Betsey Saunders on Mental Retardation and Statutory Rape

"Incomprehensible Crimes: Defendants with Mental Retardation Charged with Statutory Rape" 

New York University Law Review, Forthcoming

ELIZABETH NEVINS-SAUNDERS, New York University School of Law
Criminal law norms assume that all defendants are alike. But social science research has demonstrated that most defendants with mental retardation are unlike their peers of average intelligence in their cognitive and behavioral capacity, a difference with profound effects on their blameworthiness. The law acknowledges this difference in a few limited areas, most notably in the Supreme Court’s categorical exclusion of defendants with mental retardation from the death penalty. But while that decision has begun to percolate into the rest of criminal law, it has not yet reached the law of statutory rape. When prosecuted as a strict liability offense, statutory rape precludes the fact-finder from considering the defendant’s state of mind altogether. The total exclusion of mens rea is an anomaly in criminal law, where a finding of guilt typically requires proof not only of an “evil act,” but also of an “evil mind.” Commentators have criticized the strict liability doctrine, but have ignored how the standard is especially unjust when applied to defendants with mental retardation. A close analysis of statutory rape law reveals certain assumptions which allow such a low standard of proof for such a significant offense: would-be defendants are presumed to have notice that sex with underage partners is unlawful; to be in the best position to prevent any harm from occurring; and to be deviant, immoral aggressors. When examined in light of research about mental retardation, however, these assumptions collapse. Indeed, punishing a person with mental retardation without regard to his awareness of the law, social cues, and the nature of his conduct may also run afoul of constitutional due process and proportionate sentencing principles. This article therefore argues that the prosecution of statutory rape should be modified for defendants with mental retardation. The government should have to prove that a defendant with mental retardation had the mens rea to commit the offense. In addition, this article recommends formalizing the existing ways of addressing the difference in culpability of this population through charging and sentencing. The failure to account for defendants’ mental retardation in the context of statutory rape provides just one example of the theoretical and constitutional problems when criminal law disregards people who cannot comprehend the significance of their conduct.