We look to the common law origins of a crime in deciding the requisite mens rea when the statute is silent. See State v. Ayer, 136 N.H. 191, 194, 612 A.2d 923, 925 (1992). Indecent exposure was considered a general intent crime at common law.
In spite of the fact that there is no mens rea expressed in a statute, one cannot be convicted of a crime without proof that the act was accompanied by a culpable mental state. State v. Ayer, 136 N.H. 191, 193, 612 A.2d 923, 924 (1992); RSA 626:2, I (1986) ("A person is guilty of . . . a felony . . . only if he acts purposely, knowingly, recklessly, or negligently, as the law may require, with respect to each material element of the offense."). "Where a specific mental state is not provided for the offense, we read RSA 626:2, I, as requiring proof of a culpable mental state which is appropriate in light of the nature of the offense and the policy considerations for punishing the conduct in question."
When a defendant charged with sexual assault claims that the alleged victim consented, the State's burden is not to prove the defendant's subjective state of mind but "whether a reasonable person in the circumstances would have understood that the victim did not consent." State v. Ayer, 136 N.H. 191, 196, 612 A.2d 923, 926 (1992). The inquiry focuses on the victim's objective manifestations of her unwillingness to engage in the charged conduct.
The requisite intent for the crime of aggravated felonious sexual assault is that the defendant acted knowingly. State v. Ayer, 136 N.H. 191, 194-95, 612 A.2d 923, 925 (1992). "A person acts knowingly with respect to conduct or to a circumstance that is a material element of an offense when he is aware that his conduct is of such nature or that such circumstances exist."
We agree with the appellate courts from a number of other states that have rejected the argument made by Maxwell and have concluded that the State may impose liability for attempted statutory rape.See State v. Sorabella, 277 Conn. 155, 891 A.2d 897 (2006); State v. James, 265 Neb. 243, 248, 655 N.W.2d 891, 896 (2003); State v. Davis, 108 N.H. 158, 162, 229 A.2d 842, 845 (1967), overruled on other grounds, State v. Ayer, 136 N.H. 191, 612 A.2d 923 (1992); In the Matter of Brion, 161 A.D.2d 832, 834, 555 N.Y.S.2d 881, 883 (N.Y.App.Div. 1990); State v. Sines, 158 N.C.App. 79, 85, 579 S.E.2d 895, 900, cert. denied, 357 N.C. 468, 587 S.E.2d 69 (2003); State v. Chhom, 128 Wash.2d 739, 743, 911 P.2d 1014, 1016-17 (1996); State v. Brienzo, 267 Wis.2d 349, 363-64, 671 N.W.2d 700, 707 (Wis.App.), review denied, 268 Wis.2d 133, 673 N.W.2d 691 (2003).
Because the existence or absence of consent is an objective determination to be made from facts observable by a reasonable person, the jury's finding must turn on what the complainant said and did. Seeid. at 717 (explaining that although "consent" is "commonly regarded as referring to the state of mind of the complainant in a sexual assault case, it cannot be viewed as a wholly subjective concept," so "a defendant should not be found guilty because of some undisclosed mental reservation on the part of the complainant," but instead, "whether a complainant has consented to intercourse depends upon [the complainant's] manifestations of such consent as reasonably construed"); cf.State v. Ayer , 136 N.H. 191, 612 A.2d 923, 926 (N.H. 1992) (noting that if a victim "objectively communicates lack of consent and the defendant subjectively fails to receive the message, [the defendant] is guilty," since the "appropriate inquiry is whether a reasonable person in the circumstances would have understood that the victim did not consent"). The question is whether the State has proven beyond a reasonable doubt, from the admissible evidence, that the defendant did not have a willing partner.
However, we have also explained that, based upon its common law ancestry, the mental state of "knowingly" corresponds to the concept of possessing general, rather than specific, criminal intent. SeeState v. Ayer, 136 N.H. 191, 194, 612 A.2d 923 (1992) ("In general, however, ‘purpose’ corresponds loosely with the common-law concept of specific intent, while ‘knowledge’ corresponds loosely with the concept of general intent." (quotation omitted)).
“Purposely” is a heightened mental state as compared to “knowingly,” seeRSA 626:2, II, III (2007), and is defined as follows: “A person acts purposely with respect to a material element of an offense when his conscious object is to cause the result or engage in the conduct that comprises the element.” RSA 626:2, II(a); seeState v. Holmes, 154 N.H. 723, 725, 920 A.2d 632 (2007) (“the Criminal Code generally uses the term ‘purposely’ in place of specific intent”); State v. Ayer, 136 N.H. 191, 194, 612 A.2d 923 (1992) (“specific intent commonly refers to a special mental element above and beyond that required with respect to the criminal act itself”). “Knowingly” is defined as follows: “A person acts knowingly with respect to conduct or to a circumstance that is a material element of an offense when he is aware that his conduct is of such nature or that such circumstances exist.”
"Purposely" is a heightened mental state as compared to "knowingly," see RSA 626:2, II, III (2007), and is defined as follows: "A person acts purposely with respect to a material element of an offense when his conscious object is to cause the result or engage in the conduct that comprises the element." RSA 626:2, II(a); seeState v. Holmes, 154 N.H. 723, 725, 920 A.2d 632 (2007) ("the Criminal Code generally uses the term ‘purposely’ in place of specific intent"); State v. Ayer, 136 N.H. 191, 194, 612 A.2d 923 (1992) ("specific intent commonly refers to a special mental element above and beyond that required with respect to the criminal act itself"). "Knowingly" is defined as follows: "A person acts knowingly with respect to conduct or to a circumstance that is a material element of an offense when he is aware that his conduct is of such nature or that such circumstances exist."
Rather, we apply our well-settled precedent: “Where a specific mental state is not provided for the offense, we read RSA 626:2, I, as requiring proof of a culpable mental state which is appropriate in light of the nature of the offense and the policy considerations for punishing the conduct in question.” State v. Ayer, 136 N.H. 191, 193, 612 A.2d 923 (1992) (quotations, brackets and ellipsis omitted). Accordingly, we must determine the “culpable mental state which is appropriate in light of the nature of the offense and the policy considerations for punishing the conduct in question.”