(dissenting):
127 I dissent from the majority opinion. It is my view that Utah Code Ann. § 76-5-401 (1999) does not establish a strict liability offense; therefore, I would reverse the trial court's ruling and remand the case to allow the defendant to withdraw his conditional plea.
[ 28 The basic principle of criminal Hability in our system is expressed by the maxim, actus not facit reum nisi mens sit rea-an act does not make one guilty unless one's mind is guilty. The Supreme Court of the United States has acknowledged that legislatures may eliminate the mens rea element from certain crimes. However, the Court has made the following doctrinal observations: "[Wle must construe [a] statute in light of the background rules of the common law ... in which the requirement of some mens rea for a crime is firmly embedded." Staples v. United States, 511 U.S. 600, 605, 114 S.Ct. 1793, 1797, 128 L.Ed.2d 608 (1994). "'[Thhe existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American - criminal - jurisprudence.!" United States v. United States Gypsum Co., 438 U.S. 422, 436, 98 S.Ct. 2864, 2873, 57 L.Ed.2d 854 (1978) (citation omitted).
The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.
Morissette v. United States, 342 U.S. 246, 250, 72 S.Ct. 240, 243, 96 L.Ed. 288 (1952). "There can be no doubt that this established concept has influenced our interpretation of criminal statutes.... Relying on the strength of the traditional rule, we have stated that offenses that require no mens rea generally are disfavored...." Staples, 511 U.S. at 605-06, 114 S.Ct. 1793 (emphasis added); see also Liparota v. United States, 471 U.S. 419, 426, 105 S.Ct. 2084, 2088, 85 L.Ed.2d 434 (1985); cf. United States Gypsum, 438 U.S. at 438, 98 S.Ct. 2864.
129 Courts have generally looked to the following factors to determine whether a statute should be interpreted as imposing strict liability: (1) the statute's legislative history, title, or context; (2) other statutes that may provide guidance as to whether *121strict Hability was intended; (8) the severity of the punishment-the greater the possible punishment, the more likely mens rea is required; (4) the seriousness of the harm to the public which may be expected to follow from the forbidden conduct; (5) the defendant's opportunity to ascertain the true facts-the harder to find out the these facts, the more likely the Legislature meant to require fault in not knowing; (6) the difficulty prosecuting officials would have in proving a mental state for this type of crime; and (7) the number of prosecutions expected-the greater the number, the more likely the legislature meant to impose strict liability. See 1 Wayne R. LaFave & Austin W. Scott, Substantive Criminal Law § 3.8 (1986); see also Reese v. State, 106 N.M. 498, 745 P.2d 1146, 1150-51 (1987) (Ransom, J., concurring); State v. Stoehr, 134 Wis.2d 66, 396 N.W.2d 177, 180 (1986); of State v. Semakula, 88 Wash.App. 719, 946 P.2d 795, 797-98 (1997).
T 30 The majority concludes that the crime of unlawfal sexual activity with a child is a strict dability offense because Utah Code Ann. § 76-2-304.5 (1999) removes the affirmative defense of mistake as to age as a defense to the crime. The majority supports this conclusion by reference to this court's ruling in W.C.P. v. State, 1999 UT App 35, 974 P.2d 302. In light of the traditional rule that strict liability crimes are disfavored-especially when punishment is great-together with an analysis of the aforesaid factors, our statutory scheme and caselaw, I do not interpret section 76-5-401 as a strict liability offense for the following reasons.
T 31 Analyzing the first factor-the legislative history of the statute, its title, and its context-I do not find support for the proposition that the Legislature intended section 76-5-401 to describe a strict liability offense. The State claims that the legislative history of section 76-5-401 supports the argument that the Legislature intended a strict liability offense. However, the legislative statements cited by the State merely shed light upon the 1998 amendments to section 76-5401.1 Furthermore, neither the title nor the context2 of section 76-5-401 lends support to the proposition that unlawful sexual activity with a minor should be construed as a strict liability offense.
