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What Happens when a Partner Turns Out to Be a Minor?

You meet an attractive person at an event. After talking for a few hours, you both decide to get a bite to eat. The night is going great, and you ask if they want to come back to your place. They say yes, you drive to your house, and the rest is history. The morning after, however, you find a voicemail on your phone. You play back the recording surprised to hear an outraged father accusing you of statutory rape. That’s when you realize your date from the night before lied about their age. Are your actions legally protected since you didn’t know their real age?

Mistake of Age Defense

A “mistake of age defense” is an affirmative defense that criminal defense attorneys can use in a case like the one above, involving what would be consensual sex but for the age of one of the parties. An affirmative defense means that you may use this defense at trial, but it does not automatically prevent charges or exonerate your conduct. The efficacy of this defense, however, depends upon several factors and factual scenarios.

First, the age of consent for sexual activity in Minnesota is 16 years of age, unless you are in a position of authority or have a significant relationship with the 16 or 17-year-old person. Significant relationship and position of authority are legal terms that have specific definitions and you should contact C&T to get further information.

Second, minors between the ages of 13-15 can legally have sex with anyone who is no more than 24 months older than them. For example, a 13-year-old may have consensual sex with a 15-year-old, only if the 15-year-old is, at most, 24 months older.

Finally, there are limits to who the Mistake of Age defense is available to. The law does NOT allow a mistake of age defense to anyone who has sex with someone who is under the age of 13 years old. That means that regardless of how old the person looks or that they told you that they were 16, anyone under the age of 13 years old cannot consent to sex. The Mistake of Age defense is not available in that circumstance.

Additionally, the law is very specific about who can raise a Mistake of Age defense when a minor between the ages of 13-15 years old, claims to be older, and engages in consensual sex with someone more than 24 months older than them. In such a scenario, the law only provides for a Mistake of Age defense when the actor is no more than 120 months (10 years) older than the 13-15-year-old. That means that a 26-year-old will never be allowed to use a Mistake of Age if the minor was 15-years-old.

While the minor providing a false age is the best evidence to have at trial, if ages are not discussed between the parties, a Mistake of Age defense may still be an option at trial.

Other factors to consider in a mistaken age defense:

  • Did the accused ask the person’s age but was lied to?
  • Did the accused ask to see a driver’s license or other legal I.D. to check the person’s age?
  • Did the accused meet the person in an age-restricted location? (a bar, 18+ dating site, etc.)
  • Are the above scenarios provable?

If you or a loved one have been charged with any sex crime involving a minor, please contact (612) 444-5020 Caplan & Tamburino now!


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