Is Not Knowing the Age of Minor Victim a Viable Defense ?
A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he produces, directs, or promotes any performance which includes sexual conduct by a child less than 18 years of age . . . . 827.071(3), Fla. Stat. (1995).
It is unlawful for any person to knowingly possess a photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, includes any sexual conduct by a child . . . . 827.071(5), Fla. Stat. (1995).
Appellant argues that the phrases "knowing the character and content thereof" and "to knowingly possess" create an element that a defendant have knowledge that the victim's age is less than eighteen.
In Hicks v. State, 561 So. 2d 1284 (Fla. 2d DCA), rev. denied, 574 So. 2d 141 (Fla. 1990), the defendant's ignorance of the victim's age is not a viable defense to the charge of use of a child in a sexual performance.
Where the state has a compelling interest in protecting underage persons from being sexually abused or exploited, an exception is recognized to the general rule that every crime must include a specific intent, or a mens rea and, so, ignorance of the age of the victim, misrepresentation of age, or a defendant's bona fide belief that such victim is over the specified age are not viable defenses. Grady v. State, 701 So. 2d 1181 (Fla. 5th DCA 1997).
See also State v. Robinette, 652 So. 2d 926 (Fla. 1st DCA 1995)(violation of section 827.071(2) falls within the category of crimes which furthers the state's compelling interest to protect persons under the age of 18 from being sexually exploited, and on grounds of public policy, certain acts are made punishable without proof that the defendant understands the facts that give character to his act);
Schmitt v. State, 590 So. 2d 404 (Fla. 1991)(section 827.071 expresses an undeniable legislative intent to root out child exploitation);
State v. Sorakrai, 543 So. 2d 294 (Fla. 2d DCA 1989)(neither ignorance, misrepresentation, nor belief that victim was sixteen was a viable defense under section, 800.049(2), Florida Statutes).
Accordingly ,sections 827.071(3) and 827.071(5), Florida Statutes, which are aimed at protecting persons under the age of eighteen from being sexually exploited, do not require that a defendant know that the victim is less than eighteen years of age.