consent based on an irrebuttable presumption cannot withstand constitutional scrutiny. For statutory rape to comport with due process, a close correlation between the age of consent specified in the statute and the purpose of the statute — to render minors incapable of consenting to sexual intercourse — is required. It is not necessarily true that a statutory age of consent is a reliable indicator of the capacity of any member of the protected class to understand the nature and consequences of sexual intercourse. See Hernandez, 61 Cal.2d at 534 n. 3, 39 Cal. Rptr. at 364 n. 3, 393 P.2d at 676 n. 3; see also Myers, supra, at 121. Given the variety of cultural factors that can influence a child's acquisition of sexual awareness, it is unlikely that any arbitrary age could do so. Rita Eidson, Note, The Constitutionality of Statutory Rape Laws, 27 UCLA L.Rev. 757, 808 (1980). While it is reasonable to presume that very young children are naive and incapable of understanding the nature of sexual contact, and, thus, of consenting, an older adolescent's incapacity to consent on this basis seems unreasonable in light of pervasive contemporary sexual mores. See Hernandez, 61 Cal.2d at 534 n. 3, 39 Cal. Rptr. at 364 n. 3, 393 P.2d at 676 n. 3; see also Note, supra, at 808-809.

[26] Indeed, it would appear that the irrebuttable presumption of notice is dependent on another irrebuttable presumption, that a person of a certain age cannot consent.

[27] As discussed supra, there are several critical distinctions between imposing strict criminal liability for public welfare offenses and felonies. First, there is no specific constitutional provision against imposing strict criminal liability for public welfare offenses. See Smith, 361 U.S. at 152, 80 S.Ct. at 218, 4 L.Ed.2d at 211; Singer, supra at 389. Second, such statutes which are designed to protect the health, safety, and welfare of the community at large, carry penalties that are not great and involve little or no stigma. See Tonry, supra, at 106.

On the other hand, there are constitutional limits on a legislature's power to define the elements of more serious criminal offenses like felonies. McMillan, 477 U.S. at 85, 106 S.Ct. at 2415, 91 L.Ed.2d at 75; Wulff, 758 F.2d at 1125; Singer, supra, at 397. Second, the greater social stigma attached to imposing criminal liability in serious felony cases requires an element of blameworthiness or culpability. See Singer, supra, at 404-405. Third, the severe penalties in serious felony cases merit a culpability requirement. See Holdridge, 282 F.2d 302.

Andrew C. Fine, Katherine Preece and Philip L. Weinstein for appellant.

Robert M. Morgenthau, District Attorney (Robert M. Raciti and Donald J. Siewert of counsel), for respondent.

Chief Judge WACHTLER and Judges SIMONS and TITONE concur with Judge BELLACOSA; Judge HANCOCK, JR., dissents and votes to reverse in a separate opinion in which Judges KAYE and ALEXANDER concur.

[384] BELLACOSA, J.

The defense of mistake of law (Penal Law § 15.20 [2] [a], [d]) is not available to a Federal corrections officer arrested in a Manhattan social club for possession of a loaded .38 caliber automatic pistol who claimed he mistakenly believed he was entitled, pursuant to the interplay of CPL 2.10, 1.20 and Penal Law § 265.20, to carry a handgun without a permit as a peace officer.

In a prior phase of this criminal proceeding, defendant's motion to dismiss the indictment upon which he now stands convicted was granted (94 Misc 2d 367); then it was reversed and the indictment reinstated by a divided Appellate Division (71 AD2d 346); next, defendant allowed an appeal from that order, certified to the Court of Appeals, to lapse and be dismissed (Oct. 22, 1980). Thus, review of that aspect of the case is precluded (People v Corley, 67 N.Y.2d 105).

On the trial of the case, the court rejected the defendant's argument that his personal misunderstanding of the statutory definition of a peace officer is enough to excuse him from [385] criminal liability under New York's mistake of law statute (Penal Law § 15.20). The court refused to charge the jury on this issue and defendant was convicted of criminal possession of a weapon in the third degree. We affirm the Appellate Division order upholding the conviction.

Defendant was a Federal corrections officer in Danbury, Connecticut, and asserted that status at the time of his arrest in 1977. He claimed at trial that there were various interpretations of fellow officers and teachers, as well as the peace officer statute itself, upon which he relied for his mistaken belief that he could carry a weapon with legal impunity.

The starting point for our analysis is the New York mistake statute as an outgrowth of the dogmatic common-law maxim that ignorance of the law is no excuse. The central issue is whether defendant's personal misreading or misunderstanding of a statute may excuse criminal conduct in the circumstances of this case.

The common-law rule on mistake of law was clearly articulated in Gardner v People (62 N.Y. 299). In Gardner, the defendants misread a statute and mistakenly believed that their conduct was legal. The court insisted, however, that the "mistake of law" did not relieve the defendants of criminal liability. The statute at issue, relating to the removal of election officers, required that prior to removal, written notice must be given to the officer sought to be removed. The statute provided one exception to the notice requirement: "removal * * * shall only be made after notice in writing * * * unless made while the inspector is actually on duty on a day of registration, revision of registration, or election, and for improper conduct" (L 1872, ch 675, § 13). The defendants construed the statute to mean that an election officer could be removed without notice for improper conduct at any time. The court ruled that removal without notice could only occur for improper conduct on a day of registration, revision of registration or election.

