In West v. State, the Georgia Court of Appeals held that the defendant’s mistaken belief that the alleged victim was 17 years old was not a defense to the charges of child molestation and statutory rape. The Court held that its previous decisions, in which it alluded to the possibility of a mistake of fact defense in these cases, were not controlling and did not expressly permit such a defense.
Citing to its 2007 decision in Haywood v. State, the Court ruled that “knowledge of the victim’s age is not an element of either statutory rape or child molestation and, thus, was not relevant information in the trial.” In Haywood, the Court further held that evidence regarding the girl’s contradictory statements about her age would not even be admissible for impeachment purposes.
Since that decision, the Court has given indications that a mistake of fact defense could be available in certain situations. In Castaneira v. State, the Court noted that the defense may be available “where an adolescent led the defendant to believe that she was an adult.” In Davis v. State, the Court held that, although the defendant’s knowledge of the alleged victim’s age is not an element of child molestation, presenting evidence that the defendant believed she was old enough to consent did not constitute an unreasonable trial strategy.
As of now, over 20 states, as well as the U.S. military code, recognize a mistake of fact defense in child sex cases. Many of these states have even enacted statutes which set out the requirements for such a defense.
In the U.S. military code, it provides that, in a child sexual abuse case, “it is a defense…that the accused reasonably believed that the child had attained the age of 16 years.” In other states, the law provides that the accused’s belief of the child’s age must be reasonable and “based upon the exercise of diligence that a reasonable adult who contemplated sexual relations would exercise.”
In this day and age, where interactions between teens and young adults take place predominantly through social media, it would seem not only reasonable, but necessary, to protect people from those misrepresenting their age online. In fact, many sexual offenses these days can be committed without ever meeting in person.
It’s about time that the Georgia appellate courts began recognizing a mistake of fact defense in these cases. Hopefully, the Georgia Supreme Court will agree to hear the West case and decide this issue definitively.