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What a Difference a Day Makes...

We all know the saying "what a difference a day makes." As Eugene Volokh describes in this post, a day made a huge difference for a defendant convicted of statutory rape because the court adopted the statutory rule for computing the victim's birthday (i.e., the actual day) instead of the common law rule, i.e., the day before the actual birthday. In the case Volokh describes, a defendant engaged in nonconsensual sex with a victim the day before her 16th birthday. Under the common law rule, the victim would have been deemed to have turned 16 that day, thus enabling the defendant to defeat the statutory rape charges. Instead, the court held that Pennsylvania law, which provides that a person does not turn 16 until her birthday, would apply, which meant that the victim was under age on the date of the assault, thereby making him guilty of statutory sexual assault.

Volokh doesn't dispute the conclusion, per se, but rather the rhetoric that accompanies it. He writes:

But I don't quite see how all this rhetoric about "pervert[ing] justice," "maximum protection to children 16 and under," and "the greatest attainment of protection of society against child sexual predators" fits with the case in which the debate is about one day. Hooks would have not been punished under the indecent-assault-under-16 law if the incident had happened one day later; everyone agrees with that. The law would not have treated the 16-year-old as being in need of protection against consensual sex (nonconsensual sex is a different matter, but he was charged on that separately, and partly convicted and partly acquitted). How would there be any material loss of "protection of society against child sexual predators" if the court interpreted the law as allowing the 16-year-old-minus-1-day as being capable of consenting just as the 16-year-old is capable? Where would be the "perversion of justice" in such a holding? One could argue that there may be perversion of justice in changing a rule to a defendant's detriment, when the defendant could have reasonably relied on it (highly unlikely here, but possible in my hypothetical about the lovers who let out their sexual frustrations in doing legal research about when they can lawfully have sex). But -- again focusing on the statutory rape charge at the heart of the case, and not on the charges that required a showing of lack of consent -- it's hard to see perversion of justice in sticking with an old rule that would set the age of consent one day earlier than the majority thinks reasonable.

Mike Cernovich of Crime and Federalism also comments on the case. From Cernovich's perspective, the defendant was essentially convicted on a technicality. He writes:

This principle is illustrated nicely in a case from Pennsylvania. A man was convicted of statutory rape for having consensual sex with someone who, in just a few hours, was legally able to consent to sex. Convicted on a technicality. I certainly support statutory rape laws. Children should not have their youths misspent by adults. But convicting someone for conduct that, in just a few hours would be legal, is silly and unjust. Yet the court nonetheless affirms the conviction.

As for me, I continue to marvel at the unusual facts underlying this case. What are the chances of a defendant assaulting someone the day before she turns 16 (is it 1/365, all other things being equal)? Can you think of any other lawsuits that involves unusual or coincidental facts that you wouldn't otherwise expect?

Posted by Carolyn Elefant on March 29, 2007 at 06:12 PM | Permalink | Comments (4)


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