132 Additionally, the plain language of Utah Code Ann. § 76-2-102 (1999), the statute pertaining to strict liability, does not support the majority's view that section 76-5-401 is a strict liability offense. Specifically, section 76-2-102 states that "(aln offense shall involve strict liability if the statute defining the offense clearly indicates a legislative purpose to impose criminal responsibility for commission of the conduct prohibited by the statute without requiring proof of any culpable mental state." Utah Code Ann. § 76-2-102 (1999) (emphasis added). Here, the statute defining unlawful sexual activity with a minor, section 76-5-401, does not clearly indicate a legislative purpose to impose strict liability. Although section 76-5-401 is silent concerning mens rea, "silence on this point by itself does not necessarily suggest that [the legislature] intended to dispense with a conventional mens rea element.... '[Thhe existence of mens rea is the rule of, rather than the exception to, the principles of Anglo-American - jurispru-denee.'" Staples, 511 U.S. at 605, 114 S.Ct. 1793 (quoting United States Gypsum, 438 U.S. at 436, 98 S.Ct. 2864). Also, the crime of unlawful sexual activity with a minor is a class B misdemeanor, rather than a third degree felony, if "the defendant establishes by a preponderance of the evidence the mitigating factor that the defendant is less than four years older than the minor at the time the sexual activity occurred...." Utah Code Ann. § 76-5-401(8) (1999). The Legislature's inclusion of a mitigating factor in the statute defining the offense indicates that the Legislature considered the culpability of the defendant a relevant factor with respect to the seriousness of the crime. Although miti*122gating factors may or may not specifically focus on a defendant's mental state, it is apparent that under section 76-5-401, the Legislature has determined that a defendant greater than four years older than the minor is more culpable, thereby implicating that defendant's mental state. To the extent that mitigation based on affirmative evidence of age differential implicates a defendant's mental state, such a provision is inconsistent with the concept of strict liability.3 Consequently, section 76-5-401 does not clearly indicate a legislative purpose to impose criminal responsibility without requiring proof of any culpable mental state.
133 The second factor used by courts to determine whether a statute should be interpreted as a strict lability offense-whether other statutes and case law support strict liability-also cuts against the majority's position. Specifically, I do not find our decision in W.C.P. v. State, 1999 UT App. 35, 974 P.2d 302, as supporting the conclusion that section 76-5-401 is a strict liability offense. It is true that W.C.P. relied, in part, on the same section that the majority considers disposi-tive.4 However, section 76-2-304.5 was only briefly alluded to as one of several statutory provisions that persuaded this court to find that the crime of rape of a child was a strict liability offense. See id. at ¶¶ 9-10. Specifically, W.C.P. placed great emphasis on the fact that a child under the age of fourteen cannot, as a matter of law, consent to sexual intercourse. See id. at 19. W.C.P. also focused on several other statutes that provide added protections for children under fourteen as well as statutes that relax the rules of evidence as they pertain to child victims of sexual abuse who are under fourteen years old. See id. at ¶ 10. Indeed, the overall focus of W.C.P. supports the notion that unlawful sexual activity with a minor fourteen years of age or older is not a strict liability offense, while rape of a child under fourteen years old is a strict liability offense.
€34 I do not agree with the proposition that this court should look to other sections in the criminal code to determine whether the Legislature intended a crime to be one of strict liability because the statute governing strict liability offenses in this jurisdiction explicitly states that the statute defining the crime must clearly indicate a legislative purpose to impose strict liability. See Utah Code Ann. § 76-2-304.5 (1999). However, looking at the criminal code as a whole, as this court did in W.C.P., I am not persuaded that the crime of unlawful sexual activity with a minor is a strict lability offense. Here, the defendant was charged with the crime of unlawful sexual activity with a minor, which defines minor as "a person who is 14 years of age or older, but younger than 16 years of age...." Utah Code Ann. § 76-5-401(1) (1999). In contrast, the crime at issue in W.CP., rape of a child, states that "[al person commits rape of a child when the person has sexual intercourse with a child who is under the age of 14." Utah Code Ann. § 76-5-402.1(1) (1999) (emphasis added). All the statutes that this court found as supportive of a clear legislative intent to impose strict liability, except the statute eliminating mistake of age as an affirmative defense, provided special protection to minors under fourteen years of age. As stated above, section 76-5-401 prohibits sexual activity with a person fourteen years of age and older but under sixteen years of age. Consequently, all but one of the statutes that this court relied upon in determining that the crime of rape of a child is a strict Hability offense are inapplicable to the present case. In fact, because the Legislature has chosen the age of fourteen as a cutoff for several statutory protections, it is reasonable to conclude that the Legislature considers minors fourteen years or older no longer in need of the same level of protection that the State provides to children under fourteen. This conclusion is bolstered by the fact that the Legislature considers minors fourteen years of age or older to have reached a level of maturity at which they may be held eriminally responsible for their conduct. See Utah Code Ann. § 76-2-801 (1999). Therefore, *123unlike the erime of rape of a child, it is not clear that the Legislature intended the crime of unlawful sexual activity with a minor to be a strict liability offense.5
