By Larry Neely . . .
The case of Zach Anderson has certainly been in the news in recent weeks. In fact, RSOL has joined the crusade for Zach. My opinion is that we are placing far too much emphasis on Zach’s individual case and too little attention on the underlying cause, which places thousands of young people in the same situation. The culprit is “strict liability offense” schemes, which are disfavored and possibly unconstitutional according to the US. Supreme Court. Before I explain “strict liability” crimes, I will say that I am disheartened that Zach is no longer permitted to reside with his family due to restrictions imposed by Indiana authorities. This illuminates the importance for attorneys contemplating pleas for sexually related offenses to determine whether or not the person’s proposed residence comports with the law or the policies of the supervising authorities.
Zach was convicted of Criminal Sexual Conduct in the fourth degree, contrary to § 750.520(e) (Michigan Penal Code), a misdemeanor punishable by up to two years’ imprisonment. The statute reads in part: “A person is guilty of criminal sexual conduct in the fourth degree if he or she engages in sexual contact with another person and if any of the following circumstances exist: (a) That other person is at least 13 years of age but less than 16 years of age, and the actor is 5 or more years older than that other person…”
The problem facing the defense attorney handling Zach’s case is that Michigan’s Criminal Sexual Conduct statute is a “strict liability” offense, which is nearly impossible to defend. This is because no particular state of mind is required in order to convict Zach of the charges. Of course, Zach’s attorney could have rolled the dice and gone to trial hoping for “jury nullification.” Jury nullification occurs when a jury refuses to convict despite the evidence that the person engaged in criminal conduct. Such nullifications are rare. If the gamble failed, Zach more than likely would have been sentenced to a longer period of incarceration, and, depending on the number of counts he was facing, they could have stacked several two-year prison terms consecutively.
What is wrong with “strict liability offense” schemes? They are disfavored and the U.S Supreme Court has frequently recognized that criminal liability is normally based upon the concurrence of two factors: “an evil-meaning mind and an evil-doing hand.” See United States v. Bailey, 444 U.S. 394, 402 (1980) (quoting Morissette v. United States, 342 U.S. 246, 251 (1952)). “[T]he failure of Congress explicitly and unambiguously to indicate whether mens rea is required does not signal a departure from this background assumption of our criminal law.” See Liparota v. United States, 471 U.S. 419, 426 (1985). In United States v. United States Gypsum Co., 438 U.S. 422, 438 (1978) the Court observed that “far more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement.” Id at 438.
Michigan’s law was originally enacted in 1974. Much has changed in the world since then, particularly in terms of how relationships develop. Many people these days do use the Internet to arrange dates and begin relationships. In fact, marriages often result from relationships begun on line. Unfortunately, the law has not evolved to recognize society’s dramatic change. My personal preference would be that all felony-level sex offenses be amended to require that the prosecution prove knowledge of age. This is a very lofty goal and unlikely to happen without some successful litigation challenging the constitutionality of strict liability offenses. The next best outcome would be for these offense schemes to be amended to include some “affirmative defenses” such as a relationship formed based on the other person’s misrepresentation regarding age. If such a defense had been available to Zach’s attorney, my bet is that he would have rolled the dice and proceeded to trial.
RSOL’s Scarlet Legal Action Project has identified the issue of strict liability offense schemes as an important priority and will be working with other legal professionals seeking change.