Mark Fleming was 24 years old when he started dating a young woman in 2007. Her Facebook page said she was a college student, and a mutual friend told him she was 22 years old.
Several months later, Denton police arrested Fleming, accusing him of sexually assaulting a minor. The young woman was actually 14.
Fleming was convicted in 2007 and sentenced to 10 years’ probation. On Wednesday, his lawyer Richard Gladden appealed his case to the state’s highest criminal court, saying a state law that does not require prosecutors to show a defendant intended to have sex with a minor is unconstitutional.
"The [Texas] Constitution guarantees that people who have done something wrong and knew they shouldn't do something wrong are held accountable," Gladden told the Court of Criminal Appeals. Fleming, he said, "never knew he did anything wrong."
Catherine Luft, a lawyer with the Denton County district attorney’s office, told the court that there is no constitutional requirement that prosecutors prove the defendant knew the victim’s real age, and that numerous facts suggest that Fleming indeed knew the young woman's age when they began their relationship because they had met before, though Fleming disputes this.
“The facts are what count,” Luft told the court, “and the facts aren’t good for him."
The court did not indicate when it would rule on Fleming’s appeal.
In Texas and most other states, sexual assault of a child is one of a small number of crimes in which there is no requirement that the defendant had what lawyers call “mens rea,” Latin for a “guilty mind.” Gladden appealed Fleming’s case to the Court of Criminal Appeals two years ago. It sent the case back to a lower appeals court, which did not rule, and the Court of Criminal Appeals asked Gladden to return so they could decide whether the lack of a “mens rea” requirement goes against Fleming’s rights under the Texas Constitution.
Fleming met the young woman in April 2007 through a mutual friend, and after exchanging text messages they met in person and began a physical relationship. Another friend of the young woman told Fleming she was indeed 22 years old, according to court documents, and web pages on MySpace and Facebook listed her as a student at the University of North Texas. Gladden said that this shows Fleming made an effort to make sure she was of legal age. But the young woman said in court that someone might have hacked into her MySpace and Facebook pages.
Gladden told The Texas Tribune that most court decisions saying the prosecution does not have to prove the defendant knew the victim’s age were historically based on situations where the sex was illegal anyway, like adultery. “Of course today, very few states have any law against adultery,” he said.
The eight judges appeared to have mixed views on whether the lack of a requirement for prosecutors is unconstitutional. “You’re asking us to overcome over a hundred years of precedent,” Judge Michael Keasler told Gladden. “The U.S. Supreme Court has not ruled this unconstitutional.”
Gladden countered that the U.S. Supreme Court had never considered the matter.
Luft told the court that Fleming had met the young woman several years earlier, when she was 11 years old. “That fact is seriously disputed,” Gladden responded, adding that new facts should be decided by a jury in a trial, not by the appeals court.
But Luft countered that it was constitutional to not require proof that he knew the victim’s age, because the point of the law was to “protect younger victims.”
Keasler nodded in agreement and said that it was up to the Legislature to decide whether to require such proof from prosecutors. “The state has an interest in children remaining children,” he said, adding that the point of the law was to protect “childhood itself."
Judge Cathy Cochran asked whether laws should provide a “safety valve” for cases in which the defendant was genuinely fooled by the underage victim, because the repercussions of a sexual assault conviction include registry on a sex offender list for life.
“The Legislature can change this if they want to,” Keasler responded. “Nothing is unconstitutional just because it’s harsh.”