Massachusetts Law Review

Criminal Law: Jury Instructions - Mistake of Fact in Rape Cases

Commonwealth v. Lopez, 433 Mass. 722 (2001).The Supreme Judicial Court in a carefully hedged decision has held that a defendant charged with rape is not entitled to a mistake of fact instruction.1 It is sufficient to instruct the jury that it must find that the alleged assault took place "against the will" of the complainant.2 This places Massachusetts squarely among the minority of states that do not recognize a mistake of fact defense to rape.3 A major effect of this opinion is to create a necessity for defense counsel to seek a strong jury instruction on the element of force in rape.

The opinion in Commonwealth v. Lopez involved an accusation by a 17-year-old girl that the defendant had enticed her into a park where, after she rejected his sexual innuendos, he raped her.4 The defendant's testimony was "diametrically opposed."5 Although the details of the evidence are not relevant to this comment, there could be little question that the complainant's testimony, if accepted, made out a forcible rape beyond a reasonable doubt. On the other hand, the defendant's evidence described a consensual encounter initiated by the complainant.
Against this background, the defendant requested that the following mistake of fact instruction be given to the jury:
If the commonwealth has not proved beyond a reasonable doubt that the defendant was not motivated by a reasonable and honest belief that the complaining witness consented to sexual intercourse, you must find the defendant not guilty.6 Despite the fact that the court readily agreed that "[a] principal tenet of criminal law is that culpability requires a showing that the prohibited conduct (actus reus) was committed with the concomitant mental state (mens rea),"7 it found that a defendant's mistaken belief that his partner had consented to sexual intercourse has "very little application" to rape as defined in this commonwealth.8 The court's conclusion that mistake of fact is not a defense to rape and that a defendant's innocent state of mind is largely irrelevant was based on statutory interpretation. The rape statute, G.L. c.265, ?22,which essentially codifies the common law, requires proof that a "defendant committed (1) sexual intercourse (2) by force or threat and against the will of the victim."9 It is the second element which was at issue in the Lopez case. The court held that the second element of the crime "by force and against [the victim's] will" "essentially encompassed" two separate elements each of which must be independently satisfied.10 Because (1) the fact of force and (2) the fact that the intercourse was accomplished against the will of the victim are elements to be independently proven, according to the court's rationale, the belief of the defendant that the intercourse was consensual is irrelevant.
On first glance, this analysis appears to be entirely at odds with the constitutional requirement that a person who acts without evil intent cannot be convicted of a serious crime.11 One might also fairly question whether the court was deferring to the credibility granted alleged victims of sexual assault in the popular press.
On deeper analysis, however, the Lopez decision, if followed carefully, should prevent unfair conviction of a defendant falsely accused of a sexual assault by complainant who has feigned consent. A more troublesome scenario would occur where a complainant, fearing that withholding consent might result in violence, submits without protest "against [his or her] will" to intercourse with a partner, thus deceiving the partner into believing that the intercourse was truly consensual. Under these circumstances, it would appear that proof of a greater degree of actual force than has been required in the past should be necessary to protect against conviction of the innocent.
To prove rape, the commonwealth must establish that "the defendant committed sexual intercourse (1) by means of physical force ...; nonphysical, constructive force ...; or threats of bodily harm, either explicit or implicit ...; and (2) at the time of penetration, there was no consent."12 Neither proof that (1) the defendant intended the intercourse be without consent nor (2) that he had actual knowledge of the complainant's lack of consent is required. The court stated, "[N]o mens rea or knowledge as to lack of consent has ever been required."13 Does the court's reasoning transform forcible rape into a strict liability crime? The easy, perhaps facile answer advanced by the court is that rape under both common law and statutory law is a general intent crime as opposed to a crime of specific intent. Therefore, the only proof of intent required is proof "that a defendant intended sexual intercourse by force coupled with proof that the victim did not in fact consent..."14 Is this burden of proof sufficient to protect an innocent defendant who did not intend forced intercourse from conviction? In most cases the answer is probably, "Yes." But there may be some circumstances where meeting this burden will not sufficiently protect the defendant, and where a defendant ought to be entitled to a mistake of fact instruction. Does the court leave room for a mistake of fact defense in certain narrow circumstances requiring further inquiry into the behavior of the defendant and the complainant.
A key factor in this discussion is the definition of force. The court in Lopez makes it clear, although it never says so directly, that the force required must be more than that required to accomplish penetration.15 This physical force may take the form of threat of force or constructive force.16 The court cites Susan Estrich for the proposition that the requirement of proving force "'provides [a defendant] with some protection against mistakes as to consent.'"17 The court expressed a concern that "a mistake of fact defense would eviscerate the long-standing rule in [Massachusetts] that victims need not use any force to resist an attack."18 It concluded that such a defense "is incompatible with the evolution of our jurisprudence with respect to the crime of rape."19 Yet, it is hard to see how a requirement that putative victims communicate their lack of consent to an unwelcome sexual advance would undermine the law against rape.20
