I learned yesterday, by reading Commonwealth v. Hooks, 2007 WL 901762 (Pa.Super.), 2007 PA Super 85 (Mar. 27), about a common-law rule that surprised me: "[F]or purposes of computing a person's age, one attains the age in question on the day prior to the anniversary of his birthdate." Hooks concluded that Pennsylvania law had largely departed from this rule, but the rule apparently did exist.

I was also struck by the rhetoric of the opinion. First a bit of background about the case: Hooks was sentenced for "aggravated indecent assault on a person less than 16 years of age, statutory sexual assault, and indecent assault"; he had had a sexual encounter (the details are contested) with a girl whom he had just met -- he was a door-to-door vacuum cleaner salesman, and she was a resident of one of the houses he visited -- on the day before her 16th birthday. He claimed it was consensual, she claimed it was not; the jury acquitted him of rape by forcible compulsion, indecent exposure, and sexual assault, but convicted him of statutory sexual assault, aggravated indecent assault with a person less than 16 years of age and indecent assault; he was acquitted of the remaining charges. The only legal question in the appeal had to do with the under-16 charge (which did not require a showing of lack of consent at trial), given the girl's birthday. For those who care about such things, I note that Hooks was 23.

The court had to choose whether to apply the vestiges of the common law rule, or to follow the modern Pennsylvania (and nationwide) trend, under which a person becomes 16 on her 16th birthday, not the day before. Here is what strikes me as the heart of its reasoning:

Pursuant to section 1921, we must look to the occasion and necessity for the statute among other considerations--the mischief to be remedied, the object to be attained, the former law, if any, including other statutes upon the same or similar subjects. This section, perhaps more than any other of the Statutory Construction Act, sharpens the implication that the statute creating the criminal charges under appeal must be construed to provide maximum protection to children 16 and under, maximum interception and assurance of trial for adult perpetrators of child sexual assault, the greatest attainment of protection of society against child sexual predators, and the merging of these efforts and provisions with the juvenile law, Megan's Law, and child pornography and child sexual solicitation laws which have evolved between the enactment of the Juvenile Act in 1903 and the most recent laws protecting children against child predators....

The balance between strict construction of penal statutes and other related statutes, which can be more liberally construed, is exhibited in Iafrate II, supra [a Pennsylvania Supreme Court decision rejecting the common-law rule in a different context]. It is essential that child victims of sexual assault receive the same protection as that provided to juvenile offenders in Iafrate II, as the goal of the statutes subject of our consideration, like the Juvenile Act, is the care and protection of the child....

Long before Iafrate, the Pennsylvania Supreme Court in Commonwealth ex rel. Fisher, 213 Pa. 48, 62 A. 198 (1905), which declared the Juvenile Act to be valid, made clear that children are in a special class. In the Court's Opinion Justice Brown calls attention to the fact that the protecting arm of the act is for all who have not attained 16 years of age, and who may need its protection....

For the proper enforcement of [various] long standing statutes [aimed at protecting children] and more recent ones dealing with the age of minors, such as the statutes considered herein, it is crucial that the common sense anniversary rule be applied.

This common sense application is particularly relevant to section 3121(c) of Pennsylvania's rape statute which specifically categorizes as Rape of a child, sexual intercourse with a complainant who is less than 13 years of age. It is ludicrous to suggest that the legislature of this Commonwealth, who enacted a statute to protect children from sexual aggressors and that is dependent upon the age of the particular victim for its enforcement, intended that for purposes of the statute, child victims would turn 13 the day before their 13th birthdays.

When a common law rule, in effect, would pervert justice and contravene legislative and societal needs, and it is not in the best interests of justice or public policy, a change by the court is mandated....

Now if Hooks indeed raped the girl (or had sex short of intercourse with her against her will), he deserves to be punished. If he had sex with an under-16-year-old girl, applying statutory rape laws also makes perfect sense. And I think the revised -- you turn 16 on your 16th birthday -- rule is more reasonable, because more expected, than the common-law rule, though I also acknowledge there's some cost in shifting from one rule to another, especially when the new rule punishes people for what they may have reasonably thought was allowed under the own rule. (Imagine these were consensual lovers who were waiting until the girl was legal to have sex, and they actually did their research, which led them to the old rule.)

But I don't quite see how all this rhetoric about "pervert[ing] justice," "maximum protection to children 16 and under," and "the greatest attainment of protection of society against child sexual predators" fits with the case in which the debate is about one day. Hooks would have not been punished under the indecent-assault-under-16 law if the incident had happened one day later; everyone agrees with that. The law would not have treated the 16-year-old as being in need of protection against consensual sex (nonconsensual sex is a different matter, but he was charged on that separately, and partly convicted and partly acquitted). How would there be any material loss of "protection of society against child sexual predators" if the court interpreted the law as allowing the 16-year-old-minus-1-day as being capable of consenting just as the 16-year-old is capable? Where would be the "perversion of justice" in such a holding?

One could argue that there may be perversion of justice in changing a rule to a defendant's detriment, when the defendant could have reasonably relied on it (highly unlikely here, but possible in my hypothetical about the lovers who let out their sexual frustrations in doing legal research about when they can lawfully have sex). But -- again focusing on the statutory rape charge at the heart of the case, and not on the charges that required a showing of lack of consent -- it's hard to see perversion of justice in sticking with an old rule that would set the age of consent one day earlier than the majority thinks reasonable.

The dissenting judge, I think, articulated this point right (though I can't speak to his more general point about how the earlier Pennsylvania precedents should be construed) (emphasis added):

The Majority sidesteps the approach utilized in Iafrate because it apparently feels compelled to offer an interpretation that favors to the maximum degree the interests of society in protecting minors even if it means ignoring a fundamental principle of statutory construction within the realm of criminal law [the principle that penal statutes are to be strictly construed in the defendant's favor]. The Majority creates a compelling argument and, while I certainly favor protecting minors, I am unwilling to eschew long established rules of statutory construction to extend the scope of a penal provision a few more hours when it is clear that the length of the protection is essentially an arbitrary choice. In the court of public opinion, Appellant might rightfully be condemned as a "sleazeball" for his actions. In a court of law, however, Appellant is supposed to be deserving of the protections afforded all Americans, one of which compels the strict construction of penal provisions. Instead of adhering to this principle, the Majority utilizes a principle of broad construction.