(d)It is a defense to prosecution under Subsection (a)(2) that the conduct consisted of medical care for the child and did not include any contact between the anus or sexual organ of the child and the mouth, anus, or sexual organ of the actor or a third party.

(e)It is an affirmative defense to prosecution under Subsection (a)(2):

(1)that the actor was the spouse of the child at the time of the offense; or
(2)that: (A)the actor was not more than three years older than the victim and at the time of the offense:

(i)was not required under Chapter 62, Code of Criminal Procedure, to register for life as a sex offender; or

(ii)was not a person who under Chapter 62, Code of Criminal Procedure, had a reportable conviction or adjudication for an offense under this section; and

(B)the victim:

(i)was a child of 14 years of age or older; and

(ii)was not a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Section 25.01 .

...

FACTS

Appellant testified that in April of 2007 he received a text message from a girl, K.M, who said that she had obtained his phone number from her friend. When Appellant asked her age, she replied that she was 22 years old. K.M. was actually 13 years old. The two corresponded by text message and talked on the phone for a week or two and then arranged to meet at the mall for a date. Both Appellant and K.M. testified that on their first date they went to a movie and drag races at a race track, after which Appellant drove K.M. home. Appellant stated that K.M. told him that her mother and step-father lived with her because they had lost their home. After their second date to dinner and a movie, Appellant asked K.M. if she wanted to spend the night with him at the hotel where he had been staying. Appellant testified that K.M. said that she did want to go to his hotel but that she was not ready for them to have sexual relations at that time. Appellant said that he agreed and that they went to sleep upon arrival at the hotel. Appellant testified that when he awoke early the next morning, K.M. was "messing with" him in a way that indicated that she wanted to have sex. He asked her if she was sure, and she said that she was. Appellant and K.M. continued dating and having sex from April to May of 2007. Later that year, K .M.'s mom found a love letter that Appellant had written to K.M. Appellant, who was 25 years old at the time, wrote in the letter, "I no you 4 years or 5 years younger then me but I love you." When her mom confronted her about the letter, K.M. initially denied the relationship. When K.M. admitted that she did have sex with Appellant, her mom called the police. Appellant was cooperative during questioning by the police and told the officer about the relationship. He told the officer that he did not know that K.M. was under age when he dated her. At trial, Appellant testified that he believed that K.M. was 22 years of age because both K.M. and her friend had told him that she was 22 years old, and because K.M. had told him that she was a student at the University of North Texas majoring in criminal justice. He also testified that he had seen on her MySpace page, which was entered into evidence by the defense, that she was 20 years old and was a student at UNT. The MySpace page entered into evidence by the defense also contained photos of K.M. that were taken around the time she was dating Appellant. K.M. denied having told Appellant that she was 22 years old and testified that someone else must have changed her MySpace page. She said she did not know if Appellant knew that she was under age when they dated. The State presented evidence that Appellant had previously dated a friend of K.M.'s mom, who sometimes babysat K.M. when she was younger. The State said that K.M. would have been 11 years old when Appellant first met her at her mom's house. K.M. said that Appellant had been to her mother's house in the past but she did not know if he remembered meeting her then.2

Appellant agreed to a ten-year probated sentence and retained the right to appeal the trial court's denial of his motion to quash. He appealed, arguing that Penal Code Section 22.021 is unconstitutional due to its failure to require proof that he had knowledge that his victim was younger than 17 years of age and for not recognizing an affirmative defense based on the defendant's reasonable belief that the victim was 17 years of age or older....