In ruling that the defendant's misinterpretation of the statute was no defense, the court said: "The defendants made a mistake of law. Such mistakes do not excuse the commission of prohibited acts. `The rule on the subject appears to be, that in acts mala in se, the intent governs, but in those mala prohibita, the only inquiry is, has the law been violated?' (3 Den., 403). The act prohibited must be intentionally done. A mistake as to the fact of doing the act will excuse the party, [386] but if the act is intentionally done, the statute declares it a misdemeanor, irrespective of the motive or intent * * * The evidence offered [showed] that the defendants were of [the] opinion that the statute did not require notice to be given before removal. This opinion, if entertained in good faith, mitigated the character of the act, but was not a defence [sic]" (Gardner v People, 62 N.Y. 299, 304, supra). This is to be contrasted with People v Weiss (276 N.Y. 384) where, in a kidnapping case, the trial court precluded testimony that the defendants acted with the honest belief that seizing and confining the child was done with "authority of law". We held it was error to exclude such testimony since a good-faith belief in the legality of the conduct would negate an express and necessary element of the crime of kidnapping, i.e., intent, without authority of law, to confine or imprison another. Subject to the mistake statute, the instant case, of course, falls within the Gardner rationale because the weapons possession statute violated by this defendant imposes liability irrespective of one's intent.

The desirability of the Gardner-type outcome, which was to encourage the societal benefit of individuals' knowledge of and respect for the law, is underscored by Justice Holmes' statement: "It is no doubt true that there are many cases in which the criminal could not have known that he was breaking the law, but to admit the excuse at all would be to encourage ignorance where the law-maker has determined to make men know and obey, and justice to the individual is rightly outweighed by the larger interests on the other side of the scales" (Holmes, The Common Law, at 48 [1881]).

The revisors of New York's Penal Law intended no fundamental departure from this common-law rule in Penal Law § 15.20, which provides in pertinent part:

"§ 15.20. Effect of ignorance or mistake upon liability.* * *"2. A person is not relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief that it does not, as a matter of law, constitute an offense, unless such mistaken belief is founded upon an official statement of the law contained in (a) a statute or other enactment * * * (d) an interpretation of the statute or law relating to the offense, officially made or issued by a public servant, agency, or body legally charged or empowered with the responsibility [387] or privilege of administering, enforcing or interpreting such statute or law."

This section was added to the Penal Law as part of the wholesale revision of the Penal Law in 1965 (L 1965, ch 1030). When this provision was first proposed, commentators viewed the new language as codifying "the established common law maxim on mistake of law, while at the same time recognizing a defense when the erroneous belief is founded upon an `official statement of the law'" (Note, Proposed Penal Law of New York, 64 Colum L Rev 1469, 1486 [1964]).

The defendant claims as a first prong of his defense that he is entitled to raise the defense of mistake of law under section 15.20 (2) (a) because his mistaken belief that his conduct was legal was founded upon an official statement of the law contained in the statute itself. Defendant argues that his mistaken interpretation of the statute was reasonable in view of the alleged ambiguous wording of the peace officer exemption statute, and that his "reasonable" interpretation of an "official statement" is enough to satisfy the requirements of subdivision (2) (a). However, the whole thrust of this exceptional exculpatory concept, in derogation of the traditional and common-law principle, was intended to be a very narrow escape valve. Application in this case would invert that thrust and make mistake of law a generally applied or available defense instead of an unusual exception which the very opening words of the mistake statute make so clear, i.e., "A person is not relieved of criminal liability for conduct * * * unless" (Penal Law § 15.20). The momentarily enticing argument by defendant that his view of the statute would only allow a defendant to get the issue generally before a jury further supports the contrary view because that consequence is precisely what would give the defense the unintended broad practical application.

The prosecution further counters defendant's argument by asserting that one cannot claim the protection of mistake of law under section 15.20 (2) (a) simply by misconstruing the meaning of a statute but must instead establish that the statute relied on actually permitted the conduct in question and was only later found to be erroneous. To buttress that argument, the People analogize New York's official statement defense to the approach taken by the Model Penal Code (MPC). Section 2.04 of the MPC provides:

[388] "Section 2.04. Ignorance or Mistake.* * *"(3) A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when * * * (b) he acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in (i) a statute or other enactment" (emphasis added).

Although the drafters of the New York statute did not adopt the precise language of the Model Penal Code provision with the emphasized clause, it is evident and has long been believed that the Legislature intended the New York statute to be similarly construed. In fact, the legislative history of section 15.20 is replete with references to the influence of the Model Penal Code provision (see, Hechtman, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law § 15.20, at 36; LaFave and Scott, Substantive Criminal Law § 5.1, n 95; Drafting a New Penal Law of New York: An Interview with Richard Denzer, 18 Buffalo L Rev 251, 252 [1968-1969]). The proposition that New York adopted the MPC general approach finds additional support in the comments to section 2.04 (see, Model Penal Code § 2.04, comment 3, n 33, at 279 [Official Draft and Revised Comments 1985]). It is not without significance that no one for over 20 years of this statute's existence has made a point of arguing or noting or holding that the difference in wording has the broad and dramatically sweeping interpretation which is now proposed. Such a turnabout would surely not have been accidentally produced or allowed. New York's drafters may even have concluded that the extra clause in the MPC was mere surplusage in view of the clear exceptionability of the mistake authorization in the first instance. Moreover, adding specified conditions by judicial construction, as the dissenters would have to do to make the mistake exception applicable in circumstances such as these, would be the sheerest form of judicial legislation.

It was early recognized that the "official statement" mistake of law defense was a statutory protection against prosecution based on reliance of a statute that did in fact authorize certain conduct. "It seems obvious that society must rely on some statement of the law, and that conduct which is in fact `authorized' * * * should not be subsequently condemned. The threat of punishment under these circumstances can have no deterrent effect unless the actor doubts the validity of the [389] official pronouncement — a questioning of authority that is itself undesirable" (Note, Proposed Penal Law of New York, 64 Colum L Rev 1469, 1486 [emphasis added]). While providing a narrow escape hatch, the idea was simultaneously to encourage the public to read and rely on official statements of the law, not to have individuals conveniently and personally question the validity and interpretation of the law and act on that basis. If later the statute was invalidated, one who mistakenly acted in reliance on the authorizing statute would be relieved of criminal liability. That makes sense and is fair. To go further does not make sense and would create a legal chaos based on individual selectivity.

