National State Law Survey: Mistake of Age Defense 1

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1 1 State 1 Is there a buyerapplicable trafficking or CSEC law? 2 Does a buyerapplicable CSEC law expressly prohibit a mistake of age defense in prosecutions for buying a commercial sex act with any minor under 18? Buyer-applicable law(s) that prohibit a mistake of age defense Mens Rea for buyerapplicable CSEC law 3 Alabama Alaska Ala. Code 13A (Human trafficking in the first degree) CSEC = knowingly or Arizona (only under 15 4 ) Ariz. Rev. Stat. Ann (Child prostitution) Trafficking = intent or knowledge CSEC = knowingly Arkansas Ark. Code Ann (Trafficking of persons) CSEC = knows or has reason to know, knowingly, or California Colorado Colo. Rev. Stat. Ann (Human trafficking of a minor for sexual servitude), (Soliciting a child for prostitution), (Inducement of child prostitution), and (Patronizing a prostituted child) CSEC = knew or should have known, knows or reasonably should know; knowingly, knowledge, or intentionally, should reasonably know, or Connecticut Conn. Gen. Stat. CSEC = knew or should 1 The information compiled in this survey chart is based on the 2016 Protected Innocence Challenge- State Analysis and Recommendation Reports and reflects legislation enacted on or before August 1, Responses with an asterisk (*) indicate that, while the buyer-applicable CSEC law does not expressly prohibit a mistake of age defense, another statute expressly includes the buyer-applicable CSEC offense within a list of offenses prohibiting such a defense. 3 Analysis of the relevant mens rea for trafficking and CSEC statutes does not analyze case law or generally applicable statutes relating to mens rea. 4 Ariz. Rev. Stat. Ann (B) (Child prostitution) prohibits a mistake of age defense when the minor is under 15. If the victim is 15 17, a mistake of age defense is not prohibited, and the penalty decreases substantially if the prosecution fails to prove that the defendant knew or should have known the victim s age.

2 2 Delaware (Patronizing a prostitute) have known, knowingly, or Del. Code Ann. tit. 11, (trafficking (Patronizing a victim ) of sexual servitude) DC CSEC = intent or Florida Fla. Stat. Ann (Human trafficking) or in reckless disregard CSEC = knowing, knowingly, knowledge, or Georgia Ga. Code Ann (Trafficking of persons for labor or sexual servitude) CSEC = knowingly or Hawaii Haw. Rev. Stat. Ann (Solicitation of a minor for prostitution) CSEC = intentionally, knowingly, recklessly, knowing or having reason to know, reckless disregard, intent, or Idaho Trafficking = CSEC = knowingly and willfully or Illinois knowledge, or Indiana or intentionally Iowa Iowa Code 710A.2 (Human trafficking) Trafficking = knowingly 5 The core human trafficking law, Del. Code Ann. tit. 11, 787 (Trafficking an individual, forced labor and sexual servitude) is largely inapplicable to buyers, but Del. Code Ann. tit. 11, 787 (Patronizing a victim of sexual servitude), an offense within the human trafficking chapter, is applicable to buyers.

3 3 CSEC = Kansas 6 Trafficking = intentionally or knowingly CSEC = knowingly or Kentucky * 7 Ky. Rev. Stat. Ann (Human trafficking) and 529,110 (Promoting human trafficking Trafficking = intentionally knowing, or Louisiana Maine Maryland 8 La. Rev. Stat. Ann. 14:46.2 (Human trafficking, 14:46.3 (Trafficking of children for sexual purposes), 14:81.1 (Pornography involving juveniles), 14:82.1 (Prostitution; persons under eighteen; additional offenses), and 14:89.2 (Crime against nature by solicitation) Me. Rev. Stat. Ann. tit. 17- A, 855 (Patronizing prostitution of minor or person with mental disability) knowing, knowledge, knows or reasonable person would know, intent, or knowing, knows, intentionally, intending, intent, or CSEC = knowingly or intent Massachusetts knowing, knowledge, or intent Michigan Mich. Comp. Laws Ann e (Forced labor or services; prohibited Trafficking = 6 However, Kan. Stat. Ann (Culpable mental state; exclusions) states, Proof of a culpable mental state does not require proof... that the accused had knowledge of the age of the minor, even though age is a material element of the crime with which the accused is charged. 7 Ky. Rev. Stat. Ann (Ignorance of human trafficking minor victim's actual age not a defense) provides, [i]n any prosecution under KRS [Human trafficking] or [Promoting human trafficking] involving commercial sexual activity with a minor, it shall not be a defense that the defendant was unaware of the minor's actual age. Additionally, Ky. Rev. Stat. Ann (1) (Presumption as to minority) creates a rebuttable presumption for some CSEC prosecutions that any person who appears to be under the age of eighteen (18), or under the age of sixteen (16), shall be presumed to be under the age of eighteen (18), or under the age of sixteen (16), as the case may be. 8 While buyers may be convicted under Me. Rev. Stat. Ann. tit. 17-A, 855 (Patronizing prostitution of minor or person with mental disability) without regard to whether they knew that the child was a minor, enhanced liability applies if the offender knew the victim was under 18. Accordingly, a defendant may assert a mistake of age defense to avoid the enhanced penalty, but not ultimate liability.

