Well, this is awkward

She lied about her age, he lost everything

By Sarah Sidlow

Illustration: Jed Helmers

Zach Anderson is 19 years old, and is a registered sex offender. At the moment, he’s serving a 90-day sentence in jail. After that he’ll still be on a five-year probationary period during which he must live in a home where there is no access to Internet or a smart phone. This is especially not good because Anderson is (or was) a computer science student. Ouch.

Before all this, Zach met a woman. He from Indiana, she from across the border in Michigan, their fates were brought together by the “Hot or Not?” app. (Ah, romance.)

It turns out the woman, with whom Zach had relations, was really a 14-year-old girl. She’d lied to Anderson and also on her profile.

Here’s the kicker: after they were caught, the girl readily admitted that she lied about her age and her mother admitted publicly that Anderson “didn’t do anything my daughter didn’t do.” The encounter was completely consensual, and all parties have made that known. (The only reason the police became involved at all is because the girl is epileptic, and when she didn’t come home as quickly as expected, her worried mom called the cops.)

In fact, the underage “victim’s” mother told the judge to drop the case. Unfortunately, the judge, Dennis Wiley, is by all accounts a fuddy-duddy. (He once jailed a woman for 10 days over Christmas because she cursed while paying a traffic ticket in the county clerk’s office). Of the offense, Wiley said, “You went online, to use a fisherman’s expression, trolling for women to meet and have sex with. That seems to be part of our culture now: meet, hook up, have sex, sayonara. Totally inappropriate behavior. There is no excuse for this whatsoever.”

Inappropriate? Probably. But should Anderson be on the Sex Offender Registry for 25 years for having consensual sex with a girl who admits she told him she was of legal age?

It’s possible that other missteps in the court proceedings will open the door for Anderson and his family to try the case again. If that’s the case, Anderson’s defense lawyer would like to hold off a bit. You see, by then, it’s possible the Michigan Supreme Court will have decided to allow defendants to use “she lied about her age” as a component of their defense. Currently 20 states allow this. In the other 30, however, even if you were to turn to your would-be hookup and ask to see an ID, you could still be on the hook for statutory rape if the documentation proves to be false (also, the mood would be totally killed).

Proponents of the “she lied about her age” component are sympathetic to cases like Anderson’s, where even the “victim” and her family have asked that the charges be dropped, and that Anderson be allowed to live a normal life.

But there are others who read the law more narrowly, declaring that no matter the circumstances, engaging in intercourse with someone under the legal age is statutory rape, punishable by law, and that’s that.

Reach DCP Editor Sarah Sidlow at Editor@DaytonCityPaper.com

 

Debate Forum Question of the Week:

Should “she lied about her age” be a defense consideration in statutory rape cases?

 

Debate Left: Sexual deviance

Response By Ben Tomkins

 

Before I even start here, it has to be recognized that the female gender is just as desirous of sex as the male. I’ve seen the YouTube videos of girls walking down the street in New York with men catcalling them, and scientific evidence has indicated for years that men think about sex far more often than women do. However, neither of those things indicates that the male gender is more sexually motivated.

First off, there was no control video of a really ugly girl walking down the street in New York against which we could gauge the male reaction.

Second, calculating the number of instances that men think about sex v. women doesn’t tell you anything other than the fact that the male mind has a comparatively smaller slot machine wheel of thoughts rattling around in his head at any time. I usually have two:

1. The task at hand.

2. Whatever I’d rather be doing, and if it isn’t sex, then sex is inserted only when I’m thinking about the boring aspects of whatever I’d rather be doing.

You see, it’s like being a quarterback. We see flashes, not scenarios. I wouldn’t be surprised if women spent an equal amount of time thinking about sex, except each instance probably lasts much longer. For example, one day a woman could barely think about it at all, and the next when she’s got date with a hot guy, she’s rolling some aspect of it over and over in her head all day.

The reason I’m covering all this is because, right off the bat, we have to consider individuals rather than swaths of society. A law that determines guilt or innocence based purely on a factual age without consideration of believability will fail adults of both genders in tight-run cases of underage sex. This case is a perfect example.

The girl in question had to go to a lot of trouble to get this to happen. To start, she had to decide she wanted to have sex badly enough to begin figuring out how to pull it off without her parents or the locals finding out. Then, she had to create a profile, find a guy who was sufficiently far away to be a non-issue but also within her transportation range and be convincing enough that she was 18 for this guy to get in his car. Finally, she had to dupe her parents, find a way to get there herself and, to top it all off, she had to be convincing in person.

The guy, on the other hand, is 19, has a car and is off at college, where he pretty much runs his own schedule and life. He had someone pop up on his profile, got to know her a bit and when an attractive opportunity presented itself, he simply got in his car and drove.

So you see, both of them behaved exactly how I would expect (from a processing standpoint) given their individual motives, paradigms and the nature of the circumstances. The only way to tease apart Anderson’s guilt as the “adult” is to examine the elements of the case that would have given a reasonable person pause.

And these were? Judge Dennis Wiley, go:

“You went online, to use a fisherman’s expression, trolling for women to meet and have sex with. That seems to be part of our culture now: meet, hook up, have sex, sayonara. Totally inappropriate behavior. There is no excuse for this whatsoever.”

OK. Wiley openly agrees that Anderson was looking for “women,” not “girls.”  In fact, it would seem that all Wiley cares about is behavior that he finds socially inappropriate for two people of any age. He just happens to have Anderson in court because of the circumstances.