In the case before us, the underlying statute never in fact authorized the defendant's conduct; the defendant only thought that the statutory exemptions permitted his conduct when, in fact, the primary statute clearly forbade his conduct. Moreover, by adjudication of the final court to speak on the subject in this very case, it turned out that even the exemption statute did not permit this defendant to possess the weapon. It would be ironic at best and an odd perversion at worst for this court now to declare that the same defendant is nevertheless free of criminal responsibility.

The "official statement" component in the mistake of law defense in both paragraphs (a) and (d) adds yet another element of support for our interpretation and holding. Defendant tried to establish a defense under Penal Law § 15.20 (2) (d) as a second prong. But the interpretation of the statute relied upon must be "officially made or issued by a public servant, agency or body legally charged or empowered with the responsibility or privilege of administering, enforcing or interpreting such statute or law." We agree with the People that the trial court also properly rejected the defense under Penal Law § 15.20 (2) (d) since none of the interpretations which defendant proffered meets the requirements of the statute. The fact that there are various complementing exceptions to section 15.20, none of which defendant could bring himself under, further emphasizes the correctness of our view which decides this case under particular statutes with appropriate precedential awareness.

It must also be emphasized that, while our construction of Penal Law § 15.20 provides for narrow application of the mistake of law defense, it does not, as the dissenters contend, "rule out any defense based on mistake of law." (See, dissenting [390] opn, at 399-400.) To the contrary, mistake of law is a viable exemption in those instances where an individual demonstrates an effort to learn what the law is, relies on the validity of that law and, later, it is determined that there was a mistake in the law itself.

The modern availability of this defense is based on the theory that where the government has affirmatively, albeit unintentionally, misled an individual as to what may or may not be legally permissible conduct, the individual should not be punished as a result. This is salutary and enlightened and should be firmly supported in appropriate cases. However, it also follows that where, as here, the government is not responsible for the error (for there is none except in the defendant's own mind), mistake of law should not be available as an excuse (see, Jeffries, Legality, Vagueness and the Construction of Penal Statutes, 71 Va L Rev 189, 208 [1985]).

We recognize that some legal scholars urge that the mistake of law defense should be available more broadly where a defendant misinterprets a potentially ambiguous statute not previously clarified by judicial decision and reasonably believes in good faith that the acts were legal. Professor Perkins, a leading supporter of this view, has said: "[i]f the meaning of a statute is not clear, and has not been judicially determined, one who has acted `in good faith' should not be held guilty of crime if his conduct would have been proper had the statute meant what he `reasonably believed' it to mean, even if the court should decide later that the proper construction is otherwise." (Perkins, Ignorance and Mistake in Criminal Law, 88 U Pa L Rev 35, 45.) In support of this conclusion Professor Perkins cites two cases: State v Cutter (36 NJL 125) and Burns v State (123 Tex Crim 611, 61 SW2d 512). In both these cases mistake of law was viewed as a valid defense to offenses where a specific intent (i.e., willfully, knowingly, etc.) was an element of the crime charged. In Burns, the court recognized mistake of law as a defense to extortion. The statute defining "extortion" made the "willful" doing of the prohibited act an essential ingredient of the offense. The court, holding that mistake of law is a defense only where the mistake negates the specific intent required for conviction, borrowed language from the Cutter case: "In State v Cutter * * * the court said: `The argument goes upon the legal maxim ignorantia legis neminem excusat. But this rule, in its application to the law of crimes, is subject * * * to certain important exceptions. Where the act done is malum in se, or where the law which [391] has been infringed was settled and plain, the maxim, in its rigor, will be applied; but where the law is not settled, or is obscure, and where the guilty intention, being a necessary constituent of the particular offence, is dependent on a knowledge of the law, this rule, if enforced, would be misapplied'" (Burns v State, 123 Tex Crim, at 613, 61 SW2d, at 513, supra [emphasis added]). Thus, while Professor Perkins states that the defense should be available in cases where the defendant claims mistaken reliance on an ambiguous statute, the cases he cites recognize the defense only where the law was ambiguous and the ignorance or mistake of law negated the requisite intent (see also, People v Weiss, 276 N.Y. 384, supra). In this case, the forbidden act of possessing a weapon is clear and unambiguous, and only by the interplay of a double exemption does defendant seek to escape criminal responsibility, i.e., the peace officer statute and the mistake statute.

We conclude that the better and correctly construed view is that the defense should not be recognized, except where specific intent is an element of the offense or where the misrelied-upon law has later been properly adjudicated as wrong. Any broader view fosters lawlessness. It has been said in support of our preferred view in relation to other available procedural protections: "A statute * * * which is so indefinite that it `either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law' and is unconstitutional. If the court feels that a statute is sufficiently definite to meet this test, it is hard to see why a defense of mistake of law is needed. Such a statute could hardly mislead the defendant into believing that his acts were not criminal, if they do in fact come under its ban * * * [I]f the defense of mistake of law based on indefiniteness is raised, the court is * * * going to require proof * * * that the act was sufficiently definite to guide the conduct of reasonable men. Thus, the need for such a defense is largely supplied by the constitutional guarantee" (Hall and Seligman, Mistake of Law and Mens Rea, 8 U Chi L Rev 641, 667 [1941]).

Strong public policy reasons underlie the legislative mandate and intent which we perceive in rejecting defendant's construction of New York's mistake of law defense statute. If defendant's argument were accepted, the exception would swallow the rule. Mistakes about the law would be encouraged, rather than respect for and adherence to law. There [392] would be an infinite number of mistake of law defenses which could be devised from a good-faith, perhaps reasonable but mistaken, interpretation of criminal statutes, many of which are concededly complex. Even more troublesome are the opportunities for wrongminded individuals to contrive in bad faith solely to get an exculpatory notion before the jury. These are not in terrorem arguments disrespectful of appropriate adjudicative procedures; rather, they are the realistic and practical consequences were the dissenters' views to prevail. Our holding comports with a statutory scheme which was not designed to allow false and diversionary stratagems to be provided for many more cases than the statutes contemplated. This would not serve the ends of justice but rather would serve game playing and evasion from properly imposed criminal responsibility.

Accordingly, the order of the Appellate Division should be affirmed.

