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The commonwealth must prove offenders had a knowing, intentional or reckless frame of mind with regard to a victim’s age when charging them with luring children into a vehicle, the state Supreme Court has ruled. In so ruling, the court concluded that luring a child is not a strict liability crime with regard to the victim’s age, leaving a “mistake of age” defense available. “Contrary to the commonwealth’s contention, we disagree that the Legislature’s omission of a ‘mistake of age’ defense indicates its intent that the age requirement in Section 2910 be strictly enforced,” Chief Justice Ralph J. Cappy wrote for the majority. “Instead, when the Legislature has intended that an offender is to be strictly liable for a crime regardless of his or her knowledge of the victim’s age, it has done so explicitly.” The 6-1 court also found that “the fact that a criminal statute is silent with regard to a culpability requirement does not mean that the Legislature intended to dispense with the same.” Justice J. Michael Eakin was the lone dissenter. In its June 1 decision Commonwealth v. Gallagher, the Supreme Court affirmed the Superior Court’s decision, which had reversed Terrence Gallagher’s conviction for luring a child into a motor vehicle, the opinion said. Following charges in August 2002, Montgomery County Common Pleas Judge Kent H. Albright had sentenced Gallagher to two-to-four-years in prison for luring a child into a vehicle and furnishing alcohol to minors, the opinion said. Gallagher had argued that he believed a 17-year-old Montgomery County boy to be over 18, according to the opinion. The Superior Court reversed the trial court’s decision on child luring, reasoning that the “lack of a statutory ‘mistake of age’ defense did not free the commonwealth from its duty to prove that [Gallagher] acted intentionally, knowingly, or at the very least, recklessly as to [M.N.'s] age” as required by Section 302 of the Crimes Code, the opinion said. The Superior Court also rejected the trial court’s finding that Gallagher knew M.N. was a minor because that finding was contradicted by Gallagher’s acquittal on a corruption of minors charge, according to court papers. The commonwealth then appealed to the Supreme Court. According to the opinion, the relevant section, 2910, states that “a person who lures a child into a vehicle without the consent, express or implied, of the child’s parent or guardian, unless the circumstances reasonably indicate that the child is in need of assistance, commits a misdemeanor of the first degree.” The court said its plain reading of the statute “reveals that the statute does not express a mens rea requirement with regard to the age of the victim,” Cappy wrote. And in such instances, under Section 302 of the Crimes Code, a person must act intentionally or recklessly, the court said. The Crimes Code requires that criminal liability is not to be imposed “absent some level of culpability,” the court noted. Moreover, the court said, when the General Assembly intended that offenders be strictly liable for crimes regardless of their knowledge of a victim’s age, it had done so overtly. The majority pointed to examples such as instances of rape for victims under age 14 and promoting prostitution of a child under age 16, where the Legislature specifically did not allow “mistake of age” defenses, according to the opinion. The court also addressed the commonwealth’s argument that the Superior Court’s decision in Commonwealth v. Figueroa showed mens rea was only required for the luring element of the charge, the opinion said. In Figueroa, the Superior Court concluded that the commonwealth didn’t need to show there was an intent to harm, as long as it proved that an offender deliberately lured a child into a vehicle, the opinion said. But the Supreme Court said Gallagher differed from Figueroa because “we must construe the actual, stated requirement of the luring offense involving the essential element that ‘a child’ be the victim.” In fact, the court said, Figueroa supported the finding that mens rea should be assigned to the age element of Section 2910 because the court assigned that condition to the material element of luring. “We are mindful of the Legislature’s important goal of preventing kidnapping,” Cappy wrote. “In the absence of a clear legislative directive to the contrary, however, we cannot ignore the Legislature’s mandate . . . providing the default culpability for a material element of an offense when none is otherwise prescribed by law.” Justices Ronald D. Castille, Thomas G. Saylor, Max Baer, Cynthia A. Baldwin and James J. Fitzgerald III joined Cappy in the majority. In his dissenting opinion, Eakin said he thought the majority’s finding was wrong because “the Legislature’s clear and unambiguous purpose, protecting children, is undermined” by requiring proof of an offender’s knowledge of age. “Some children may look older than they are, some younger, but if one intentionally lures them into a vehicle, appearance should not give the lurer absolution,” Eakin wrote. The case arose in August 2002 when Gallagher stopped his car and began talking to M.N., a 17-year-old boy, the opinion said. Gallagher asked for directions and then offered M.N. a ride home, which M.N. accepted. Gallagher bought beer and took M.N. to his parked RV, where they drank together and Gallagher performed oral sex on M.N. twice, the opinion said. The next day, after Gallagher dropped M.N. off near his house, M.N. reported the incident to police. Montgomery County Assistant District Attorney Todd Stephens handled the appeal for the commonwealth. “I hope that the Legislature will remedy the effects of this ruling,” Stephens said, referring to its allowance of “mistake of age” defenses. Montgomery County assistant public defender Jeanette Dickerson represented Gallagher, according to the Public Defender’s Office. Dickerson did not return a call for comment by press time. (Copies of the 12-page opinion in Commonwealth v. Gallagher , PICS No. 07-0875, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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