The appellant was convicted of a charge of sexual intercourse with a female under the age of sixteen years, HRS § 768-21. At a trial by jury the appellant sought to raise the defense of reasonable mistake of fact (as to the age of the female) as a question for the jury to consider. The trial court refused to give an instruction on this issue.
On appeal, appellant strongly urges upon this court that the better rule of law is to allow a defense of a mistake of fact concerning the age of the prosecutrix. In support of this position appellant cites the case of People v. Hernandez, 61 Cal. 2d 529, 393 P.2d 673, 39 Cal. Rptr. 361 (1964). In Hernandez the California Supreme Court, overruling its former decisions, held that a reasonable belief that the victim was over the age of consent was a defense in a prosecution for statutory rape.
Since the Hernandez decision it appears that no other jurisdiction has made a judicial departure from the prevailing view that in a case involving statutory rape it is the doing of the act that is criminal and not the bad intent of the perpetrator.
Several jurisdictions have, subsequent to the decision in *233Hernandez, specifically rejected the rationale of the California court. These decisions adhere to the rule that when statutory rape is charged, the defendant’s reasonable belief as to the knowledge of the girl’s age is immaterial. State v. Superior Court of Pima County, 104 Ariz. 440, 454 P.2d 982 (1969); State v. Moore, 105 N.J. Super. 567, 253 A.2d 579 (1969); State v. Fulks, 83 S.D. 433, 160 N.W.2d 418 (1968).
HRS § 768-21 has been construed as negating any element of criminal intent. We disagree with appellant that this rationale should be overturned. Our reasons are well stated in Territory v. Delos Santos, 42 Haw. 102, 104-108 (1957). The reasoning of Delos Santos has been reaffirmed by those decisions repudiating the result reached by the California court in Hernandez.
The offense here is of that class which, by reason of an unbroken line of judicial holdings, it can be said that the statute denounces the mere doing of the act as criminal, regardless of whether the perpetrator had a bad mind, the generalized intent to engage in a course of criminal conduct. Second degree rape is a recognized judicial exception to the general rule that a mistake of fact is a defense to the charge:
‘This [unlawful sexual intercourse with a girl under the age of consent] seems to be at variance with the familiar “reasonable mistake of fact” doctrine, but it is a recognized exception due to the fact that what was done would have been unlawful and highly immoral even under the facts as the offender supposed them to be.’ Perkins on Criminal Law, 1957, p. 127.
We need go no further. We do not think the predatory nature of man has changed in the last decade. If mistake of fact is to be the standard of permissive conduct, the legislature is the appropriate forum to indulge in that decision. Superior Court of Pima County, supra, 454 P.2d at 985.
The other issues raised by appellant are lacking in merit.
*234John S. Edmunds (Brook Hart, Public Defender, and Richard L. Rost, Deputy Public Defender, with him on the brief), for defendant-appellant. Richard D. Wurdeman, Deputy Prosecuting Attorney {Barry Chung, Prosecuting Attorney, with him on the brief), for plaintiff-appellee.Judgment of the trial court is affirmed.