135 The third factor, the severity of the punishment, is perhaps the most compelling factor used by courts to determine whether a statute should be interpreted as a strict liability offense. Here the severity of the punishment cuts against the proposition that the Legislature intended that section 76-5-401 describe a strict Hability offense because the crime of unlawful sexual activity with a minor involves harsh penalties. If the penalty for an offense is great, it is less likely that the Legislature intended to create a strict Hability offense. See People v. Casey, 41 Cal.App.Ath Supp. 1, 6-7, 49 Cal.Rptr2d 372 (Cal.App. Dep't Super.Ct.1995) ("[If the penalties prescribed are felony penalties, then it is more likely that criminal intent is an essential element of the offense."); State v. Eastman, 81 Hawaii 131, 913 P.2d 57, 66 (1996) (" '[Albsolute or strict liability in the penal law is indefensible in principle if conviction results in the possibility of imprisonment and condemnation.'") (citation omitted); People v. Avery, 277 Ill.App.3d 824, 214 Ill.Dec. 507, 661 N.E.2d 361, 365 (1995) (" '[Whhere the punishment is great, it is less likely that the Legislature intended to create an absolute liability offense.' ") (citation omitted). See also 21 Am.Jur.2d Criminal Law § 148 (1999). In addition, the Model Penal Code, drafted by the American Law Institute, mandates that strict liability should not apply to crimes in which a prison sentence may be imposed. See Model Penal Code § 2.05 (1985). Specifically, the commentary to section 2.05 states:
This section makes a frontal attack on absolute or strict liability in the penal law, whenever the offense carries the possibility of criminal conviction, for which a sentence of probation or imprisonment may be imposed.... The liabilities involved are indefensible, unless reduced to terms that insulate conviction from the type of moral condemnation that is and ought to be implicit when a sentence of probation or imprisonment may be imposed.
Id. erat. 1.
T36 The severity of the punishment for violating section 76-5-401 strongly weighs against finding that it is a strict liability offense. Unless the defendant can put on evidence mitigating the level of offense, the violation of this statute is a third degree felony that carries severe direct and collateral consequences. A person who has been convicted of unlawful sexual activity with a minor may be sentenced to imprisonment for up to five years in the Utah State Prison. See Utah Code Ann. § 76-3-208(8) (1999). In addition to becoming a convicted felon, with attendant disenfranchisement,6 and condemnation from family, friends, and society as a whole, a convicted defendant would also be required to register with the Department of Corrections as a sexual offender. See Utah Code Ann. § 77-27-21.5(8) (1999). This registration must be renewed annually for ten years and would presumably prevent the defendant from obtaining employment in a wide variety of fields, thereby limiting any rehabilitative efforts. See id. Due to the high level of punishment associated with the crime of unlawful sexual activity with a minor, I eannot find a clear legislative purpose to impose strict liability.
T37 The fourth factor, whether unlawful sexual activity with a minor creates serious harm to the public, is contextual and does not necessarily indicate a legislative intent to impose strict liability. This is not to say that unlawful sexual activity with a minor may not be seriously harmful in certain cases. On the contrary, I consider the crime to be of such a nature that while it could be seriously harmful to a minor or the public in one case, it may be far less harmful in another case. Due to the factually intensive inquiries that need to be conducted in determining the culpability of a defendant accused of unlawful sexual activity with a minor, I do not find that the crime is one that is so absolutely *124harmful that the Legislature meant to impose liability without regard to fault.
88 The fifth factor courts look at in determining whether the Legislature intended to create a strict liability offense is the defendant's opportunity to ascertain the true facts. "The harder to find out the truth, the more likely the legislature meant to require fault in not knowing; the easier to ascertain the truth, the more likely failure to know is no excuse." 1 Wayne R. LaFave & Austin W. Seott, Substantive Criminal Law § 8.8 (1986). This factor is particularly fact intensive and can involve, among other things, the true age of the minor, his or her appearance, level of maturity, representations made by the minor and the cireumstances surrounding the relationship. These matters can be addressed without regard to a defendant's subjective belief and should be determined by a jury or court as fact finder. Thus, it is unlikely that the Legislature meant section 76-5-401 to describe a strict liability offense because there may be numerous occasions when a reasonable person would be unable to ascertain the minor's true age.