The Massachusetts law with respect to rape is easily distinguished from those states which require proof of the defendant's state of mind in a rape case. In other jurisdictions, the defendant, by claiming consent, places his state of mind in issue. In California, a defendant is entitled to a mistake of fact instruction only when "'the complainant's conduct [is] admittedly equivocal as to consent," a circumstance virtually eliminating the defense because this "'essentially concedes that point and is doomed to almost certain conviction.'"21
In cases in which the evidence is characterized by a conflict in credibility between the defendant and the complainant, the ability to present a mistake of fact defense may be less crucial to the defendant. Where the complainant testifies to a forced penetration and lack of consent, and the defendant to belief of consent and lack of force, the case may boil down to a traditional clash of credibility in which the jury must decide if it accepts the complainant's testimony beyond a reasonable doubt.
Where the evidence of consent is equivocal and the complainant's testimony leaves open the possibility that a reasonable person could have mistaken the complainant's conduct for consent, that the mistake of fact instruction may give crucial guidance to a jury. As the defendant wrote in his brief to the Supreme Judicial Court:
The defense of reasonable belief in consent permits the jury to conclude that both the complainant and the accused are telling the truth. The jury will first consider the complainant's state of mind and decide whether she consented to the alleged acts. If she did not consent the jury will view the events from the defendant's perspective to determine whether the manner in which the complainant expressed her lack of consent was so equivocal as to reasonably lead the accused to assume that the she did consent, though in fact she did not.[22]
A jury would be unlikely to sympathize with the defendant who testified that he understood a victim's hesitancy as consent. The mistake of fact defense would obtain either 1) when traditional issues of credibility exist or 2) where the jury accepts the complainant's testimony regarding her conduct as true but finds the conduct "so equivocal as to reasonably lead the accused to assume [consent]."23 The court traditionally viewed the jury as well-equipped to determine the veracity of witnesses and to evaluate testimony.
The court's rejection of the mistake of fact defense advocated by the defendant creates a rule unique to crimes involving sexual assault. By creating such an exception to the requirement in the criminal law of proof of mens rea, the court espouses a rule which unnecessarily demeans both the role of the jury and the character of the rape victim. The rape victim is viewed as a witness, who is somehow less competent than other crime victims, and more needy of the court's protection. Admittedly, this patriarchal view may be less offensive than the treatment of rape victims, prior to the Rape Shield Act,24 where defense counsel could question a complainant's character, insinuate the complainant was promiscuous and contend the complainant invited, even welcomed, the assault. The approach that denies a mistake of fact defense to a defendant in a rape case effectively treats the alleged victim as if he or she were in a special category.25 There appears to be no logical reason, and the court has not adequately explained, why a jury cannot sort out the conflicting testimony of the principals in a rape case in the same manner as it resolves the conflicting testimony of the principals in, for example, a larceny case in which the defendant testifies that he believed he owned the property at issue, or an assault case, in which the defendant testifies he reasonably feared for his life or his safety.
One might ask if the court has established a rule of law that perpetuates the myth that victims of sexual assaults, most of them women, are persons less able to speak for themselves. Are the victims members of the "fair sex," more in need of the protection of the law than victims of other crimes, no matter how violent? The definition of rape as a general intent crime fails to explain adequately why a person accused of a sexual assault, who acts under a reasonable belief that his or her partner is consenting to the intercourse, should not be entitled to an acquittal.
A mistake of fact defense would not demean the rape victim or increase the risk of the harm done by a sexual assault. The denial of a mistake of fact defense in rape is a rule of law that does nothing to protect a person from being victimized because the defense only benefits the accused who honestly and reasonably believes that his or her partner consented to the intercourse. Moreover, it aids the defendant in the admittedly rare case in which the so-called victim either "sets up" the accused by purposely acquiescing in a sexual act without giving his or her partner notice of lack of consent or in which the acquiescing individual decides, after the fact, that he or she had not really consented.
The denial of a mistake of fact defense is most threatening in cases of unnatural intercourse in which the degree of force necessary to accomplish penetration may be less than with "natural intercourse," or in cases in which both parties to the act participate in "kinky" sex.26 The Lopez decision makes it extremely important that counsel, representing an accused who defends himself against a rape case on the basis of consent, make the Commonwealth bear its burden of proof beyond a reasonable doubt on the element of force. A strong instruction that the degree of force necessary to accomplish penetration must be greater than that required to achieve penetration in consensual sex will be absolutely necessary.27 The Lopez court recognized that the issue is a difficult one and left open the possibility of revisiting the question "on a future case where a defendant's claim if reasonable mistake of fact is at least arguably supported by the evidence."28 Defense counsel should continue to request a mistake of fact instruction in appropriate cases. Although, it may only affect a small percentage of defendants accused of rape, Lopez espouses a rule that may result in the conviction and imprisonment of the truly innocent.

