Conford, Kilkenny and Leonard. The opinion of the court was delivered by Kilkenny, J.A.D.
[105 NJSuper Page 568] Defendant was charged in an indictment with having, between August 1, 1967 and October 30, 1967, in the Township of Middle, in the County of Cape May, unlawfully and carnally abused a named woman-child under the age of 16 years and of the age of 12 years or over,
to wit, of the age of 14 years, he then and there being over the age of 16 years, contrary to the provisions of N.J.S. 2 A:138-1.
Defendant was tried before a jury and found guilty.
This statutory offense may be committed with or without the girl's consent. It is a high misdemeanor and is punishable by a fine of not more than $5,000, or by imprisonment for not more than 15 years, or both. Defendant was sentenced to a jail term of 250 days, the time already served.
It is undisputed that at the times of the alleged offense the girl was only 14 years old. Her birth certificate indicates the date of her birth as November 4, 1952. Defendant was 19 years old at the time of his trial on June 18, 1968. Accordingly, he more than satisfied the fixed statutory age of 16 years for the male when he "unlawfully and carnally abused" the girl, as those words are understood under the statute. He admitted in his testimony that he had sexual relations with her twice a week "from the beginning of September to the 28th of November." No force was used. But none need be, under the statute. As a result of the intercourse between them, the girl became pregnant.
The conceded facts above demonstrate a violation of N.J.S. 2 A:138-1 and require affirmance of the judgment of conviction.
The sole argument made on behalf of defendant on this appeal is that the trial court should have recognized as a defense in this statutory rape prosecution the fact that the accused reasonably believed that the prosecutrix was above the age of 16 years. He testified that she told him she was 16. The girl denied this. He said he believed that she was about 17, because "she looked older to me." The trial court sustained the State's objection to this line of questioning. In its charge to the jury, the trial court explained the three essentials of the statutory offense, viz., (1) the girl's age; (2) the young man's age; and (3) the sexual intercourse. The jury was told that the crime could be committed with or without the consent of the alleged victim. The jury
was not instructed that defendant's mistaken belief of the girl's age could be considered as a defense.
In 1 Wharton, Criminal Law (1957), § 321, it is stated:
"It is no defense that the defendant did not know that the female was under the statutory age of consent. It is immaterial that the defendant in good faith believed that the female was above the prohibited age, that he had exercised reasonable care to ascertain her age; that his belief, though erroneous, was reasonable; or that the defendant had been misled by the appearance or statements of the female.
The defendant acts at his peril that the female may in fact be under the age of consent. The fact that the defendant cannot assert as a defense his bona fide belief in the victim's age does not make ...