Appellant presents a facial challenge to the statute's lack of a mens rea as to the victim's age. He raises an as-applied challenge to the court's failure to allow him to present a mistake-of-fact defense. Specifically, he argues that he had an objectively and subjectively reasonable belief that the victim in this case was over the age of 17. Appellant states that under early English and American Common Law, the knowing act of engaging in consensual sex with another when not sanctioned by the legal bonds of marriage was a legal and moral wrong, and that legal wrong sufficed as a substitute for mens rea in the statutory rape context. Appellant argues that, because such acts are no longer legally wrong, there is nothing to substitute for a mens rea element in Section 22.021 and it is unconstitutional to enforce the statute without the mens rea element that is essential in every felony charge. Appellant claims that in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), the United States Supreme Court extended the Due Process Clause's protection of liberty to the intimate choices of unmarried persons. Appellant cites XCitement, stating that when a statute is completely bereft of a scienter requirement as to the age of the victim, and the age of the victim is the crucial element separating legal innocence from wrongful conduct, the statute raises serious constitutional doubts. Appellant argues that, because the physical act identified in Section 22.021(a)(1)(B)(iii) is entitled to constitutional protection, the complete absence of a mens rea requirement as to the age of the victim renders the statute constitutionally void. Appellant states that the framers of the Texas Constitution would have considered an ignorance-of-fact defense as a fundamental right so as to not punish those who, through no fault of their own, have been misled. Finally, Appellant argues that it is unfair for him to be considered a "sexual predator" when no evidence exists of any intent to do a legal or moral wrong and no evidence exists to indicate that he is a threat to the community.

...

CASE LAW

The mistake-of-age defense was raised and rejected in the 1876 English case of Regina v. Prince. 13 Cox, Criminal Cases 138 (Eng.Crim.App.1876). In Prince, the defendant was charged with unlawfully taking a girl under the age of 16 out of the possession of her father against his will. The defendant claimed that he acted on the reasonable belief that the girl was 18 years of age. The court held that it was no defense that he thought he was committing a different kind of wrong from that which he was, in fact, committing, it being wrong to remove a daughter, even one over the age of 16, from her father's household. Id. at 14142. Citing previous cases, the court stated that "any man who dealt with an unmarried female did so at his own peril, and if she turned out to be under sixteen years old he was liable under this statute." Id . at 139. Although the issue in Prince was mistake of age as to abduction, early American courts applied Prince to statutory rape as well. The reasoning from Prince has been used to justify denying the mistake-of-age defense and imposing strict liability against those accused of statutory rape.3

In Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), the Supreme Court discussed strict liability offenses and noted that, while there must usually be a "vicious will" to constitute a crime, there are exceptions to this rule, including rape cases in which age is the determinative factor, despite the defendant's reasonable belief that the victim was over the age of consent. For strict liability crimes, there is no "guilty mind" requirement, and the actor does not have to possess the mens rea to commit any crime. In such strict-liability offenses, the actor's state of mind is irrelevant, and he is guilty of the crime at the moment he commits the prohibited act. Most strict liability statutes are associated with the protection of public health, safety, or welfare, such as those involving air and water pollution, sale of adulterated food, and traffic and motor-vehicle laws. Id. at 25455. Statutory rape, however, is distinguishable in that the act of sexual intercourse is not a crime except in certain circumstances, such as when the other person has not consented to the act or when the other person is deemed unable to consent due to his or her age.

...

CONCLUSION

Texas Penal Code Section 22.021 is not unconstitutional under the Due Process Clause of the Fourteenth Amendment or the Due Course of Law provision of the Texas Constitution for failing to require the State to prove that the defendant had a culpable mental state regarding the victim's age or for failure to recognize an affirmative defense based on the defendant's belief that the victim was 17 years of age or older. The decision of the court of appeals is affirmed.

For the reasons set out in my concurring opinions in Celis v. State1 and Farmer v. State,2 I believe that the Texas statutory mistake-of-fact defense already applies to the offense of consensual statutory rape. Nonetheless, I recognize that this is not the current state of the law in Texas, and therefore I reluctantly join the majority opinion.

Quoted:
He's not going to get a fair trial and he knows it.
The law, as it stands, is unreasonable and unfair.
So yeah, I don't really blame him if he decides to become a fugitive.  Hopefully he's got the assets to make it in exile.