POHNPEI SUPREME COURT REPORTS
VOL.2
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POHNPEI STATE,
Plaintiff
vs.
GEORGE HAWK,
Defendant
Pohnpei Criminal Case No. 173-86 (1)
Trial Division of the PQhnpei Supreme Court June 18, 1986
Defendant was arraigned for the offense of statutory rape. He pleaded not guilty on the ground of an affirmative defense that at the time he had sexual intercourse with the victim she said she was 17 years of age, and her dressing and flirtatious reaction towards him made him believe that she had attained the age of consent.
The Pohnpei Supreme Court, JUDAH C. JOHNNY, Associate Justice, convicting the defendant, held that the physical appearance of the victim and the other evidence were not adequate to mislead a reasonable man to believe that she.had attained the age of consent.
1. Criminal Law - Source of Law
In the absence of case law from the former Trust Territory of the Pacific Islands or custom the Court may look to case law of jurisdictions in the United States that have deviated from the rule of strict liability in cases of statutory rape for guidance.
2. Criminal Law - Statutory Rape
Every person who shall unlawfully have sexual intercourse with a child, not his wife, or her husband, who has not attained the age of 15 years, shall, upon conviction thereof, be imprisoned for a period of less than three years, or fined not more than one thousand dollars, or both. It is an affirmative defense that the defendant reasonably believed the child to be at least 15 years old. (S.L. 1 L-3-85, Section 8-5)
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3. Criminal Law - Statutory Rape - Defense - Reasonable Belief
For an actor to have a reasonable belief, he must not have acted negligently or recklessly.
4. Criminal Law-Intent
A person acts recklessly with rasped to a material element of an offense when he consciously disregards a substantial and unjustifiable riskthatthemateriai element existsorwillresultfromhiscondud; and the risk must be of such a nature a degree that considering the nature and purpose of the actor's conduct and circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation. (Model Penal Code, Section 1.13 (16))
5. Criminal Law - Intent
A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct; and the risk must be of such a nature and degree that the actor's failure to perceive it, concerning the nature and purpose of his conduct and the circumstances known to him, involve a gross deviation from the standard of care that a reasonable person would observe in the actor's situation.
6. Criminal Law - Statutory Rape - Evidence - Burden of Proof
In a criminal prosecution for statutory rape, the prosecution has the burden of proof of all the elements of the offense, including proof that the female was under the statutory age of consent at the time of the alleged act.
7. Criminal Law- Affirmative Defense- Evidence- Burden of Proof-Degree of Proof
Where a defendant raises an affirmative defense on a criminal charge, it is generally held that he has the burden of proof of such defense, (6 POF 2d 75, 76) thus where the defendant relies on a distinct substantive matter to exempt him from punishment and absolve him from
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liability, he has the burden of proving that matter, usually by preponderance of the evidence (29 Am Jur 2d, Evidence, Section 156.)
8. Criminal Law - Affirmative Defense
The defense of reasonable mistake of age underthe Pohnpei Crimes Act is in the nature of an affirmative defense.
9. Criminal Law - Affirmative Defense - Reasonable Mistake Of Age Evidence - Burden of Proof
It is generally agreed that the defendant has the burden of producing evidence in the event of an affirmative defense of reasonable mistake of age.
10. Criminal Law -Statutory Raps - Affirmative Defense - Evidence
In considering the evidence necessary to establish the defense of mistake of age, it should be observed that the issue generally is phrased in terms of reasonable belief that the victim was overthe age of consent.
11. Criminal Law - Statutory Raps - Affirmative Defense - Reasonable Mistake of Age - Evidence - Burden Of Proof
In a prosecution for statutory rape the prosecution need not prove that the defendant had knowledge that the female was under the age of consent; rather it is incumbent upon the defendant to produce evidence of his belief that she was overage, and if the defendant thus proceeds with a disregard of, or lads of grounds for a belief that the female has reached the age of consent, he is criminally liable.
12. Criminal Law - Evidence - Cogency
In a criminal prosecution the defendant must prove his defense, and can do so by producing more credible evidence than has bean introduced against him.
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Counsel for Plaintiff: Dickson Santos State Assistant Prosecutor
Counsel for Defendant: Mark Mausert State Public Defender
Judah C. Johnny, Associate Justice
This matter was tried before me on June 18,1986, in Kolonia, State of Pohnpei. Appearances were Dickson Santos, State Assistant Prosecutor, and Mark Mausert, State Public Defender. The defendant was present.
