“Mistake of Age” Defense When a Sexual Abuse Victim Inflated Her Age on MySpace

By Eric Goldman

I continue to see a troubling number of cases in Westlaw that involve an overaged male and underaged female having illegal sex, in some case facilitated by a social networking site (especially MySpace). In the past few weeks, I saw four cases where the victim’s self-reported age on her MySpace profile was raised as part of a defendant’s unsuccessful “mistake of age” defense to statutory rape charges.

In State v. Breathette, 2010 WL 702446 (N.C. App. Ct. March 2, 2010), the court rejected a “mistake of age” defense to a variant of statutory rape charges even when the victim had misreported her age to MySpace.

State v. J.S., 2010 WL 765367 (Wash. App. Ct. March 8, 2010), is another mistake of age case. In this case, a 16 year old boy had sex with a 13 year old girl he met on MySpace. She had reported her age as 17 on MySpace and 15 in person, and she said she was in middle school The boy believed she was actually 14. The crime applies to sex when the parties’ age are more than 3 years different, and it is a defense if the defendant proves that “the defendant reasonably believed the alleged victim to be [of legal age] based upon declarations as to age by the alleged victim.” The court rejected the defense because “presented with the victim’s conflicting and inconsistent declarations as to her age, the trial court is not compelled to find that the defendant reasonably believed that one of the conflicting statements must be true.”

Both cases brought to mind US v. Haile, where an undercover cop had (mis)reported three different ages. I found that case more troubling because the cop, not a victim, communicated inconsistent information when he could have easily provided consistent information. Further, because no sex actually occurred, the defendant never got a chance to confirm the putative victim’s age face-to-face before revealing his true intent.

Recently there were also two cases where the victim misreported her age in MySpace but the defendant never saw that misrepresentation. In these cases, the court refused to admit the MySpace evidence. See State v. Bol, 2010 WL 934113 (Minn. App. Ct. March 16, 2010) and People v. Avelar, 2010 WL 1079416 (Cal. App. Ct. March 25, 2010)

Students, if you are looking for a paper topic for the summer, I think it might be worth exploring the legal implications of sexual abuse victims’ misreporting their age. In particular, I would love to explore the hypotheses that (a) MySpace’s efforts to screen out 13 and 14 year olds implicitly encourages teens to inflate their self-reported ages, and (b) this age inflation exacerbates the number of underage sex crimes (I have a few theories why this might be the case). If these hypotheses were true, the state AGs’ deals with MySpace and Facebook to block young teens actually could be spectacularly counterproductive and bad social policy.

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