HANCOCK, JR., J. (dissenting).

The rule adopted by the majority prohibiting the defense of mistake of law under Penal Law § 15.20 (2) (a) in the circumstances here is directly contrary to the plain dictates of the statute and a rejection of the jurisprudential reforms and legislative policies underlying its enactment. For these reasons, as more fully explained herein, we cannot agree with this decision.

I

The basic difference which divides the court may be simply put. Suppose the case of a man who has committed an act which is criminal not because it is inherently wrong or immoral but solely because it violates a criminal statute. He has committed the act in complete good faith under the mistaken but entirely reasonable assumption that the act does not constitute an offense because it is permitted by the wording of the statute. Does the law require that this man be punished? The majority says that it does and holds that (1) Penal Law § 15.20 (2) (a) must be construed so that the man is precluded from offering a defense based on his mistake of law and (2) such construction is compelled by prevailing considerations of public policy and criminal jurisprudence. We take issue with the majority on both propositions.

There can be no question that under the view that the purpose of the criminal justice system is to punish blameworthiness [393] or "choosing freely to do wrong",^[1] our supposed man who has acted innocently and without any intent to do wrong should not be punished (see, United States v Barker, 514 F.2d 208, 228-229 [Bazelon, Ch. J., concurring]). Indeed, under some standards of morality he has done no wrong at all (Patterson, Cardozo's Philosophy of Law, Part II, 88 U Pa L Rev 156, 169-171 [1939-1940]).^[2] Since he has not knowingly committed a wrong there can be no reason for society to exact retribution. Because the man is law-abiding and would not have acted but for his mistaken assumption as to the law, there is no need for punishment to deter him from further unlawful conduct. Traditionally, however, under the ancient rule of Anglo-American common law that ignorance or mistake of law is no excuse, our supposed man would be punished.

The maxim "ignorantia legis neminem excusat"^[3] finds its roots in Medieval law when the "actor's intent was irrelevant since the law punished the act itself" (United States v Barker, supra, at 228 [Bazelon, Ch. J., concurring]; emphasis in original; see, Keedy, Ignorance and Mistake in the Criminal Law, 22 Harv L Rev 75, 81 [1908]) and when, for example, the law recognized no difference between an intentional killing and one that was accidental (Ames, Law and Morals, 22 Harv L Rev 97, 98 [1908]). Although the common law has gradually evolved from its origins in Anglo-Germanic tribal law^[4] (adding the element of intent [mens rea] and recognizing defenses based on the actor's mental state — e.g., justification, insanity and intoxication) the dogmatic rule that ignorance or mistake of law is no excuse has remained unaltered. Various justifications have been offered for the rule, but all are frankly pragmatic and utilitarian — preferring the interests of society [394] (e.g., in deterring criminal conduct, fostering orderly judicial administration, and preserving the primacy of the rule of law)^[5] to the interest of the individual in being free from punishment except for intentionally engaging in conduct which he knows is criminal (see, White, Reliance on Apparent Authority as a Defense to Criminal Prosecution, 77 Colum L Rev 775, 784-789 [1977]; Perkins, Ignorance and Mistake in Criminal Law, 88 U Pa L Rev 35, 40, 41 [1939]; Ryu and Silving, Error Juris: A Comparative Study, 24 U Chi L Rev 421, 431-434 [1957]; United States v Barker, supra, at 230-232 [Bazelon, Ch. J., concurring]).

Today there is widespread criticism of the common-law rule mandating categorical preclusion of the mistake of law defense (see, e.g., White, op. cit., 77 Colum L Rev 775, 784; Note, Proposed Penal Law of New York, 64 Colum L Rev 1469, 1486; Model Penal Code § 2.04, comment 3, at 274-276 [Official Draft and Revised Comments 1985]). The utilitarian arguments for retaining the rule have been drawn into serious question (see, LaFave and Scott, Substantive Criminal Law § 5.1; Jeffries, Legality, Vagueness, and the Construction of Penal Statutes, 71 U Va L Rev 189, 208, 209 [1985]; White, op. cit., at 785-787; Perkins, op. cit., 88 U Pa L Rev 35, 51-53; United States v Barker, 514 F.2d 208, 228-231 [Bazelon, Ch. J., concurring], supra) but the fundamental objection is that it is simply wrong to punish someone who, in good-faith reliance on the wording of a statute, believed that what he was doing was lawful. It is contrary to "the notion that punishment should be conditioned on a showing of subjective moral blameworthiness" (White, op. cit., at 784). This basic objection to the maxim "ignorantia legis neminem excusat" may have had less force in ancient times when most crimes consisted of acts [395] which by their very nature were recognized as evil (malum in se) (id., at 784). In modern times, however, with the profusion of legislation making otherwise lawful conduct criminal (malum prohibitum), the "common law fiction that every man is presumed to know the law has become indefensible in fact or logic" (id., at 784; see, Note, Proposed Penal Law of New York, op. cit., at 1486; Ryu and Silving, op. cit., 24 U Chi L Rev 421, 433, 434 [1957]; United States v Barker, supra, at 228-232 [Bazelon, Ch. J., concurring]).^[6]

With this background we proceed to a discussion of our disagreement with the majority's construction of Penal Law § 15.20 (2) (a) and the policy and jurisprudential arguments made in support of that construction. There are two grounds for our dissent:

II

Penal Law § 15.20 (effect of ignorance or mistake upon liability), in pertinent part, provides: "2. A person is not relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief that it does not, as a matter of law, constitute an offense, unless such mistaken belief is founded upon an official statement of the law contained in (a) a statute or other enactment".

It is fundamental that in interpreting a statute, a court should look first to the particular words of the statute in question, being guided by the accepted rule that statutory language is generally given its natural and most obvious meaning (see, Price v Price, 69 N.Y.2d 8, 15, 16; McKinney's Cons Laws of NY, Book 1, Statutes §§ 94, 232). Here, there is but one natural and obvious meaning of the statute: that if a defendant can establish that his mistaken belief was "founded upon" his interpretation of "an official statement of the law contained in * * * statute" (Penal Law § 15.20 [2] [a]), he should have a defense. No other natural and obvious meaning has been suggested.