This is a criminal trial, following arraignment which was held earlier, when the defendant George Hawk pleaded not guilty to the criminal offense of statutory rape. The Court found him guilty.
BACKGROUND
The evidence brought by the State showed that at about 11:00 0' clock in the morning of May 6, 1986, when a girt named Lorihda Tom was walking on the street from the Pohnpei Hospital where she was attending to her mother who was a patient, toward Kolonia, near the bridge commonly known as the Dewenneu Bridge, she was stopped by the defendant, who was operating an
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automobile heading in the same direction. The defendant offered Lorhida a ride. Lorihda refused but the defendant persuaded her on assurance that he would deliver Lorihda to her home. Lorihda accepted the offer and got into the defendant's automobile. As they headed toward Lorihda's home, which is located near the Pohnpei Protestant Church, known to Pohnpei people as the Nohnon Mwomwodiso en Pohnpei approximately two miles from Dewenneu Badge, the defendant proposed to take Lorihda on a joy-ride. They proceeded on to the Pohnpei Airport, passed the girl's home and on to Takatik Island. On the way the defendant proposed to Lorihda to have sexual intercourse with Lorihda. The defendant drove Lorihda to Takatik Island, in the proximity of the Pohnpei Commercial Dock, or shipping area, and had sexual intercourse with the girl behind some large container vans.
After this affair, when Lorihda returned to her mother at the hospital, the mother observed some kiss marks on the facial area of the girl and questioned her. Lorihda related to her mother what had happened, whereupon the mother requested police action. Medical examination concluded that Lorihda had had sexual
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intercourse at around the time charged in the complaint sheet. The defendant was apprehended, following whose interrogation, this complaint was filed. The defendant and Lorihda had had no prior acquaintance.
The defendant does not deny having sexual intercourse with Lorihda at the Pohnpei Commercial Dock at Takatik Island on May 6,1986. The defendant further admits that Lod hda was not his wife when he had sexual intercourse with her as charged. On May 6, 1986, Lorihda was thirteen years old. On testimony, Lorihda said that when asked by the defendant of her age, she told him that she was twelve years old. She was scared of the defendant at the time. She testified that when they reached the site of the crime, the defendant forcibly had sex with her. The defendant testified in conflict with that of Lorihda, stating that when asked of her age, the prosecutrix told him that she was seventeen. The defendant further testified that Lorihda's appearance and actions made him believe that she was seventeen - dressed in short tight skirt, and her reacting flirtatiously towards his actions, altogether made him believe that Lorihda had passed the age of consent.
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The defense relied upon requires that the defendant must "reasonably believe" the child to be at least 15 years old. What must be determined here is whether the evidence brought proved reasonable belief on the part of the defendant.
[1] In search for guidance from similar prior rulings in this court, I find that this is a matter of first impression. Search for case law from our predecessor is futile. Custom does not give direction. In the absence of immediate direction, this Court considers it fitting to be guided by case law of jurisdictions in the United States that have deviated from the majority rule of strict liability. One such jurisdiction is the State of California.
History shows that, like the State of California, statutory rape in the State of Pohnpei had originally been a strict liability offense, and mistake as to the age of an underage participant had been accorded no defensive significance. Ponape District Code, Chapter 4, Section 4-2 (PL-138-68). Until 1964, it was the universally accepted view of the courts in the United States that defendant's mistake of the age of the woman was not an essential element of the crime of statutory rape, and that therefore it was no defense that the accused reasonably believed her to be of the age of consent.
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United States v. Mack (1940, CA2 NY) 112 F2d 290; United States v. Crimmins, (1941 CA2 NY) 123 F2d 271; People v. Ratz,115 Cal. 132, 46 P 915; Anderson v. State (1963 Alaska), 384 P2d 669; Manship v. People, (1963) 99 Colo, 1, 58 P2d 1215; Territory v. Delas Santos, (1957) 42 Hawaii 102; and other reported cases in other states, including Illinois, Indiana, Iowa, Louisiana, Massachusetts, Michigan, Montana, New York, Ohio, Oklahoma, Pennsylvania, Texas, and Virginia, some of which are summarized in 8 ALR 3d 1100.
The Pohnpei statutory rape law was amended by the Pohnpei Crimes Act of 1985, SL-1 L-3-85. California did that in 1964. People v Hernandez, (1964) 61 Cal 529, 39 Cal Rptr 361, 393 P 2d 673, 8 ALR 3d 1092.
