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Date Rape and the Defense of 'Mistake of Fact'

I have dealt with many sexual assault cases in the past where there is a genuine mistake of the fact as to whether or not the victim has consented to the particular circumstances that lead to the sexual behavior. For instance, sometimes a victim has expressed a prior desire to engage in sexual behavior with the defendant. Or, the defendant makes sexual advances that are not instantly rebuked by the victim. There is no overt threat of force, no resistance, no “NO!” We’ve always have been taught that “no means ‘no’.” But, how do we truly know the mind of another if it’s not spoken? How is one to read the mind of another?

A “mistake of fact” jury instruction is one where the judge provides the jury with guidance that the circumstances and the defendant’s testimony can negate the element of the crime relating to intent.

Mistake of fact warranted as to victim’s behavior

For instance, where victim testified that she had been affectionate with defendant and the defendant then testifies that it seemed to him that victim was enjoying their foreplay and their sexual activity was mutual, a mistake of fact instruction could be warranted.

Mistake of fact warranted as to defendant’s state of mind

“It is well established that a bona fide, reasonable mistake of fact may, under certain circumstances, negate the element of criminal intent.” Commonwealth v. Namack, 663 A.2d 191, 194 (Pa.Super.1995). This legal maxim is codified at Section 304 of the Crimes Code, which provides, in relevant part, “[i]gnorance or mistake as to a matter of fact, for which there is reasonable explanation or excuse, is a defense if ... the ignorance or mistake negatives the intent, knowledge, belief, recklessness, or negligence required to establish a material element of the offense[.]” 18 Pa.C.S. § 304(1). See Pa. SSJI (Crim) 8.304.

There may be many instances where the defense can properly cross the victim as to the activities involved in the sexual engagement with the defendant to show that there may have been an honest mistake. Further, the defendant should, in many circumstances, have to testify as to his/her belief that the actions involved in the activity were consensual or that the defendant reasonably believed that they were.

If you’ve been charged with a sexual assault crime, you need to consider a proper defense. Contact Shaffer & Engle to discuss your case at a free consultation. You may also contact us for our free reference guide–Defending Sexual Offenses.

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