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People v. Olsen

Citation. 22 Ill.36 Cal.3d 638, 205 Cal.Rptr. 492, 685 P.2d 52 (1984)
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Brief Fact Summary.

Defendants were convicted of violating a provision of California’s penal code that prohibits the commission of lewd acts with children under the age of 14 and argued that mistake as to the victim’s age is a defense to the crime charged.

Synopsis of Rule of Law.

Mistake of age is not a viable defense in cases of statutory rape.


Defendants were charged with violating section 288 of California’s penal code, which prohibits persons from committing lewd acts with children under the age of 14. At trial the complainant, who was 13 at the time the complained of actions took place, admitted that she had told the defendants that she was older than 16 and that she in fact looked older than 16. The defendants argued at trial that a good faith belief as to the age of the victim acts as a defense to the charge, but were convicted nonetheless. D’s appeal.


Is a reasonable mistake as to a victim’s age a defense to a charge of lewd conduct with a child under the age of 14 where the statute is silent as to state of mind?


No. Judgment affirmed.
Mistake of age is not recognized as a viable defense in cases of statutory rape.

Section 228 was enacted to protect children of tender years and the legislature made it clear that the statute did not contemplate applying the mistake of age defense in cases where the victim is of tender years. This is evidenced by the legislature’s enactment of a second provision which provides that individuals convicted under section 228, but whose conduct was based on a reasonable belief that the victim was of age, are eligible for parole. Had the legislature intended for mistake of age to act as a defense, it would have been unnecessary to enact such a provision.


Judge Grodin concurred in part and dissented in part. The dissent speaks with regard to strict liability crimes and comments that they generally are confined to regulatory and public welfare offenses where the penalties are much smaller than in rape cases and the conviction does not damage the offenders reputation in the way a statutory rape conviction does. Grodin believes that there should instead be a reasonableness standard that is set very high with regard to mistake of age as opposed to making the crime one of strict liability.


The holding in this case, that mistake of age in statutory rape cases is not a viable defense, represents the majority opinions in most jurisdictions as well as the viewpoint of the Model Penal Code. Therefore, like in other strict liability cases, punishment can ensue for actions taken without any culpability.

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