Is Mistake of Age a Defense to Statutory Rape in SC?

Mistake of age is not a defense to statutory rape in SC.

If you are over the age of 18 and you have consensual sex with a minor under the age of 16, you can be charged with statutory rape in SC, and “I thought she was older” is no defense. Even if the minor looks like they are in their 20’s, it is no defense. Even if they show you a fake ID that says they are 35, it is no defense.

There are attorney websites in SC that say mistake of age is a defense, and there are attorney websites that say SC does not have a Romeo and Juliet provision. They are wrong.

Below, I’ll go through the SC laws and cases that clarify 1) there is no mistake of age defense in SC but 2) there is a Romeo law that applies to teenagers between the ages of 14 and 18.

Mistake of Age is not a Defense to Statutory Rape

Mistake can be a defense to some crimes in SC, but mistake of age is not a defense to statutory rape. First, we’ll look at what statutory rape means in SC, then, why mistake of age is not a defense, and, finally, we will look at SC’s Romeo law that protects teenagers from prosecution for statutory rape.

What is Statutory Rape in SC?

SC Code Section 16-3-655 makes it a crime to have sexual relations with a minor who is:

1. Younger than 11 years old, or younger than 16 years old if the actor (alleged rapist) was on the sex offender registry (CSC with a minor first degree),
2. 11 to 14 years old, or 14-15 years old and the actor was “in a position of familial, custodial, or official authority to coerce the victim to submit or is older than the victim” (CSC with a minor second degree), or
3. Younger than 16 years old, and the actor commits “a lewd or lascivious act upon or with the body, or its parts, of a child under sixteen years of age, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of the actor or the child,” when the actor is over 14 years old (CSC with a minor third degree or “lewd act”).

“Statutory rape” is when a person has sex with a child, but it is not forced – the child agrees, and they have sex. If the conduct falls within the age ranges above (but is not excluded by the Romeo provision discussed below), it is statutory rape even if there was consent, because children are considered unable to consent to sex.

But what if you are a 19-year-old male who met a 15-year-old girl at a club, and she 1) says she is 18 and 2) looks like she is 18? Surely, you shouldn’t be prosecuted for that, right? It was an honest mistake…

Mistake of Age is Not a Defense

Mistake of age is not a defense to statutory rape in SC.

SC’s CSC with a minor statute, linked to above, does not contain a mistake of age defense. Although there are no published opinions in SC that are on point, there is one unpublished opinion, State v. Hampton, that denies an appeal from a conviction for CSC with a minor second degree because there is no mistake of age defense in SC.

The Court of Appeals notes that, because the legislature included the Romeo provision in the CSC with a minor law but did not include a mistake of age defense, it intended to exclude any defense based on mistake of age (expressio unius est exclusion alterius):

As to whether the trial court erred in refusing to charge the jury on the defense of mistake of age, such a defense is not available under Section 16-3-655(B)(1) of the South Carolina Code (Supp. 2006): State v. Brown, 362 S.C. 258, 261-62, 607 S.E.2d 93, 95 (Ct. App. 2004) (“The law to be charged to the jury is determined by the evidence presented at trial.  If there is any evidence to support a jury charge, the trial judge should grant the request.  To warrant reversal, a trial judge’s refusal to give a requested jury charge must be both erroneous and prejudicial to the defendant.” (citations and internal quotation marks omitted)); Penn. Nat’l Mut. Cas. Ins. Co. v. Parker, 282 S.C. 546, 554-55, 320 S.E.2d 458, 463 (Ct. App. 1984) (citation omitted) (“A well-established rule of statutory construction is expressio unius est exclusion alterius, which means that the enumeration of particular things excludes the idea of something else not mentioned.  Under the rule, exceptions made in a statute give rise to a strong inference that no other exceptions were intended.” (citations omitted)).

It is worth noting that other SC laws dealing with the exploitation of minors explicitly state that “mistake of age is not a defense.” For example:

• Human trafficking: “(I) Evidence of the following facts or conditions do not constitute a defense in a prosecution for a violation of this article, nor does the evidence preclude a finding of a violation: (5) mistake as to the victim’s age, even if the mistake is reasonable.”
• Dissemination of harmful materials to minors: “(C) Except as provided in item (3) of this subsection, mistake of age is not a defense to a prosecution under this section… (3) before disseminating or exhibiting the harmful material or performance, the defendant requested and received a driver’s license, student identification card, or other official governmental or educational identification card or paper indicating that the minor to whom the material or performance was disseminated or exhibited was at least eighteen years old, and the defendant reasonably believed the minor was at least eighteen years old.”
• Employing a person under the age of 18 to appear in public nude: “(B) Mistake of age is not a defense to a prosecution pursuant to this section.”
• Sexual exploitation of a minor: “(C) Mistake of age is not a defense to a prosecution pursuant to this section.”
• Promoting prostitution of a minor: “(B) Mistake of age is not a defense to a prosecution under this section.”
• Participating in prostitution of a minor: “(B) Mistake of age is not a defense to a prosecution under this section.”

This doesn’t mean there are no defenses. If you are charged with CSC with a minor in SC, there may be other defenses available – the most common defenses include:

• It didn’t happen,
• It happened, but you weren’t the perpetrator,
• You fall within SC’s Romeo and Juliet law, or
• There is insufficient evidence for a conviction.

SC Law Does Contain a Romeo Provision

SC’s CSC with a minor laws do contain a Romeo provision, however. SC Code Section 16-3-655 says that:

1. If someone is charged with second-degree CSC with a minor, “a person may not be convicted of a violation of the provisions of this item if he is eighteen years of age or less when he engages in consensual sexual conduct with another person who is at least fourteen years of age,” and
2. If someone is charged with third-degree CSC with a minor, “a person may not be convicted of a violation of the provisions of this subsection if the person is eighteen years of age or less when the person engages in consensual lewd or lascivious conduct with another person who is at least fourteen years of age.”

This means that a person cannot be convicted of statutory rape (consensual sex or consensual lewd act) if the person is 18 years old or younger and their partner is 14 years of age or older.

Got Axelrod?

SC does not allow a mistake of age defense to statutory rape, but there is a Romeo provision that protects teenagers between the ages of 14 and 18.

Whether you are charged with a sex offense or trying to get your conviction overturned, the SC sex offense attorneys at Axelrod and Associates want to help. Call Axelrod and Associates now at 843-353-3449 or email us to talk with a Myrtle Beach, SC criminal defense attorney today.