A.Offenses Involving Victims With a Mental or Physical Disability
The mistake-of-fact defense applies to CSC offenses that refer to a victim’s mental or physical condition if the statutory language requires that the defendant knows or has reason to know of the victim’s condition. See, e.g., MCL 750.520d(1)(c). A defendant who makes a reasonable mistake as to the victim’s mental or physical condition may not be criminally liable for his or her conduct. People v Davis, 102 Mich App 403, 406-407 (1980) (defendant was highly intoxicated at the time he picked up a woman wandering on the grounds of a state mental institution).1
The Davis Court discussed the legislative intent behind the knows or has reason to know language appearing in MCL 750.520d(1)(c):
“It is our belief that by including the ‘knows or has reason to know’ language, the Legislature did not desire to excuse a defendant who is unreasonable in his conclusion that the victim could consent to the sexual penetration. Rather, we believe that the Legislature was desirous of protecting individuals who have sexual relations with a partner who appears mentally sound, only to find out later that this is not the case. A mental illness which renders a person ‘mentally defective’[2] within the meaning of MCL 750.520a(c) . . . is not necessarily always apparent to the world at large. . . . We are convinced that the Legislature only intended to eliminate liability where the mental defect is not apparent to reasonable persons.” Davis, 102 Mich App at 406-407 (emphasis added).
Other CSC crimes involving a victim’s mental or physical condition and containing the same knows or has reason to know language are:
•first- or second-degree criminal sexual conduct (sexual penetration or contact with the victim) aided or abetted by one or more persons, and actor knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless. MCL 750.520b(1)(d)(i) (CSC-I); MCL 750.520c(1)(d)(i) (CSC-II).
•first- or second-degree criminal sexual conduct (sexual penetration or contact with the victim) causing personal injury to the victim, and actor knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless. MCL 750.520b(1)(g) (CSC-I); and MCL 750.520c(1)(g) (CSC-II).
•Third-degree criminal sexual conduct (sexual penetration with the victim) and actor knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless. MCL 750.520d(1)(c).
•Fourth-degree criminal sexual conduct (sexual contact with the victim) and actor knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless. MCL 750.520e(1)(c).
Whether a defendant knows or has reason to know that a victim is mentally incapable, mentally incapacitated, or physically helpless is determined by a reasonable person or objective standard, not by a defendant’s subjective perception and evaluation of the victim’s condition. People v Baker, 157 Mich App 613, 614-615 (1986) (defendant was convicted of CSC-I for engaging in sexual intercourse with a mentally impaired woman and claimed that the jury should have applied a subjective standard, not a reasonable person standard). See also People v Cox, 268 Mich App 440, 446-447 (2005) (defendant engaged in sexual conduct with a victim who was mentally incapable of consent where the victim’s mental condition was “readily noticeable” and defendant had “ample opportunity” to notice the victim’s limitations).
B.Offenses Requiring Proof of a Victim’s Age3
A defendant’s reasonable mistake of fact regarding a victim’s age is not a defense to a statutory rape offense. People v Gengels, 218 Mich 632, 641 (1922). Consequently, the CSC Act’s “age” offenses are strict liability crimes. In re Hildebrant, 216 Mich App 384, 386 (1996) (a defendant’s status as a minor did not preclude conviction of CSC-III when the victim was a minor at least age 13 but less than age 16 because “[t]he language of the third-degree criminal sexual conduct statute does not exclude any class of offenders on the basis of age”). See also In re Tiemann, 297 Mich App 250, 257 (2012) (rejecting the 15-year-old respondent’s contention “that MCL 750.520d violates public policy as applied to consenting minors in the same age class”).
Michigan does not recognize a reasonable-mistake-of-age defense in cases of statutory rape. People v Cash, 419 Mich 230, 240 (1984) (defendant was convicted of CSC-III for engaging in sexual intercourse with a 15-year-old girl who, at the time of the offense, told the defendant she was 17). The Cash Court noted that the Legislature could have provided for a reasonable-mistake-of-age defense by adding the knows or has reason to know language to the CSC Act’s age elements, as it did for other elements:
“Had the Legislature desired to revise the existing law by allowing for a reasonable-mistake-of-age defense, it could have done so, but it did not do so. This is further supported by the fact that under another provision of the same section of the statute, concerning the mentally ill or physically helpless rape victim, the Legislature specifically provided for the defense of a reasonable mistake of fact by adding the language that the actor ‘knows or has reason to know’ of the victim’s condition where the prior statute contained no requirement of intent. The Legislature’s failure to include similar language under the section of the statute in question indicates to us the Legislature’s intent to adhere to the Gengels[4] rule that the actual, and not the apparent, age of the complainant governs in statutory rape offenses.” Cash, 419 Mich at 241.
1 The Davis Court discussed the knows or has reason to know statutory language in the context of the defendant’s claim that MCL 750.520d(1)(c) was a specific-intent crime and that “his intoxication could be a defense to the crime if his drunken state precluded him from knowing or having reason to know that the victim was mentally defective.” Davis, 102 Mich App at 406. The Court disagreed. “[T]he ‘knows or has reason to know’ language of [MCL 750.520d(1)(c) does not impose] a specific intent element which must be established in order to sustain a conviction. . . . A person who has reason to know of his partner’s mentally defective condition without, in fact, being truly cognizant of its existence has only the general intent to commit the act of sexual penetration, and no additional intent to engage in penetration with one he actually knows is mentally incapacitated.” Davis, 102 Mich App at 406 (citation omitted).
2 After Davis was decided, the term mentally defective was replaced by the term mentally incapable. See MCL 750.520d(1)(c).
3 “[T]he birthday rule of age calculation applies in Michigan.” People v Woolfolk, 304 Mich App 450, 505 (2014), aff’d 497 Mich 23 (2014). Under the birthday rule, “‘a person attains a given age on the anniversary date of his or her birth.’” Woolfolk, 304 Mich App at 464 (citation omitted).
4 People v Gengels, 218 Mich 632 (1922).