It is difficult to imagine a case more squarely within the wording of Penal Law § 15.20 (2) (a) or one more fitted to what appears clearly to be the intended purpose of the statute than the one before us. For this reason it is helpful to discuss the statute and its apparent intended effect in the light of what defendant contends was his mistaken belief founded on an official statement of the law contained in a statute.

Defendant stands convicted after a jury trial of criminal possession of a weapon in the third degree for carrying a loaded firearm without a license (Penal Law § 265.02). He concedes that he possessed the unlicensed weapon but maintains that he did so under the mistaken assumption that his conduct was permitted by law. Although at the time of his arrest he protested that he was a Federal corrections officer and exempt from prosecution under the statute, defendant was charged with criminal possession of a weapon in the third degree. On defendant's motion before trial the court dismissed the indictment, holding that he was a peace officer as defined [397] by CPL 2.10 (25) and, therefore, exempted by Penal Law § 265.20 from prosecution under Penal Law § 265.02 (94 Misc 2d 367).^[7] The People appealed and the Appellate Division reversed and reinstated the indictment by a 3-2 vote (71 AD2d 346).^[8] Defendant's appeal to this court was dismissed for failure to prosecute and the case proceeded to trial. The trial court rejected defendant's efforts to establish a defense of mistake of law under Penal Law § 15.20 (2) (a). He was convicted and the Appellate Division has affirmed.

Defendant's mistaken belief that, as a Federal corrections officer, he could legally carry a loaded weapon without a license was based on the express exemption from criminal liability under Penal Law § 265.02 accorded in Penal Law § 265.20 (a) (1) (a) to "peace officers" as defined in the Criminal Procedure Law and on his reading of the statutory definition for "peace officer" in CPL 2.10 (25) as meaning a correction officer "of any penal correctional institution" (emphasis added), including an institution not operated by New York State. Thus, he concluded erroneously that, as a corrections officer in a Federal prison, he was a "peace officer" and, as such, exempt by the express terms of Penal Law § 265.20 (a) (1) (a). This mistaken belief, based in good faith on the statute defining "peace officer" (CPL 2.10 [25]), is, defendant contends, the precise sort of "mistaken belief * * * founded upon an official statement of the law contained in * * * a statute or other enactment" which gives rise to a mistake of law defense under Penal Law § 15.20 (2) (a). He points out, of course, that when he acted in reliance on his belief he had no way of foreseeing that a court would eventually resolve the question of the statute's meaning against him and rule that his belief had been mistaken, as three of the five-member panel at the Appellate Division ultimately did in the first appeal (see, People v Marrero, 71 AD2d 346, supra).

[398] The majority, however, has accepted the People's argument that to have a defense under Penal Law § 15.20 (2) (a) "a defendant must show that the statute permitted his conduct, not merely that he believed it did" (respondent's brief, at 26 [emphasis added]). Here, of course, defendant cannot show that the statute permitted his conduct. To the contrary, the question has now been decided by the Appellate Division and it is settled that defendant was not exempt under Penal Law § 265.20 (a) (1) (a). Therefore, the argument goes, defendant can have no mistake of law defense. While conceding that reliance on a statutory provision which is later found to be invalid would constitute a mistake of law defense (see, Model Penal Code § 2.04 [3] [b] [i]), the People's flat position is that "one's mistaken reading of a statute, no matter how reasonable or well intentioned, is not a defense" (respondent's brief, at 27).

Nothing in the statutory language suggests the interpretation urged by the People and adopted by the majority: that Penal Law § 15.20 (2) (a) is available to a defendant not when he has mistakenly read a statute but only when he has correctly read and relied on a statute which is later invalidated (respondent's brief, at 26). Such a construction contravenes the general rule that penal statutes should be construed against the State and in favor of the accused (see, McKinney's Cons Laws of NY, Book 1, Statutes § 271) and the Legislature's specific directive that the revised Penal Law should not be strictly construed but "must be construed according to the fair import of [its] terms to promote justice and effect the objects of the law" (Penal Law § 5.00).^[9]

More importantly, the construction leads to an anomaly: only a defendant who is not mistaken about the law when he acts has a mistake of law defense. In other words, a defendant can assert a defense under Penal Law § 15.20 (2) (a) only when his reading of the statute is correct — not mistaken. Such construction is obviously illogical; it strips the statute of the very effect intended by the Legislature in adopting the mistake [399] of law defense. The statute is of no benefit to a defendant who has proceeded in good faith on an erroneous but concededly reasonable interpretation of a statute, as defendant presumably has. An interpretation of a statute which produces an unreasonable or incongruous result and one which defeats the obvious purpose of the legislation and renders it ineffective should be rejected (see, McKinney's Cons Laws of NY, Book 1, Statutes §§ 96, 143, 144, 145).

Finally, the majority's disregard of the natural and obvious meaning of Penal Law § 15.20 (2) (a) so that a defendant mistaken about the law is deprived of a defense under the statute amounts, we submit, to a rejection of the obvious legislative purposes and policies favoring jurisprudential reform underlying the statute's enactment. It is self-evident that in enacting Penal Law § 15.20 (2) as part of the revision and modernization of the Penal Law (L 1965, ch 1030) the Legislature intended to effect a needed reform by abolishing what had long been considered the unjust archaic common-law rule totally prohibiting mistake of law as a defense. Had it not so intended it would simply have left the common-law rule intact. In place of the abandoned "ignorantia legis" common-law maxim the Legislature enacted a rule which permits no defense for ignorance of law but allows a mistake of law defense in specific instances, including the one presented here: when the defendant's erroneous belief is founded on an "official statement of the law" (see, Note, Proposed Penal Law of New York, 64 Colum L Rev 1469, 1485, 1486).