139 The sixth factor in determining whether the Legislature intended section 76-5-401 to be a strict liability offense is the difficulty the prosecution would have in proving the mental state for this type of crime. Although the Legislature, in a separate seetion of the criminal code, declared that the actor's mistaken belief respecting the age of the minor was not a defense to unlawful sexual activity with a minor, I do not agree with the assertion that to require the State to prove a mens rea is to allow the defendant, in rebuttal, to assert a mistake as to age as an affirmative defense.
140 "Every offense not involving strict liability shall require a culpable mental state, and when the definition of the offense does not specify a culpable mental state and the offense does not involve strict lability, intent, knowledge, or recklessness shall suffice to establish eriminal responsibility." _ Utah Code Ann. § 76-2-102 (1999). In most cases like the present case, the Legislature's elimination of the affirmative defense of mistake as to age, see id. § 76-2-304.5 (1999), obviates the mental states of intentionally and knowingly as the basis for eriminal responsibility. Therefore, the State need only show that a defendant acted recklessly. A person acts recklessly or maliciously
when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.
Id. § 76-2-108(8) (1999).
1 41 A prosecution under section 76-5-401, requiring the State to prove that the defendant was criminally reckless as to the minor's age, would not allow the defendant to rebut evidence of recklessness by establishing the defendant's subjective belief as to the minor's age. Specifically, the State could prove that the defendant acted recklessly by introducing evidence regarding the minor's appearance at the time in question, the minor's statements, the setting in which defendant met the minor, and other evidence indicating that defendant was aware of a risk that he or she was involved with a minor under sixteen years of age. Perhaps most importantly, the jury or court as fact finder would have an opportunity to observe the minor. The defendant could then rebut by showing that his disregard of the risk did not constitute a gross deviation from the standard of care that an ordinary person would exercise, without regard to his mistaken belief, but on his or her own actions and whether an ordinary person would have exercised a greater degree of care. Even if the State's evidence otherwise opened up the issue of defendant's subjective belief, he could rebut without any reference thereto by objective evidence relative to the minor's age. Thus, depriving the defendant of the affirmative defense of his mistaken belief as to the minor's age does not convert an offense described in section 76-5-401 to a strict liability offense.
42 The final factor that courts look at in determining whether the Legislature intended to create a strict liability offense is the number of prosecutions expected-the greater the number, the more likely the Legislature *125meant to impose strict liability. Because unlawful sexual activity with a minor is a consensual act7 that presumably cceurs under less than open cireumstances, it is improbable that there will be a high number of prosecutions for this crime. Therefore, it is unlikely that the Legislature intended to make section 76-5401 a strict liability offense as a way of easing the burden created by a very high number of prosecutions.
43 The existence of mens rea is the rule rather than the exception in American criminal jurisprudence, and courts should be extremely cautious when attempting to determine a clear legislative intent to create a strict liability offense, especially where the legislature has not done so. Therefore, in light of the above analyses and because the statute defining the offense does not indicate a clear legislative purpose to impose strict liability, I do not find that the Legislature intended section 76-5-401 to be a strict liability offense. Accordingly, I would reverse the trial court's conclusion that the crime of unlawful sexual activity with a minor is a strict liability offense and I would remand defendant's case so that he could withdraw his conditional guilty plea.
. These amendments focused on the type of prohibited sexual activity and the age difference required for a lower level of offense.
. In fact, in looking at section 76-5-401 in the context of the chapter of the criminal code in which the crime is defined-Chapter 5, Offenses Against the Person-it is clear that almost all of the offenses described therein require some level of criminal intent.
. If a crime is a strict liability offense, the defendant's age is irrelevant because the defendant's culpability is determined by the mere commission of the forbidden act.
. Section 76-2-304.5 eliminates mistake as to the minor's age as a defense to both rape of a child and unlawful sexual activity with a minor.
. _ It appears that strict liability offenses that pass constitutional muster almost invariably involve minors of very tender years suggesting a sort of presumptive level of culpability, i.e., the younger the minor, the less likelihood of a mistake as to age.
. See Utah Const. art. IV, § 6.
. If it were not consensual, the defendant would more appropriately be charged with rape under Utah Code Ann. § 76-5-402 (1999).