If a minor lies about his or her age online, the minor will likely face no repercussions. However, adults who engage in sex acts with minors who have lied about their age can still be liable for a sex crime. In many states, not knowing that someone was underage is not a defense to most sex offenses involving minors, like statutory rape.
What are the repercussions of a minor lying about their age online?
For the minor, lying about his or her age online – known as “catfishing” – does not carry serious repercussions. Adults who engage in sexual activity with a dishonest minor can be charged with a sex crime, though. These offenses are almost always felonies. In many states, the fact that the minor lied about his or her age is not a defense. In other states, it can be a defense, so long as the minor was over a certain age.
Having sexual relations with someone under the age of consent is a crime. The offense is usually called statutory rape. However, different states may have different names and definitions for the offense. In California, for example, adults who have had sexual conduct with someone under the age of consent can be charged with:
- oral copulation with a minor (Penal Code 287 PC),
- lewd acts with a minor (Penal Code 288 PC), if the minor was under 14 years old,
- child pornography (Penal Code 311 PC), or
- statutory rape (Penal Code 261.5 PC).
Even if there was not a sexual relationship or physical sexual encounter, adults in California can still be charged with arranging a meeting with a minor for lewd purposes (Penal Code 288.4 PC). In other states, this offense is often known as online solicitation of a minor.
A conviction for any of these crimes will likely carry:
- fines,
- jail time,
- felony probation, and often
- sex offender registration requirements.
For example, a conviction for lewd acts with a minor is a felony offense in California. The prison sentencing range for a conviction is 3, 6, or 8 years in prison. If the child was under 14 and bodily harm was inflicted, a conviction can carry up to life in prison.1
No state lets the minor’s consent be used as a legal defense. Minors are under the age of consent, so their agreement never amounts to legal consent. However, some states recognize the legal defense of a good faith belief that the minor was over the age of consent. This is a form of the mistake of fact defense.
For the minor, lying about his or her age in an online dating app or platform, like Tinder, is not a crime. It may violate the app or website’s terms of use. This can get the minor banned from the dating site. However, the minor may still be able to create a new account by using a different email address.
Is their dishonesty a defense to a sex crime like statutory rape?
A young person’s dishonesty about their age may be a defense to underage sex crimes, like statutory rape. Whether it is or not will depend on the state and the specific criminal charge. It will also depend on the minor’s true age. Some states only allow for the mistake-of-age defense if the minor was older than a certain age.
Most states do not allow this defense. Some states, like Utah, have passed laws banning the use of the mistake-of-age defense in cases involving sex with minors.2 In other states, like Texas, courts have forbidden the use of the defense. In Texas, for example, adults are legally expected to make sure that their sex partner is over the age of consent. A minor’s lie about his or her age, no matter how convincing, is not a legal defense.3
For example: A 13-year-old girl initiates a dating relationship with a 25-year-old man, claiming that she is 22. A friend of the girl also tells the man that she is 22. She claims to be a college student, and her social media profiles list her purported college. The man is charged with aggravated sexual assault after they have sexual intercourse, and gets convicted.4
Some of the other states that do not allow for this defense include:
- Connecticut,5
- Hawaii,6
- Idaho,7 and
- Nevada.8
Many states do allow for this defense, so long as the minor was over a certain age. The critical age and the burden of proof differ by state. In some states, it is an affirmative defense that the defendant has to prove. In others, once the defendant raises the defense, it is up to the prosecutor to overcome it.
Generally, the defendant has to have a good faith, honest, and reasonable belief that the minor was over the age of consent. If the minor lied about his or her age or showed a fake ID, it can be evidence that the defendant held this belief. States that allow for this defense include:
- Arizona,9
- Colorado,10
- Indiana,11
- New Mexico,12
- Oregon,13 and
- Washington.14
These states also use strict liability if the underage person’s real age was under a specific age, often 13 or 14. The reason for this is that minors under these ages are so clearly underage that no belief to the contrary is reasonable.
A couple of states allow for this defense in all cases, regardless of the age of the minor. These states are:
- Alaska,15 and
- Kentucky.16
In states that allow for this defense, a criminal defense lawyer can help use the minor’s dishonesty, as well as other facts in the case, to fight the criminal charges.
What is the age of consent?
The age of consent is the age at which someone can legally consent to sexual conduct. People under the age of consent are legally incapable of consenting to sex. If they agree to engage in sexual conduct, or even if they initiate it, their consent is not legally binding. Because it is not legally binding, any sexual conduct that follows is considered nonconsensual under the law.
The legal age of consent varies by state. In most states, it is 16 years old. In many others, it is 18 years old. In a few, it is 17 years old.
What if we were close in age?
Most states have close-in-age exceptions to statutory rape charges. Also known as Romeo and Juliet Laws, these protect people who were just over their state’s age of consent, if they have sex with someone who is just under the age of consent.
For example, Texas has a Romeo and Juliet Law. There, someone over the age of consent is not liable for statutory rape if:
- the person under the age of consent was at least 14 years old,
- both sexual partners are within 3 years of age, and
- the sex was consensual.17
What is the law in California?
In California, the age of consent is 18 years old.18 Unlike most other states, California does not have a close-in-age exception or Romeo and Juliet Law for its statutory rape laws.
However, California allows defendants facing sex crimes involving a minor to raise a mistake of fact defense. They can present evidence that they had a reasonable and actual belief that the minor was 18 or older.19 If there is sufficient evidence to prove this reasonable and actual belief, the burden shifts to law enforcement to prove, beyond a reasonable doubt, that it did not exist at the time of the offense.20
Legal References:
- California Penal Code 288(i) PC.
- Utah Code 76-2-304.5 (ruled constitutional in State v. Martinez, 52 P.3d 1276 (2002)).
- Fleming v. State, 455 S.W.3d 577 (2014).
- Facts from same.
- State v. Blake, 63 Conn. App. 536 (2001).
- State v. Buch, 926 P.2d 599 (1996).
- State v. Stiffler, 788 P.2d 220 (1990).
- Jenkins v. State, 877 P.2d 1063 (1994).
- Arizona Revised Statute 13-1407(B).
- CRS 18-1-503.5(1).
- Indiana Code 35-42-4-3.
- Perez v. State, 803 P.2d 249 (1990).
- Oregon Revised Statute 163.325(2).
- Revised Code of Washington 9A.44.030(2).
- Alaska Statute 11.41.445(b).
- Kentucky Revised Statute 510.030.
- Texas Penal Code 22.011(e)(2).
- California Penal Code 261.5 PC.
- California Criminal Jury Instructions (CALCRIM) No. 1070 and People v. Zeihm, 40 Cal.App.3d 1085 (1974).
- People v. Hernandez, 61 Cal.2d 529 (1964).