This reform, like the changes adopted in Model Penal Code § 2.04 (3) and those proposed by various legal commentators, was prompted by the prevailing dissatisfaction with the common-law rule (see, Model Penal Code § 2.04, comment 3, at 274-276 [Official Draft and Revised Comments 1985]; Note, op. cit., 64 Colum L Rev 1469, 1485, 1486). Both the Model Penal Code and Penal Law § 15.20 (2) accept the general concept that the outright prohibition of the mistake of law defense under the common law should be replaced with a rule permitting "a limited defense based on a reasonable belief on the part of the defendant that the law is such that his conduct does not constitute an offense" (Model Penal Code § 2.04, comment 3, at 274 [Official Draft and Revised Comments 1985]; see, Hechtman, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law § 15.20, at 36-37).

The majority construes the statute, however, so as to rule [400] out any defense based on mistake of law. In so doing, it defeats the only possible purpose for the statute's enactment and resurrects the very rule which the Legislature rejected in enacting Penal Law § 15.20 (2) (a) as part of its modernization and reform of the Penal Law. It is fundamental that a construction of a statute which does not further the statute's object, spirit and purpose must be rejected (see, Price v Price, 69 N.Y.2d 8, 16, supra; Matter of Petterson v Daystrom Corp., 17 N.Y.2d 32, 38, 39; Matter of New York Post Corp. v Leibowitz, 2 N.Y.2d 677, 685, 686; People v Ryan, 274 N.Y. 149, 152; McKinney's Cons Laws of NY, Book 1, Statutes § 96).

Although expressing its evident conviction that the statute should be treated as an "exceptional exculpatory concept * * * intended to be a very narrow escape valve" (majority opn, at 387), the majority cites no language in the statute or in the legislative history supporting its views or the construction of Penal Law § 15.20 (2) (a) which seems so contrary to the statute's plain language and evident purpose. Despite the assertion that such construction reflects "appropriate precedential awareness" (id., at 389), the majority cites no precedential authority.

Instead, the majority bases its decision on an analogous provision in the Model Penal Code and concludes that despite its totally different wording and meaning Penal Law § 15.20 (2) (a) should be read as if it were Model Penal Code § 2.04 (3) (b) (i). But New York in revising the Penal Law did not adopt the Model Penal Code. As in New Jersey, which generally adopted the Model Penal Code but added one section which is substantially more liberal,^[10] New York followed parts of the Model Penal Code provisions and rejected others. In People v Goetz (68 N.Y.2d 96), we said that the Legislature's rejection of the verbatim provisions of the Model Penal Code was crucial in determining its intent in drafting the statute.^[11] The significance [401] of the alterations here can be no different.

While Penal Law § 15.20 (2) and Model Penal Code § 2.04 are alike in their rejection of the strict common-law rule, they are not alike in wording and differ significantly in substance. The Model Penal Code provides a limited defense for ignorance of the law (Model Penal Code § 2.04 [3] [a]). Penal Law § 15.20 (2) omits any such defense. In respect to the defense based upon an actor's reliance on an official statement of law contained in a statute the Model Penal Code and the New York statute are totally dissimilar (compare, Model Penal Code § 2.04 [3] [b] [i], to Penal Law § 15.20 [2] [a]). The Model Penal Code does not permit a defense for someone who acts in good faith upon a mistaken belief that a specific statute authorizes his conduct.^[12] The defense is limited to an act in reliance on an official statement of law in a statute "afterward determined to be invalid or erroneous" (Model Penal Code § 2.04 [3] [b]; emphasis added). The New York statute, in contrast, specifically permits the defense when the actor proceeds under "a mistaken belief" that his conduct does not "constitute an offense" when that "mistaken belief is founded upon an official statement of the law contained in * * * a statute" (Penal Law § 15.20 [2] [a]; emphasis added).

Thus, the precise phrase in the Model Penal Code limiting the defense under section 2.04 (3) (b) (i) to reliance on a statute "afterward determined to be invalid or erroneous" which, if present, would support the majority's narrow construction of the New York statute, is omitted from Penal Law § 15.20 (2) (a). How the Legislature can be assumed to have enacted the very language which it has specifically rejected is not explained (see, People v Goetz, 68 N.Y.2d 96, 109, 110, supra; McKinney's Cons Laws of NY, Book 1, Statutes §§ 94, 240, at 413).

As an alternate interpretation of Penal Law § 15.20 (2) (a) the majority suggests that the Legislature intended that the statute should afford a defense only in cases involving acts [402] mala in se such as People v Weiss (276 N.Y. 384 [involving kidnapping charges]) "where specific intent is an element of the offense" (majority opn, at 391). Again such construction is at odds with the plain wording of Penal Law § 15.20 (2) (a) and finds no support in the statutory history or the literature. There are, moreover, other fundamental objections to such construction which, we believe, rule out any possibility that the Legislature could have intended it. The essential quality of evil or immorality inherent in crimes mala in se (murder, robbery, kidnapping, etc.) is incompatible with the notion that the actor could have been operating "under a mistaken belief that [his conduct] [did] not, as a matter of law, constitute an offense" (Penal Law § 15.20 [2] [a]). There are no policy or jurisprudential reasons for the Legislature to recognize a mistake of law defense to such crimes. On the contrary, it is not with such inherently evil crimes but with crimes which are mala prohibita — i.e., "the vast network of regulatory offenses which make up a large part of today's criminal law" (LaFave and Scott, Substantive Criminal Law § 5.1, at 587-588; see, White, op. cit., 77 Colum L Rev 775, 784) — where reasons of policy and fairness call for a relaxation of the strict "ignorantia legis" maxim to permit a limited mistake of law defense.

