Loblaw and Order: Special Victims Unit

Welcome to the blog. Let's make the first post about rape!

We know that Tobias is an Analrapist, but season 4 of Arrested Development Maeby seems to be following in his footsteps. Because this is going to involve season 4 spoilers and it's been less than a month since the show dropped on Netflix, I'm going to put the discussion under a cut.


Maeby is posing as a 17-year-old High School Senior in Season 4 but she's actually 23 years old, having decided to go back to school in an effort to get her parent's attention. Maeby seduces fellow student Perfecto, who she thinks is an undercover cop but is actually only 17 years old. The question is if Maeby is now a statutory rapist.

Criminal Law is comes down to two issues; elements and defenses. A defendant is only guilty of a crime if a finder of fact (usually a jury but sometimes a judge) finds that the defendant violated all elements of a crime beyond a reasonable doubt.

California Penal Code 161.5 deals with the crime of sexual intercourse with a minor.

(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 the age of 18 years and an
"adult" is a person who is at least 18 years of age.

So, the elements are that there is 1) sexual intercourse 2) wither a non-spouse 3) where one party is under 18 and 4) the other party is over 18. Based on these elements it is clear that Maeby committed the crime.

Normally the defense just needs to try and create reasonable doubt about the elements, but sometimes they are able to make certain defenses. f you use self-defense the Prosecution still needs to prove all the elements, but even if they do you can still be found not guilty if you prove your defense beyond a reasonable doubt.  The best known defense is self-defense. Defenses are not allowed in every type of case. Age of consent varies from state to state, but at least in California what Maeby did would be a crime.

But does the fact that Maeby truly believed that he was over 18 make a difference?

This gets into the legal concept of Mens Rea, or state of mind. Typically, for someone to be responsible for a crime they have to have intended to commit a crime. Here's a real life example: whenever my own Pop Pop would go to the local grocery store he would pick up a copy of a newspaper called "The Free Press" on his way out. It was many years later when he realized that the paper cost a quarter since he had mistaken the paper's name for its price. He may have been stealing the paper for years but he couldn't have been convicted of theft because he did not know that he was stealing.

Maeby certainly didn't have the Mens Rea to violate the statutory rape law but that doesn't matter. Because even though mens rea is typically necessary in criminal prosecutions, it is often not needed in a statutory rape prosecution. This type of crime, where your state of mind does not matter, is called a strict liability crime. 22 states treat statutory rape as a strict liability crime, but fortunately (for Maeby anyway) California is not one of them. In theory, Maeby could be acquitted of the crime through a mistake of age defense.

It's important to take a second to explain what a defense is since people often get confused. In criminal law the word defense is a bit like the word Aloha, it means a lot of things. Defense could refer to the non-prosecuting party (i.e. the defense team in the OJ Simpson case). Defense can refer to the story the party is using to refute the elements (i.e. his defense is that he was out of the country at the time of the event). Defense can also mean a specific legally recognized situation where the person can be found not guilty even when all of the elements are proven (i.e. he is pleading self-defense). Mistake of age defense is referiing to the third meaning of the word. In a mistake of age defense the defendant needs to show, beyond a reasonable doubt, that they were reasonable in believing that the victim was over 18 years old.

We know that Maeby had that belief, but would a court agree? We can never know what a jury would do, but if I had to choose a side to represent it would be the Prosecution. Perfecto represented himself to be under 18, he was in school, and he was the adopted son of a family friend so his age should have been clear if Maeby had asked Lucille 2. Maeby's own speculation about him being over 18 was based on a wild misunderstanding that seems unreasonable when compared to the evidence of his true age.

In People v. Teague, A104705, 2005 WL 1324792 (Cal. Ct. App. June 6, 2005) an appellate court found that the trial court had properly rejected the defendant's mistake of age defense even though the victim stated she was over 18 and was working at a job at hours meant for an adult, and was using a check-cashing card for adults. The victim had also told him at other times their actual age and the court also gave weight to the trial courts own discretion in whether or not it was reasonable for the defendant to have thought that the girl's physical and emotional maturity was that of an adult. The facts in Teague seem much more favorable to the mistake of age than those in the Funke case so it seems that our heroine is doomed to a life in Sudden Valley.