Criminal Justice: Reasonable Rape

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Taking their cue from California, the legislatures of Illinois and New Mexico have since enacted laws providing age-mistake as a defense. Critic Myers also urges that strict liability be imposed only when the girl is under 13, an age when she "is just gaining the physical capacity to engage in intercourse, but remains seriously deficient in comprehension of the social, psychological, emotional and physical significance of sexuality."

When the girl is between 13 and 16, he argues, she may easily look and act 16 or older, and the male should be allowed reasonable age-mistake unless he is more than four years her senior. "Finally," says Myers, "consensual intercourse with females 16 and older should not be branded as rape." If legislatures balk, he adds, "the courts themselves, as in Hernandez, should take the initiative and bring their decisions into line with social realities by recognizing the defense of reasonable mistake of age."