Nor does it seem possible that the Legislature could have intended to permit a mistake of law defense only in the limited circumstance where it had already been permitted prior to the enactment of the statute, i.e., to negate a specific element of the charge (see, People v Weiss, supra). Such a reading, contrary to the statute's plain meaning, makes Penal Law § 15.20 (2) (a) superfluous. While it is quite true that New York has followed the Model Penal Code in codifying the "ignorantia legis" maxim as the basic rule (see, majority opn, at 387; dissenting opn, at 395-396) we are concerned here not with the basic rule but with the modifications and exceptions to that rule enacted in Penal Law § 15.20 (2). It is only through these limited exceptions that the easing of the common-law rule is effected. Reading the statute merely as a codification of People v Weiss (supra) would amount to a total rejection of the legislative purpose of effecting this needed jurisprudential reform. The interpretation is contrary to accepted canons of statutory construction (McKinney's Cons Laws of NY, Book 1, Statutes §§ 94, 95, 96, 143, 145).

[403]

III

Any fair reading of the majority opinion, we submit, demonstrates that the decision to reject a mistake of law defense is based on considerations of public policy and on the conviction that such a defense would be bad, rather than on an analysis of CPL 15.20 (2) (a) under the usual principles of statutory construction (see, majority opn, at 390-391). The majority warns, for example, that if the defense were permitted "the exception would swallow the rule"; that "[m]istakes about the law would be encouraged"; that an "infinite number of mistake of law defenses * * * could be devised"; and that "wrongminded individuals [could] contrive in bad faith solely to get an exculpatory notion before the jury." (Majority opn, at 391, 392.)

These considerations, like the People's argument that the mistake of law defense "`would encourage ignorance where knowledge is socially desired'" (respondent's brief, at 28), are the very considerations which have been consistently offered as justifications for the maxim "ignorantia legis". That these justifications are unabashedly utilitarian cannot be questioned. It could not be put more candidly than by Justice Holmes in defending the common-law maxim more than 100 years ago: "Public policy sacrifices the individual to the general good * * * It is no doubt true that there are many cases in which the criminal could not have known that he was breaking the law, but to admit the excuse at all would be to encourage ignorance where the law-maker has determined to make men know and obey, and justice to the individual is rightly outweighed by the larger interests on the other side of the scales" (Holmes, The Common Law, at 48 [1881]; emphasis added). Regardless of one's attitude toward the acceptability of these views in the 1980's, the fact remains that the Legislature in abandoning the strict "ignorantia legis" maxim must be deemed to have rejected them.

We believe that the concerns expressed by the majority are matters which properly should be and have been addressed by the Legislature. We note only our conviction that a statute which recognizes a defense based on a man's good-faith mistaken belief founded on a well-grounded interpretation of an official statement of the law contained in a statute is a just law. The law embodies the ideal of contemporary criminal jurisprudence "that punishment should be conditioned on a showing of subjective moral blameworthiness" (White, op. cit., 77 Colum L Rev 775, 784).

It is no answer to protest that the defense may become a [404] "false and diversionary stratagem[]" or that "wrongminded individuals [could] contrive" an "infinite number of mistake of law defenses" (majority opn, at 392); for it is the very business of the courts to separate the true claims from the false. Such in terrorem arguments should have no more force here than similar objections which doubtless were voiced with equal intensity to the long-accepted defenses of justification, accident, mistake of fact, insanity, entrapment, duress and intoxication. As Justice Holmes wrote in commenting on John Austin's argument that permitting the mistake of law defense would present courts with problems they were not prepared to solve: "If justice requires the fact to be ascertained, the difficulty of doing so is no ground for refusing to try" (Holmes, The Common Law, at 48 [1881]).

IV

If defendant's offer of proof is true, his is not the case of a "free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong" (Pound, Introduction to Sayre, Cases on Criminal Law [1927], quoted in Morissette v United States, 342 US 246, 250, n 4). He carried the gun in the good-faith belief that, as a Federal corrections officer, it was lawful for him to do so under the words of the statute (Penal Law § 265.20 [a] [1] [former a]; CPL 2.10, 1.20 [see, dissenting opn, at 397, n 7). That his interpretation of the statute as exempting corrections officers (whether or not employed in a State facility) was a reasonable one can hardly be questioned. If the statute does not plainly say that corrections officers are exempt, as defendant contends, the statute at the very least is ambiguous and clearly susceptible to that interpretation. Indeed, Supreme Court in dismissing the indictment (94 Misc 2d 367) and two of the five-member panel in the first appeal to the Appellate Division (71 AD2d 346) read the statute as it was read by defendant and the police officials and others whose opinions he sought. We believe that under our present Penal Law and the policies underlying its revision (L 1965, ch 1030) this defendant should not be found guilty of violating Penal Law § 265.02 if he can establish that his conduct was based on a good-faith mistake of law founded on the wording of the statute.

We do not believe that permitting a defense in this case will produce the grievous consequences the majority predicts. The unusual facts of this case seem unlikely to be repeated. [405] Indeed, although the majority foresees "an infinite number of mistake of law defenses" (majority opn, at 392), New Jersey, which adopted a more liberal mistake of law statute in 1978, has apparently experienced no such adversity (no case construing that law is mentioned in the most recent annotation of the statute; see, dissenting opn, at 400, n 10).^[13] Nor is there any reason to believe that courts will have more difficulty separating valid claims from "diversionary stratagem[s]" in making preliminary legal determinations as to the validity of the mistake of law defense than of justification or any other defense.

But these questions are now beside the point, for the Legislature has given its answer by providing that someone in defendant's circumstances should have a mistake of law defense (Penal Law § 15.20 [2] [a]). Because this decision deprives defendant of what, we submit, the Legislature intended that he should have, we dissent.

There should be a reversal and defendant should have a new trial in which he is permitted to assert a defense of mistake of law under Penal Law § 15.20 (2) (a).

Order affirmed.

[1] "Historically, our substantive criminal law is based upon a theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong" (Pound, Introduction to Sayre, Cases on Criminal Law [1927], quoted in Morissette v United States, 342 US 246, 250, n 4).

[2] Kant, Philosophy of Law, at 13, 14, 28, 37 (Hastie trans 1887); cf., Bentham, Theory of Legislation, at 1-4 (Ogden ed 1931).

