Victim’s Misstated Age on MySpace Could Contribute to Mistake of Age Defense–State v. Berry

By Eric Goldman

State v. Berry, 2010 WL 4226707 (Or. App. Ct. Oct. 27, 2010)

This is yet another case involving sex with an underage girl where the defendant believed she was older than she actually was. See my previous comprehensive post on mistake-of-age defenses and MySpace.

The victim in this case was actually 13 years old. The appellate court’s opinion omits some key facts, like the defendant’s age and how the defendant and victim found each other. All we know is that a jury convicted the defendant of sex offenses predicated on having sex with a victim under 14.

The trial judge refused to let the jury know of the lesser-included offense of having sex with a victim under 18 (less serious than having sex with a minor under 14), even though the defendant argued that he believed the victim was older than 13. In support of those beliefs, the defendant pointed to two pieces of admissible evidence:

1) the victim’s MySpace age claimed she was 15

2) the victim claimed she was 17 in an email to the defendant

The prosecution subsequently admitted that it was an error not to let the jury know of the lesser-included offense. Nevertheless, the prosecution tried to uphold the conviction because the error wouldn’t have affected the jury’s decision. With both the prosecutor and defendant agreeing that an error occurred, not surprisingly the appellate court rejects the prosecution’s attempts to sustain the verdict and instead remands the case for a new jury trial.

I don’t have a good handle on all of these mistake-of-age cases involving MySpace, but this is the first case I can remember where a defendant’s mistake-of-age defense predicated on a MySpace-reported age made a difference to a legal result. It’s unclear if the defendant will actually get the benefit of the defense on retrial (i.e., the jury may not find his evidence persuasive), but I believe he’s gotten farther with the social networking site-based mistake-of-age defense than any other case I’ve seen.