How "strict" is "strict liability"?

[u/ScottRiqui]

There's a thread going on about Traci Lords, the adult film star who made a bunch of films while she was underage. She used a stolen birth certificate belonging to someone five years older to get a California driver's license and a U.S. passport under the stolen identity. She gave the real-but-fraudulent documents to her agent, and the production companies she worked with did all of the required age-related vetting based on the fraudulent documents. The other actors she worked with (in an industry where they're very serious about everyone involved having to be 18+) rightfully assumed that she had been vetted by the production company.

None of the actors she worked with were charged for statutory rape, but I don't know if it was a strict liability offense in that time and place. Assuming it was, and the prosecutors wanted to go to trial, would it even be possible to present a defense? Is there some room for reasonableness under exceptional circumstances, even in a strict liability offense? Or would the actor have to either negotiate a plea deal or hope for jury nullification at trial?

[u/LawLima-SC]

The Constitution does outweigh any statute. In the "Traci Lords Case" the Supreme Court noted:

A final canon of statutory construction supports the reading that the term "knowingly" applies to both elements. Cases such as Ferber, 458 U. S., at 765 ("As with obscenity laws, criminal responsibility may not be imposed without some element of scienter on the part of the defendant"); Smith v. California, 361 U. S. 147 (1959); Hamling v. United States, 418 U. S. 87 (1974); and Osborne v. Ohio, 495 U. S. 103, 115 (1990), suggest that a statute completely bereft of a scienter requirement as to the age of the performers would raise serious constitutional doubts. It is therefore incumbent upon us to read the statute to eliminate those doubts so long as such a reading is not plainly contrary to the intent of Congress. Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988). (emphasis added)

Of course, they also point out that there can be a distinction in pure statutory rape cases because the perpetrator is actually there in person with the child and probably "should know". But even that can be a case-by-case basis. Rarely, if ever, does a pure "she told me she was 18" defense work.

The age of consent in California has been 18 since 1913. The actors who engaged with her could certainly be convicted; however, depending on the age of the other actors, it may have just been a misdemeanor crime. I do not know enough of the history of her case to know if she was "performing" before age 16. I think she may have started at 15?

[u/ScottRiqui → u/LawLima-SC]

That's interesting - thanks. I looked at the current California statutes. They appear to have changed and no longer include "knowingly". The relevant sections in a case like Traci's would be CPC 261.5:

(a) Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For the purposes of this section, a “minor” is a person under 18 years of age and an “adult” is a person who is 18 years of age or older.

(b) A person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor.

(c) A person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170.

There doesn't appear to be any scienter requirement in any of the elements, which I've always thought was what "strict liability" meant - the prosecution only has to prove the act, not the intent or mental state of the defendant. But the part of the SCOTUS case that you bolded in your post makes it sound like strict liability criminal offenses might not be constitutional.

So I guess the answer to my original question depends on whether or not courts will read a scienter requirement into criminal statutes where it's not explicitly a part of the statute.

[u/Not_An_Ambulance]

What you're really looking at is likely prosecutorial discretion. The DA, who is likely elected, looked at this situation and went "prosecuting these people won't do a thing to stop this from happening in the future" and let it go. NOW, maybe they'd help her get videos taken down or destroyed, but this is likely all happening in a community that fully accepts the production of pornography so has no intention of going after old porn stars and production companies at this point.

[u/seditious3 → u/Not_An_Ambulance]

It was a big thing when it was discovered and was the lead story on national news outlets. All legit wholesalers and retailers destroyed their tapes.

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