[2-5] Chapter 8, Section 8-5 of SL-1 L-3-85 reads,
"Every person who shall unlawfully have sexual intercourse with a child, not his wife, or her husband, who has not attained the age of 15 years, shall, upon conviction thereof, be imprisoned for a period of less than three years, or fined not more than one thousand dollars,or both. It is an affirmative defense that the defendant reasonably believed the child to be at least 15 years old."
The Pohnpei Crimes Act amended the Ponape District Code so that reasonable belief that the child was overthe age of consent will
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become an affirmative defense to a prosecution of statutory rape. That follows the development of this law in the United States up to Hernandez supra. The Model Penal Code of the American Law Institute (1962), shows a model of the statute which has ,been adopted in various jurisdictions in the United States which, while it retains the strict liability clause for the act upon a child of the age often and lower, provides the defense for an act upon a child above ten years of age. Section 213.6. "Reasonably believes," or "reasonable belief" is an element of defense in both statutes. Reasonable belief designates a belief that the actor is not reckless or negligent in so holding. Model Penal Code, Section 1.13 (16). A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature or degree that, considering the nature and purpose of the actor's conduct and circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actors situation. Section 2.02 (c) supra. A person acts negligently with respect to a material element of an offense
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when ha should be aware of a substantial and unjustifiable riskthat the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor's failure to perceive it, concerning the nature and purpose of his conduct and the circumstances known to him, involve a gross deviation from the standard of care that a reasonable person would observe in the actor's situation.
[6] It is clear that as in other criminal prosecution, the prosecution here has the burden a proof of all elements of the offense of statutory rape, including proof that the female was under the statutory age of consent at time of the alleged act.
[7] Where a defendant raises an affirmative defense on a criminal charge, it is generally held that he has the burden of proof of such defense. See 6 POF 2d 75, 76. In criminal prosecutions, the burden of proving affirmative defense rests on the defendant: that is, where the defendant relies on a distinct substantive matter to exempt him from punishment and absolve him from liability, he has the burden of proving that matter, usually by preponderance of the evidence. 29 Am Jur 2d, Evidence, Section 156. There is some
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disagreement as to the quantum of proof that the defendant must present. It is sometimes said that he need present only enough evidence to raise a reasonable doubt as to his guilt, while at other times it is stated that he must prove an affirmative defense by a preponderance of the evidence.
[8-12] The defense of reasonable mistake of age under the Pohnpei Crimes Act is in the nature of an affirmative defense. It is generally agreed that the defendant has the burden of producing evidence on the issue. While it has been argued that once that defendant brings in evidence of reasonable mistake of age, the prosecution should then have the burden of proof beyond reasonable doubt on the issue, since the defendant's evidence goes to the issue of intent, I take the direction in Hernandez supra, that in considering the evidence necessary to establish the defense of mistake of age, it should be observed that the issue generally is phrased in terms of reasonable belief that the victim was over the age of consent. The prosecution need not prove that the defendant had knowledge that the female was under the age of consent; rather it is incumbent upon the defendant to produce evidence of
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his belief that she was overage, and if the defendant thus, proceeds with a disregard of, or lack of grounds for a belief that the female has reached the age of consent, he is criminally liable. The defendant must prove his defense - that is, he must pro-duce more credible evidence than has been introduced against him.
The defendant supports his belief, testifying that from the way Lorihda dressed (in tight skirt), size of her body, how she reacted to him (flirtatious and seemed to know her part in the act), and,response to him of her age (17), cased him to believe she was 17. These testimonies of the defendant do not convince me that they raise reasonable belief for him to go on and have sexual intercourse with Lorihda. On the contrary, I believe in Lorihda's testimony that she was persuaded to board the defendant's automobile, and that she told the defendant she was 12 years old. The physical appearance of the victim is small and there is appearance of tender age on her face. The reaction of the girl to the defendant, as being flirtatious as explained by the defendant does not convince me to be adequate to mislead a reasonable man. All these working together, in my view, cannot make a reasonable man to be mistaken in his belief. Therefore defendant cannot standin his affirmative defense of reasonable belief of age. The defendant must, despite his guilty mind, being a married man with children, have a dirty immoral intention toward Lodhda, even from the moment he persuaded her to take her to her home. I find the defendant guilty.