4 4 conduct as relates to age of minor) CSEC = knowingly or Minnesota Minn. Stat. Ann (Patrons; prostitutes; housing individuals engaged in prostitution; penalties) and (Electronic solicitation of children) CSEC = intentionally or knows or has reason to know Mississippi Miss. Code Ann (Anti-Human Trafficking Act; prohibited conduct; penalty), knowing, knows or reasonably should have known, or intending intentionally, intent, or knowledge or reasonable cause to know Missouri Mo. Rev. Stat (Sexual trafficking of a child--penalty), (Sexual trafficking of a child under age twelve affirmative defense not allowed, when penalty), and (Patronizing prostitution) CSEC = knowingly or Montana Mont. Code Ann (Sexual servitude), (Patronizing victim of sexual servitude) and (Prostitution) Trafficking = purposely or knowingly CSEC = purposely, knowingly, or Nebraska intentionally, negligently, or Nevada Nev. Rev. Stat. Ann (Sex trafficking) Trafficking = knowing or CSEC = knowingly or

5 5 New Hampshire Trafficking = knowing or believing New Jersey N.J. Stat. Ann. 2C:13-8 (Human trafficking), and 2C:34-1 (Prostitution and related offenses) CSEC = knowingly or knows or has reason to know New Mexico Trafficking = intent or knowledge intentionally, or intent New York CSEC = knowingly or rth Carolina N.C. Gen. Stat (Human trafficking) and (Sexual servitude), willfully, or in reckless disregard CSEC = willfully, knowing, intentionally, or rth Dakota Ohio (trafficking 9 ) Ohio Rev. Code Ann (Compelling prostitution) knows or has reckless disregard, or Oklahoma knowledge or reasonable cause to believe, willfully or maliciously, or Oregon (only under ) O.R.S (Purchasing sex with a minor) or knows or recklessly disregards CSEC = knowingly or 9 The core human trafficking law, N.D. Cent. Code (Trafficking an individual), and the sex trafficking law, N.D. Cent. Code (Sexual servitude), do not apply to buyers, but two offenses within the human trafficking chapter are applicable to buyers. 10 O.R.S (Purchasing sex with a minor) prohibits a mistake of age defense if the victim was under the age of 16 or if the defendant has a prior conviction under this section.

6 6 Pennsylvania (only under ) 18 Pa. Cons. Stat (Trafficking in individuals) and 3013 (Patronizing a victim of sexual servitude) Trafficking = knows or recklessly disregard knowing, intentionally, or Rhode Island R.I. Gen. Laws Ann (Sex trafficking of a minor) Trafficking = CSEC = knowingly or South Carolina South Dakota Tennessee S.C. Code Ann (Trafficking in persons), (Participating in prostitution of a minor defined; defenses; penalties), and (Second degree sexual exploitation of a minor defined; presumptions; defenses; penalties) Trafficking = knowing knowing, or Trafficking = knowing * 12 Tenn. Code Ann (Patronizing prostitution) and (Offense of soliciting sexual exploitation of a minor Exploitation of a minor by electronic means) intent, or Texas Tex. Penal Code Ann. 20A.02 (Trafficking of persons) and (Prostitution) intent, or Utah * 13 Utah Code Ann (Aggravated human trafficking and aggravated human smuggling Trafficking = Pa. Cons. Stat (Evidence and defenses to human trafficking) provides, [e]xcept as provided in section 3102 (relating to mistake as to age), evidence of a defendant's lack of knowledge of a person's age, or a reasonable mistake of age, is not a defense for a violation of this chapter involving the sexual servitude of a minor. However, 18 Pa. Cons. Stat restricts the prohibition to cases where the victim was 14 years of age or younger. 12 Tenn. Code Ann (Ignorance or mistake of fact) provides, [i]t shall not be a defense to prosecution for a violation of [Patronizing prostitution] or [Offense of soliciting sexual exploitation of a minor Exploitation of a minor by electronic means] that he person charged was ignorant or mistaken as to the age of the minor. 13 Utah Code Ann (Mistake as to victim s age is not a defense) expressly prohibits a mistake of age defense for violations of Utah Code Ann (Aggravated human trafficking and aggravated human smuggling Penalties), (Human trafficking of a child Penalties), (Patronizing a prostitute), and (Sexual solicitation Penalty).

7 7 Vermont Virginia Penalties), (Human trafficking of a child Penalties), (Patronizing a prostitute), and (Sexual solicitation Penalty). intent, or knowing, intentionally, intent, or Washington * 14 Wash. Rev. Code Ann. 9.68A.100 (Commercial sexual abuse of a minor) Trafficking = knowing or reckless disregard knowing, knows, or West Virginia and willfully knowing, knowledge, intent, or Wisconsin CSEC = knowledge, intentionally, or intent Wyoming Totals: 51 states have a buyerapplicable CSEC law. 28 states have a buyerapplicable CSEC law that expressly prohibits a mistake of age defense in prosecutions for buying a commercial sex act with any minor under 18. Trafficking = intentionally or knowingly 14 Wash. Rev. Code Ann. 9.68A.110(3) (Certain defenses barred, permitted) provides, [i]n a prosecution under RCW A.100 [Commercial sexual abuse of a minor]... it is not a defense that the defendant did not know the alleged victim's age.