The Texas Court of Criminal Appeals last week heard oral arguments in a case that could change the way some sex offenses are prosecuted in Texas. At issue is whether a state statute pertaining to sexual assault of a child is unconstitutional because it does not require the state to prove a defendant’s culpable mental state – that is, a defendant’s knowledge of whether the alleged victim was a minor – neither does it allow for an affirmative defense based on the defendant’s belief that the relationship was with an adult (that is, in Texas, at least 17 years old).
Mark Alexander Fleming was 24 years old and living in Denton County when he began a relationship with Kari Minesinger. Minesinger first contacted Fleming via text; she told him she’d gotten his number from a friend at a bar. She was 22 years old, he said she told him. He checked out her Facebook and MySpace pages, which seemed to confirm her story: She represented herself as a University of North Texas student seeking a degree in criminal justice. The two communicated by phone for a couple of weeks before going on a first date. He took her home around midnight; when asked if she had a roommate, she allegedly told him that her mother and stepfather were living with her because the couple had “lost their house.” After a second date, Minesinger spent the night with Fleming; in the morning the couple had sex. During another date, the two were stopped by a police officer after they were caught afterhours at Lake Ray Roberts. The officer ran their names through a police database but could not find any listing for Minesinger, who said she didn’t have ID on her but was born in 1988. The officer let the couple go, suggesting that they “get a motel [room].” As the relationship went on, two of Fleming’s friends were also convinced that Minesinger was of age. As such, it came as quite a surprise when Fleming was arrested and charged with sexual assault of a minor. As it turned out, she was just 14. (In court, Minesinger denied that she’d ever deliberately misled anyone.)
Fleming challenged the charges, arguing that the state should have to prove that he intended to have sex with a minor, or that he should at least be allowed to present evidence that Minesinger intended to deceive him into believing she was an adult. The court rejected his challenge. Fleming pleaded “no contest” to the charges and was ultimately sentenced to 10 years probation – ironically, that sentence isn’t allowable under the statute, but was agreed to by prosecutors after a member of Fleming’s jury came forward to tell the court that his son had also had a “dating” relationship with Minesinger. The court rejected Fleming’s motion to have the charges tossed; he appealed, but Fort Worth’s Second Court of Appeals sided with the trial court. Last week the CCA heard the case. Fleming’s attorney Richard Gladden argued that the statute as written, without a protection for the defendant – either by having the state prove culpability or by allowing a so-called mistake-of-fact defense – violates due process and, in fact, is out of step with federal law, which generally requires proof of a culpable mental state for a similar prosecution.
Judging by the discussion and questions from the bench, the court seems mixed on the issue: Judge Michael Keasler was incredulous that the state would have to prove knowledge to successfully prosecute these cases – adolescents can’t consent, he noted, and as such, a person should simply understand that you “have sex at your own peril.” But several members of the court, including Judges Cheryl Johnson and Cathy Cochran, seemed more concerned with the situation. Johnson noted that some adolescent girls appear much older and are able to obtain fake IDs to “prove” their age. If the law is meant to protect these underage girls, she asked, “what about protecting [our] boys?”
Cochran noted that a Kaiser Family Foundation study revealed that more than half of all females have had a sexual experience by the age of 17. If that’s the case, she wondered aloud what the statute actually accomplishes. Just because adolescents are having sex doesn’t mean it should be condoned, Keasler responded, and, he asked, was it the court’s job to second-guess lawmakers, who haven’t altered the statute to clarify that their intent was anything other than the blanket presumption – intent, knowledge, or mistaken fact be damned – that sex with an adolescent is illegal? But if there are other crimes that hinge on knowledge of age, suggested Judge Lawrence Meyers – like abuse of the elderly, perhaps – isn’t there an equal protection issue? If knowledge or mistake-of-fact is “allowed in other age-related crimes, why not … in this one?”
Prosecution of these cases – where, in essence, an adolescent girl has lied about her age to start or maintain a relationship – is among the most troubling to Mary Sue Molnar, who founded Texas Voices, a statewide advocacy group consisting of sex offenders and their families. Without a way to defend themselves against prosecution, defendants in these cases are left only with the option of trying for a shorter sentence in the punishment phase, during which they can present mitigating evidence about the circumstances surrounding the relationship. Of course, sentences for aggravated sexual assault of a child – a first-degree felony – run up to life in prison. Moreover, a conviction of this nature requires registration for life as a sex offender. In other words, having a way to defend these cases prior to conviction is important to ensure fairness. “In many of these cases,” says Molnar, “it is evident that these girls have misrepresented themselves in one way or another.” One member of her group, she says, was prosecuted for assault of a girl he’d met sitting at a bar, drinking a beer. “It is a much bigger problem than people think,” he said.
The court has no timeline to rule on the case.
To hear the CCA judges in action, listen to the oral argument at www.chrisraeszpc.com/gladden/Gladden_oral_arg.mp3.
This article appears in April 15 • 2011.