Maryland Criminal Attorney– This is a legal question that I am asked quite often, mostly by young men. The answer to the question is contained in the trite but partly true expression that “15 will get you 20”. The general rule is that the age at which a young person can legally consent to engage in vaginal intercourse, sexual contact, or a sexual act with another person is 16 years. There is an exception to this rule if the older participant (usually the man) is less than four years older than the girl. In other words, it may or may not be illegal for an 19 year old to have sex with a 15 year old or a 18 year old to have sex with a 14 year old depending upon when the participants birthdays occur. A violation of the statute only occurs if the participants’ birthdays are four years or more apart. (Note: under the sexual child abuse statute it is unlawful to engage in sexual conduct with a child under the age of 18 if the adult has temporary or permanent custody of the child. This subject is covered in greater detail in another blog).
The unusual part of the statute, as compared to most criminal statutes, is that it creates a strict liability standard. What I mean by that is that it doesn’t matter whether the child looked older than she really was, whether she told the offender that she was older than she really was or whether he reasonably believed she was older than she really was. The law states that if an adult 4 years or more older than the child under 16, engages in sexual conduct with that child, he is guilty – period. There is no knowledge or intent requirement under this statute hence the standard – strict liability.
This strict liability standard can be terribly unfair to the defendant in certain circumstances including a recent client of mine. My client, who was just 19 years old at the time of the offense, rented several connecting hotel rooms one evening to throw a party. The intention was to get intoxicated and hopefully “hook up” with some girls – certainly not an unusual practice for 19 year olds. My client advised me that he was acutely aware of the danger of having sex with underage girls because a friend of his had recently gone to prison for doing so. He advised me that because of this he adopted a policy of asking a girl for identification before “hooking up” with her as some girls look much older than they are. On this night he met a girl who he ended up hanging out with for several hours during the party. My client and the girl had both consumed alcohol but neither were drunk and the State did allege that she was incapacitated when the sexual conduct occurred.
The girl had advised my client that she was 18 from when he first met her and by her appearance, she could easily pass for that age. Later that evening my client and the girl went into one of the unoccupied rooms. My client advised her that he believed her that she was 18 but because of his friend going to prison for having sex with an underage girl, he was scared of “jail-bait”. He asked her to see her driver’s license which she readily produced showing that she was indeed 18. My client and the girl then engaged in consensual sexual intercourse. Unfortunately for my client, it turned out that the driver’s license she had was not hers but instead was that of her sister, who was 18 and as is common with sisters, looked quite similar to this girl. It turned out that this girl was actually 15 years old – 15 years 9 months to be exact. She was roughly 41/2 years younger than my client.
Ultimately, the girl stayed out way past her curfew and, after calling several of her friends, her parents determined her location. He father went to the hotel and called the police, who knocked on the door. My client answered the door half asleep in his boxers. The girl was still in the room and was in fact in bed and naked. The police separated the two for questioning and both admitted that they had engaged in consensual intercourse. It was only then that my client found out that she was 15. Even then he believed he was protected because the girl had admitted that she lied about her age and even admitted to having shown him her sister’s driver’s license. It was a tough pill for him to swallow that it did not matter in the eyes of the law whether he knew she was underage or not.
Because he was essentially caught red handed and had confessed, he had no defense. The real problem for my client was not the threat of incarceration as I knew that State was unlikely to seek it in this case. It was equally unlikely that any judge would incarcerate him given his good faith attempt to ascertain her age as well as the fact that he was only 41/2 years older than she was. The problem was having a conviction for a fourth degree sex offense and the possibility that the judge might require him register as a sex offender, which is within the court’s discretion on convictions for fourth degree sex offense (sex offender registration is mandatory for all other sex offenses). Fortunately, the prosecutor who was assigned to the case was very understanding as was the girl’s family. The State was still going to prosecute the case but neither the prosecutor, nor the girls’ parents wanted his life ruined. Ultimately, I was able to work out a deal for probation before judgment which will allow him to have the matter expunged in 3 years. The judge also agreed not to order him to register as a sex offender.