Mistake of Age Is Not a Defense in Michigan

In Michigan, a reasonable belief that a person was 16 or older is not a defense to a criminal sexual conduct (CSC) charge that rests on the person being under 16. The Sexual Assault Benchbook, which Michigan judges use, states the rule from People v Cash (Michigan Supreme Court, 1984): Michigan does not recognize a reasonable-mistake-of-age defense in cases of statutory rape. In that case the defendant was convicted of third-degree CSC for intercourse with a 15-year-old who, at the time, told him she was 17.^[1]

This page explains what the cited decisions and statutes say. It is not legal advice and is not a recommendation to rely on, or to rule out, any defense in a particular case.

This page explains the rule, the Court's reasoning, how it fits with the rule that a person under 16 cannot consent, and the one kind of mistake the CSC statutes do take into account. The ages themselves are set out in Age of consent in Michigan.

What is the rule?

The benchbook puts it in one sentence: Michigan does not recognize a reasonable-mistake-of-age defense in cases of statutory rape.^[1] It traces the rule to a 1922 Michigan Supreme Court decision, People v Gengels, for the statement that a defendant's reasonable mistake of fact regarding a victim's age is not a defense to a statutory rape offense, and it adds that "consequently" the CSC Act's "age" offenses are strict liability crimes.^[4]

"Strict liability" is the benchbook's label. The Court's own words in Cash are that "the actual, and not the apparent, age of the complainant governs in statutory rape offenses."^[2]

Why did the Michigan Supreme Court reject the defense?

The Court looked at how the Legislature wrote the rest of the statute. It said that had the Legislature desired to allow a reasonable-mistake-of-age defense, "it could have done so, but it did not do so."^[2]

The Court drew a comparison. For the provision concerning a mentally ill or physically helpless victim, the Legislature added language that the actor "knows or has reason to know" of the victim's condition.^[2] It did not include similar language in the section at issue, and the Court read that as the Legislature's intent to adhere to the Gengels rule that "the actual, and not the apparent, age of the complainant governs in statutory rape offenses."^[2]

Which charges does the rule affect?

Cash was a third-degree case with a 15-year-old complainant, and the Court of Appeals decisions the benchbook cites with it also involved complainants aged 13 to 15.^[1][4] The benchbook applies its "strict liability" description to the CSC Act's "age" offenses generally.^[4] The provisions that turn on a complainant being under 16 are:

Charge	Age element
First-degree CSC	Sexual penetration where the other person is under 13 years of age.[7]
First-degree CSC	Sexual penetration where the other person is at least 13 but less than 16 and one of the listed relationships applies, such as the same household or a teacher at the person's school.[8]
Third-degree CSC	Sexual penetration where the other person is at least 13 and under 16 years of age; the Court of Appeals has said there is no public policy bar to prosecution of one child who engages in sexual acts with another child when both are within the same protected age group.[9][10]
Fourth-degree CSC	Sexual contact where the other person is at least 13 but less than 16 and the actor is 5 or more years older.[11]

Other CSC provisions use age as an element for people aged 16 or older, such as students aged 16 or 17 and school staff.^[12] The benchbook's discussion of mistake of age does not address those provisions, and no source used for this guide says how a mistake about age is treated under them; this page states no rule for them.^[4]

The sentence that follows a conviction can also turn on age. First-degree CSC committed by an individual 17 or older against an individual less than 13 is punishable by imprisonment for life or any term of years, but not less than 25 years.^[13] See Statutory rape laws in Michigan and Third-degree CSC.

How does this fit with consent?

They are separate rules. The benchbook states that because a person under the age of 16 is legally incapable of consenting to a sexual act, consent is inapplicable for all CSC offenses involving victims under the age of 16.^[3] The Use Note to the consent jury instruction says it should not be given where the victim is below the age of consent.^[14]

Under those authorities, where a charge rests on the complainant being under 16, neither the younger person's agreement nor the accused's reasonable belief that the person was older is a defense.^[3][1] See The consent defense in CSC cases.

Is there a close-in-age exception?

Not as a defense to the charge. In In re Hildebrant the Court of Appeals said: "If our state legislature had intended that courts consider the age differential between the offender and the victim, it could have included this consideration in the criminal sexual conduct statutes."^[15]

One offense definition does take an age gap into account: the fourth-degree provision on sexual contact with a person aged 13 to 15 applies when the actor is 5 or more years older.^[11]

Whether a person convicted in a close-in-age case has to register as a sex offender is a separate question about registration, not about guilt; it is covered in Michigan's "Romeo and Juliet" law.

How is age calculated?

The Court of Appeals has said the birthday rule of age calculation applies in Michigan: a person attains a given age on the anniversary date of his or her birth.^[16]

What kind of mistake does the law recognize?

A mistake about the complainant's mental or physical condition, in some provisions. The benchbook states that 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 condition, and that a defendant who makes a reasonable mistake about it may not be criminally liable.^[4] That question is answered by a reasonable-person, objective standard, not by the defendant's subjective perception and evaluation of the complainant's condition.^[5]

The Court of Appeals has explained the purpose of that language: the Legislature did not desire to excuse a defendant who is unreasonable in his conclusion, and intended to eliminate liability only where the condition is not apparent to reasonable persons.^[17]

Mistake about	Is a reasonable mistake a defense?
The complainant's age, in cases of statutory rape	Rejected (People v Cash).[1]
The complainant's mental or physical condition	It can be, where the statute says "knows or has reason to know"; the standard is that of a reasonable person.[4][5]

See Incapacitation, intoxication and consent.

What about online cases and decoys?

A different situation arises where the other person was an adult, such as an undercover officer, and the accused believed he or she was communicating with a minor. Two statutes and one decision address belief:

• The accosting statute applies "regardless of whether the person knows the individual is a child or knows the actual age of the child," and also covers an individual whom the person believes is a child less than 16 years of age.^[6]
• The statute on using the internet or a computer to commit listed crimes covers a victim or intended victim who is a minor or is believed by the person to be a minor.^[18]
• The Michigan Supreme Court held in People v Thousand (2001) that the nonexistence of a minor victim did not give rise to a viable defense to the attempt charge in that case.^[19]

These are covered in Online sting operations and Accosting a child for immoral purposes. This page does not address federal law.

What people get wrong

"They lied about their age, so it's a defense." The complainant in Cash had told the defendant she was 17, and the Court held that Michigan does not recognize a reasonable-mistake-of-age defense.^[1]

"It only counts if there's a big age gap." The third-degree provision for a person at least 13 and under 16 has no age-gap element, and the Court of Appeals has said there is no public policy bar to prosecuting one child for acts with another in the same protected age group.^[9][10]

"If mistake of age is no defense, no mistake is." Provisions that say the actor "knows or has reason to know" of a mental or physical condition are written differently, and that question is judged by an objective standard.^[4][5] The other defenses and their limits are summarized in Defenses to sex crime charges.