Reply to Has Charles Allen commented recently on the criminal code re-write?

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[quote=Anonymous]Also, what sicko would propose to make it easier to commit statutory rape:

[i]The RCCA proposes departing from long-standing District law that mistake of age is not a legal defense to child sexual abuse,[3] and creating an affirmative defense to felony child sexual abuse where: (1) the victim is 14 or 15 years old (or 16 or 17, in the case of sexual abuse by a person in a position of trust or authority); (2) the defendant reasonably believes the victim is 16 or older (or 18 or older, in the case of sexual abuse by a person in a position of trust or authority); and (3) the reasonable belief is based on an oral or written statement that the victim made to the defendant about the victim’s age. See RCCA § 22A-2302(g)(2)-(3). For less severe forms of child sexual abuse, the government would be required to prove, as an element, that the defendant was reckless as to the victim’s age. See RCCA § 22A-2304(a)(1)(A) (Sexually suggestive conduct with a minor); RCCA § 22A-2305(a)(2)(A) (Enticing a minor into sexual conduct); RCCA § 22A-2306(a)(2) (Arranging for sexual conduct with a minor or person incapable of consenting).

However, because this defense would allow for the introduction of evidence regarding the defendant’s objectively “reasonable belief” as to the age of the victim, the existence of this defense could, practically, create a legally sanctioned justification for the defense to introduce evidence that would otherwise have no probative value at trial. For example, to show an objectively “reasonable belief,” the defendant may seek to elicit testimony relating to the child victim’s appearance, including the child victim’s physical development, maturity, and clothing, or photos of how the child victim presents themselves on social media. This testimony would be elicited to show why the victim appeared to be older than the victim’s true age. Allowing evidence of the defendant’s “reasonable belief” would allow this type of demeaning and humiliating evidence to be deemed probative and, thus, admissible at trial. If this proposal goes into effect, a defendant may also seek to introduce evidence currently precluded by the Rape Shield Law[4] regarding the victim’s prior sexual behavior to validate their “reasonable belief” that the child victim was of consenting age. Such evidence could include, for example, the victim’s known history of engaging in sexual acts with adults, prior pregnancies or births, involvement in prostitution and/or other sexually related behavior of an adult nature that suggested to the defendant that the victim was of a legally mature age. This evidence is the exact type that exposes the extremely intimate life of the victim (and here, a child victim) that the Rape Shield Law was specifically designed to exclude except in the most unusual cases where the probative value of the evidence is precisely demonstrated. We account for compelling fact patterns in exercising our charging discretion, where—despite the strict liability for this offense—a person may have reasonably believed that the victim was not underage. Allowing for this legal defense, however, may permit the defendant to elicit evidence at trial in a manner that is inappropriate, unnecessarily humiliating for the sexual assault victim, and directly contrary to the compelling policy reasons behind the Rape Shield Law.[5][/i]
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