Patricia A. O'Neill 1. Commonwealth v. Lopez, 433 Mass. 722, 724-25 (2001).[back] 2. Id. at 726.[back] 3. Id. at 729-30.[back] 4. Id. at 722-24.[back] 5. Id. at 724.[back] 6. Id. at 724 & n. 1.[back] 7. Id. at 725, citing Morissette v. United States, 342 U.S. 246, 250 (l952).[back] 8. Id. at 727.[back] 9. Id. at 726.[back] 10. Id. at 727.[back] 11. See supra note 7[back] 12. Lopez, 433 Mass. at 727 (internal citations and parentheticals omitted).[back] 13. Id.[back] 14. Id. at 728.[back] 15. An exception to this rule is made where the victim is incapable of consent due to intoxication or other impairment. See id. at 728-29.[back] 16. Id. at 728-29.[back] 17. Id. at 729, quoting Susan Estrich, Rape, 95 Yale L.J. 1087, 1098-99 (1986).[back] 18 Id. at 729.[back] 19. Id. The fact is that the law has evolved in such a way as to give alleged victims of rape an elevated status as compared to victims of other crimes. See Mass. Gen. Laws ch. 233, ?21B (Rape Shield Act). Although the motivation for the added protections given to victims of sexual assault is protection against harassment and the innuendo that the victim is somehow at fault, it does not follow that adult victims of sexual assault are less able to withstand the rigors of cross-examination than any other competent witness.[back] 20. See id. at 729.[back] 21. Id. at 731 n.5, quoting Rosanna Cavallaro, A Big Mistake: Eroding the Defense of Mistake of Fact about Consent in Rape, 86 J. Crim. L. & Criminology 815, 838-39 (1996).[back] 22. Defendant's brief, filed with the Supreme Judicial Court, at 21-22.[back] 23. See supra note 21.[back] 24. Mass. Gen. Laws ch. 233, ?21B[back] 25. It is tempting but would be inaccurate to analogize this treatment of sexual assault victims to the somewhat generous approach that may be taken to witnesses who are very young or who may have other disabilities that make testifying difficult. See, e.g., Commonwealth v. Barbosa, 399 Mass. 841, 845-48 nn. 10-11, 13 (1987) (rejecting defendant's argument that victim's limited language skills impaired right of confrontation). [back] 26. In this situation, it is possible that one or both parties to the act could be guilty of battery, although not of a sexual assault. See Commonwealth v. Appleby, 380 Mass. 296, 310-11 (1980).[back] 27. A suggested instruction might be: The commonwealth must prove beyond a reasonable doubt that the degree of force used was greater than that necessary to effect intercourse. See Commonwealth v. Helfant, 398 Mass. 214, 221 (1986). Massachusetts case law in the area of rape appears to define "force" only in the negative. Victims of rape are not required to use physical force to resist rape. Commonwealth v. Caracciola, 409 Mass 648, 651 (1991). Threat of force will suffice, or in the case where the "victim was 'wholly insensible so as to be incapable of consenting,'" "only 'such force as was necessary to accomplish the purpose'" will suffice. Id., quoting Commonwealth v. Burke, 105 Mass. 376, 380-81 (1870). Otherwise, "an examination of the circumstances or fear in which the victim is placed, the impact of those circumstances or fear on the victim's power to resist and the defendant's conduct all are relevant to the determination of whether conduct complained of by the victim was accomplished by force and against the victim's will." Caracciola, 409 Mass. at 651.[back] 28. Lopez, 433 Mass. at 732.[back]

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