[3] Although "ignorantia legis" does not literally refer to mistake of law, the maxim is ordinarily understood, as we use it here, to include both ignorance and mistake of law (see, e.g., Jeffries, Legality, Vagueness, and the Construction of Penal Statutes, 71 Va L Rev 189, 208 [1985]; Note, Proposed Penal Law of New York, 64 Colum L Rev 1469, 1485 [1977]; Keedy, Ignorance and Mistake in the Criminal Law, 22 Harv L Rev 75, 81 [1908]).

[4] See, 2 Holdsworth, History of English Law, at 50-54, 258-259 (4th ed 1936); 3 Holdsworth, at 310-314, 371-375; United States v Barker, 514 F.2d 208, 228 (Bazelon, Ch. J., concurring).

[5] The societal interests mentioned in the literature include: facilitating judicial administration, encouraging knowledge and obedience to law and preservation of integrity of legal norms (77 Colum L Rev 775, 787). Justice Holmes, for example, stressed society's interests in deterrence, noting that acceptance of ignorance or mistake of law as a defense would encourage ignorance at the expense of the public good (see, Holmes, The Common Law, at 48 [1881]; Ellis v United States, 206 US 246, 257). John Austin justified "ignorantia legis" on the ground that if the defense were permitted, the courts would be confronted with questions about defendant's mental state which they could not solve (Austin, Lectures on Jurisprudence, at 496-501 [4th ed 1873]; see, White, op. cit., 77 Colum L Rev, at 785, 786; People v O'Brien, 96 Cal 171, 176, 31 Pac 45, 47 [1892]). For a discussion of the societal interest in maintaining primacy of the law as a reason for the common-law maxim, see, Hall, General Principles of Criminal Law, at 382, 383 (2d ed 1960).

[6] Professor LaFave notes the unfairness of never recognizing ignorance or mistake of law as a defense to offenses which are purely regulatory: "The early criminal law was `well integrated with the mores of the time', so that `a defendant's mistake as to the content of the criminal law * * * would not ordinarily affect his moral guilt' [n omitted]. But the vast network of regulatory offenses which make up a large part of today's criminal law does not stem from the mores of the community, and so `moral education no longer serves us as a guide as to what is prohibited' [n omitted]. Under these circumstances, where one's moral attitudes may not be relied upon to avoid the forbidden conduct, it may seem particularly severe for the law never to recognize ignorance or mistake of the criminal law as a defense. Moreover, some would question whether it is desirable to characterize as criminal an individual who has not demonstrated any degree of social dangerousness, that is, a person whose conduct is not anti-social because (i) he reasonably thought the conduct was not criminal, and (ii) the conduct is not by its nature immoral" (LaFave and Scott, Substantive Criminal Law § 5.1, at 587-588; emphasis in original). Dissatisfaction with the traditional common-law rule totally prohibiting a mistake of law defense may be seen in decisions in New York and other jurisdictions recognizing the defense in certain circumstances even in the absence of an authorizing statute (see, e.g., People v Weiss, 276 N.Y. 384, 389 [permitting defense to negate an essential element of the People's proof]; see also, United States v Barker, 514 F.2d 208, 228 [Bazelon, Ch. J., concurring]; State v Cutter, 36 NJL 125; Ostrosky v State, 704 P2d 786 [Alaska Ct App]).

[7] By virtue of Penal Law § 265.20 (a) (1) (a) "peace officers", as defined in the CPL 1.20, are expressly exempt from criminal liability under Penal Law § 265.02. CPL 1.20 incorporates the definition of "peace officer" in CPL 2.10, which includes "correction officers of any state correction facility or of any penal correctional institution". Penal Law § 265.20 (a) was amended in 1980 to remove "peace officer" from (a) (1) (a) and to include "peace officer" in (a) (1) (c) (L 1980, ch 843, §§ 44, 45).

[8] The majority held that Penal Law § 265.20 (a) (1) (a) included only State correction officers. The dissenters agreed with Supreme Court that under the unambiguous language of CPL 2.10 defendant was a "peace officer" within the meaning of Penal Law § 265.20 (a) (1) (a) and exempt from prosecution under Penal Law § 265.02.

[9] It is suggested that Penal Law § 15.20 (2) (a) should be read as intended to apply when "it is determined that there was a mistake in the law itself." (Majority opn, at 390; emphasis in original.) Such interpretation is refuted by the language of the statute which provides a defense not when there is a "mistake in the law", but, under particular circumstances, when the defendant is mistaken, i.e., when he acts "under a mistaken belief that [his conduct] does not, as a matter of law, constitute an offense" (Penal Law § 15.20 [2] [a]).

[10] In addition to permitting defenses based on ignorance of the law and reasonable reliance on official statements afterward determined to be invalid or erroneous, the New Jersey statute provides a defense, under the following broad provision, when: "(3) The actor otherwise diligently pursues all means available to ascertain the meaning and application of the offense to his conduct and honestly and in good faith concludes his conduct is not an offense in circumstances in which a law-abiding and prudent person would also so conclude" (NJ Stat Ann § 2C:2-4 [c] [3]).

[11] In Goetz (68 N.Y.2d 96, 109), we noted of the Model Penal Code provision on justification: "While using the Model Penal Code provisions on justification as general guidelines, however, the drafters of the new Penal Law did not simply adopt them verbatim." This difference in wording — involving the addition of the word "reasonable" to Penal Law § 35.15 — we found to be a "crucial" distinction between the Model Penal Code and the Penal Law (id., at 110).

[12] Model Penal Code § 2.04 (3) (b) (i) states: "A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when: * * * (b) he acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in (i) a statute or other enactment".

[13] New York's experience has been similar. It is stated that "for over 20 years of this statute's existence" (majority opn, at 388) no one has sought to predicate a defense on the statute. That history is significant not as demonstrating that Penal Law § 15.20 (2) does not plainly afford a mistake of law defense, as the majority suggests, but simply that, as in New Jersey, the enactment of the statutory defense has not resulted in an "infinite number of mistake of law defenses" (id., at 392).