(dissenting). Defendant was convicted by a jury of criminal sexual conduct in the third degree, MCL 750.520d(l)(a); MSA 28.788(4)(l)(a), on March 7, 1980. Prior to trial, defendant moved to be allowed to present the defense of mistake of age, arguing that consciousness of wrongdoing is an essential element of criminal liability. Defendant’s motion was denied. *251Defendant’s entire defense at trial was mistake of fact. He claimed that he honestly believed that the prosecutrix was 17 years of age at the time of the offense. The Court of Appeals affirmed defendant’s conviction in an unpublished per curiam opinion.
Michigan has a long history of insistence on the establishment of mens rea in felony cases. In Pond v People, 8 Mich 150, 174 (1860), Justice Campbell observed:
"A criminal intent is a necessary ingredient of every crime. And therefore it is well remarked by Baron Parke in Regina v Thurborn, 2 C & K 832, that 'as the rule of law, founded on justice and reason, is that actus non facit reum, nisi mens sit rea, the guilt of the accused must depend on the circumstances as they appear to him.’ And Mr. Bishop has expressed the same rule very clearly, by declaring that 'in all cases where a party, without fault or carelessness, is misled concerning facts, and acts as he would be justified in doing if the facts were what he believed them to be, he is legally as he is morally innocent’: 1 Bish Cr L, § 242.”
Justice Fitzgerald adverted to this principle in quoting Gegan, Criminal Homicide in Revised New York Penal Law, 12 NY L Forum 565, 586 (1966), in People v Aaron, 409 Mich 672, 708; 299 NW2d 304 (1980):
" 'If one had to choose the most basic principle of the criminal law in general * * * it would be that criminal liability for causing a particular result is not justified in the absence of some culpable mental state in respect to that result * *
Disallowing a defense of reasonable mistake of fact obviates proof of mens rea. While this practice has been approved in misdemeanor cases, we are cited no case, nor has our research uncovered one, *252wherein this Court has sanctioned it in felony cases.
Recognizing the defense of a reasonable mistake of age to a charge of statutory rape, however, does not imply that the defendant must have in fact known the person was under age. Instead, when the defense is raised, the factfinder need only determine whether the defendant honestly believed that the prosecutrix was an adult and, if so, whether the belief was reasonable.
Reasonable mistake of age should not be confused with the rule that a person under the statutory age is legally incapable of consent. Consent of the underage person is not the issue here. It is the defendant’s state of mind. The gravamen of the charged offense is voluntary intercourse with an underage person. Just as proof of coercion of a defendant would defeat the charge, so should defendant’s reasonable mistake of the fact of age. In neither instance could there be mens rea, for in each case there would be no free election to do the thing forbidden.
Levin, J., concurred with Kavanagh, J.