Look, both genders at large have their modus operandi when it comes to getting sex. Men are impulsive, and women are politicians. Let’s stop pretending this isn’t the case, and take a look at the one thing Michigan’s legal constructs doesn’t address.

All things being on the up-and-up, is it reasonable for the particular legal adult in that particular situation to believe what he or she is being told?

In Anderson’s case, it’s simply hard to say. However, establishing that the only important factor for giving consent is a birth certificate locked away somewhere in a vault completely obliterates the idea that someone can give believable consent. Consent is—by definition—a self-affirmation, so plausibility must be implicit. In the absence of predatory manipulation from the of-age individual, it defaults to a question of judgment based on circumstance.

Here’s the real kicker: Our rational brain doesn’t fully develop until we are in our mid-20s, but our age of consent is 18. What that means is that a 19-year-old has all the responsibility of a 30-year-old but lacks the hardware to make the same judgments, and that’s without taking into account experience.

Personally, I’d have to hear the case. I’d have to see this girl, review the circumstances and get Michigan a new judge and a new law. It’s hopelessly outside the scope of being dealt with fairly and judiciously. I can’t say if I feel bad for Anderson or not, but I do know this: Nobody in Michigan can either.

 Ben Tomkins is a violinist, teacher, journalist and critically acclaimed composer currently living in Denver, Colorado. He hates stupidity and generally believes that the volume of one’s voice is inversely proportional to one’s knowledge of an issue. Reach Ben Tomkins at BenTomkins@DaytonCityPaper.com.
 

Debate Right: ‘Lies! Damn Lies!’ should be defense

Response By Rob Scott

“She told me she was 18!”

This is the claim a lot of statutory rape defendants exclaim in their defense. Some may even be telling the truth. Does it even matter? Not in most states, including Ohio.

Generally speaking, a person commits the crime of statutory rape when he or she is over a certain age and has sex with a person under a certain age (the statutory age of consent), even if the underage person consented to have sex. Statutory rape is usually a “strict liability” crime, meaning that the intent or state of mind of the offender is irrelevant. If he or she had sex with someone under the statutory age of consent, he or she has committed the crime. Therefore, what the offender thought, including what he or she thought was the victim’s true age, does not matter and will not be the basis of a defense to the crime.

Some states, however, do have laws that allow a statutory rape defendant to offer evidence of his or her reasonable belief that the victim was over the age of statutory consent. In some of those states, the circumstances under which the defense may be offered are limited. Some allow for situations where the victim was over a certain age but under the age of consent, or where the victim’s own statements created the offender’s mistaken belief about the victim’s age.

The Model Penal Code, a recommended set of criminal laws developed by grand legal scholars, now includes a “mistake of age” defense to statutory rape. And, about a third of the states have some form of the defense, although most states have not adopted the defense outright as part of their criminal laws. Many of the states that do allow the defense do so only in limited factual circumstances.

Under Ohio Revised Code 2907.02, “No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when any of the following applies:

(a) For the purpose of preventing resistance, the offender substantially impairs the other person’s judgment or control by administering any drug, intoxicant or controlled substance to the other person surreptitiously or by force, threat of force or deception.

(b) The other person is less than thirteen years of age, whether or not the offender knows the age of the other person.

(c) The other person’s ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age, and the offender knows or has reasonable cause to believe that the other person’s ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age.”

The punishment for rape in Ohio is a first-degree felony, which could range from three to 11 years, with mandatory prison time.

Like with any charged crime, the government (i.e. prosecution) has the burden to prove the alleged offender’s guilt “beyond a reasonable doubt.” The defendant does have Constitutional rights and is provided all the rights to a defense, regardless of the “she lied” defense.

In states that allow the defense without limitation, a statutory rape defendant is permitted to offer evidence that he or she reasonably and in good faith believed the victim was over the age of consent. Such evidence may include the defendant’s own testimony about his belief and its basis, testimony or other evidence concerning what the victim said, how he or she appeared and acted and the age that the victim or others gave as his or her true age. The defense is allowed in these states regardless of the actual age of the victim.

As an example, if a statutory rape defendant claimed at trial to have believed that the obviously pre-pubescent girl in braces, pigtails and a middle school T-shirt was over 18, he likely would not be able to establish a reasonable belief in good faith she was of legal age.

Offering a mistake of age defense doesn’t necessarily mean that the defendant will be acquitted. The jury or judge could likely not find his claim valid that he sincerely believed the victim to be of age, or could have other evidence that may make the belief unreasonable.

In the scope of crimes, statutory rape is certainly a very serious crime and rape holds a very serious punishment for the offender. The fundamental question is if someone lies about their age to someone and then subsequently has consensual relations with them, should the “lie” be a defense if the lie could have been reasonably believed? Yes, it should—in those limited circumstances. Criminal law’s foundational principle is to not take the liberty of someone who is innocent.

Rob Scott is a general practice attorney at Oldham & Deitering, LLC. Scott is a Kettering City Councilman, founder of the Dayton Tea Party, member of the Dayton Masonic Lodge and Kettering Rotary. He can be contacted at rob@gemcitylaw.com or gemcitylaw.com.

 

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Sarah Sidlow
Reach DCP editor Sarah Sidlow at SarahSidlow@DaytonCityPaper.com.

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