A.R.S. 13-1407(B) Interpretation

A.R.S. 13-1407(B) provides: "It is a defense to a prosecution pursuant to sections 13-1404 and 13-1405 in which the victim's lack of consent is based on incapacity to consent because the victim was fifteen, sixteen or seventeen years of age if at the time the defendant engaged in the conduct constituting the offense the defendant did not know and could not reasonably have known the age of the victim." In State v. Gallegos, 178 Ariz. 1, 870 P.2d 1097 (1994), the defendant argued that the victim was "a dead body" at the time of sexual penetration and therefore not "a person" for purposes of 13-1405(A). 178 Ariz. at 8, 870 P.2d at 1104. He also argued that, even if the evidence established that the victim was alive at the time of penetration, he did not possess the culpable mental state because he "believed that the victim was dead at the time." Id. at 9-10, 870 P.2d at 1104-05. The Arizona Supreme Courtrejected these arguments on the ground that sexual conduct occurred before death, but also noted that had the legislature intended to establish such a mistaken belief as a defense, it would have expressly done so when it enacted A.R.S. 13-1407. Id. at 9-10, 870 P.2d at 1105-06.