§ 12.03 COMMON LAW RULES

• Jurisdiction: North Carolina

§ 12.03. Common Law Rules

[A] General Approach

The common law rules pertaining to mistakes of fact, although complicated, are understandable if the reader reconsiders the historical context in which the rules devel-oped.¹¹ Originally, the definitions of most common law crimes omitted any mention of a mental-state requirement: A person was guilty if he committed the actus reus under circumstances manifesting his moral culpability. A few crimes, however, included a specific mental-state element in their definitions (typically, "intent" or "knowledge"). The latter offenses came to be known as "specific intent" crimes.

From these two types of crimes and two types of "mens rea"—the "culpability" and "elemental" meanings of mens rea — came a dual approach to mistakes of fact. With specific-intent crimes,¹² common law jurists developed the rule that a mistake of fact is exculpatory if it negates the particular element of mens rea—the "specific intent"—in the definition of the offense. In other words, with specific-intent crimes, the common law adopted an elemental approach to mistakes. However, with general-intent offenses— crimes that do not include a specific-intent element—the jurists sought to determine if the actor's mistake negated his moral culpability for the crime. This is the culpability approach to mistakes.

This dual system, as sensible as it might have been centuries ago, is unjustifiable today in light of the fact that, strict-liability offenses aside, modern penal codes typically include a mens rea element in the definition of all felonies and serious misdemeanors. Logically, therefore, the elemental approach should be followed with all non-strict-liability crimes today. Although the trend is definitely in this direction, largely as the result of the promulgation of the Model Penal Code,¹³ the common law's two approaches to mistakes—depending on whether the offense charged is characterized as general-intent or specific-intent—has largely endured.

As a consequence, the first step in analyzing a mistake-of-fact claim in a jurisdiction that follows common law doctrine is to identify the nature of the crime for which the defendant is being prosecuted: That is, is it a strict-liability, specific-intent, or general-intent, crime? The separate rules for each type of offense are described below.

[B] Strict-Liability Offenses

The mistake-of-fact rule for strict-liability crimes is straightforward: Under no circumstances does a person's mistake of fact negate his criminal responsibility for violating a strict-liability offense.

This rule is sensible. By definition, a strict-liability offense is one that does not require proof of any mens rea. Inasmuch as the basis for exculpation on the ground of mistake is that it negates the actor's "mens rea," the absence of any mens rea to negate necessarily precludes the use of this defense. Thus, if D drives above the lawful speed limit because his speedometer is inaccurate, he will be convicted of a strict-liability speeding offense, even if the speedometer's faulty calibration was unknown and unforeseeable to him.

Similarly, statutory rape is a strict-liability offense in most states regarding the attendant circumstance of the female's age. Thus, D's erroneous belief, no matter how reasonable, that the female with whom he is having intercourse is old enough to consent, will not exculpate him.¹⁴ Any unfairness in this outcome is a function of the strict-liability nature of the offense, and not of the mistake-of-fact rule pertaining to such offenses.

[C] Specific-Intent Offenses

Consider the following two examples of mistake-of-fact claims in the prosecution of specific-intent offenses. First, D1 takes V1's property, incorrectly believing that the property has been abandoned and, therefore, does not belong to anyone. D1 is charged with larceny, a specific-intent offense defined at common law as the "trespassory taking and carrying away of the personal property of another with intent to permanently deprive the other of the property (or, in shorthand, with the intent to steal)."¹⁵

In the second case, soldier D2 attempts to have sexual intercourse in Japan with V2. Because of a language barrier, D2 incorrectly believes that V2 was a consenting prostitute. D2 is arrested before the intercourse occurs, so he is charged with the specific-intent crime of assault with the intent to commit rape.¹⁶

In each case, the defendant's mistake relates to the specific-intent portion of the applicable offense. D1's mistaken belief that the property has been abandoned and, therefore, does not belong to anyone, is relevant in determining whether he had the specific intent to steal from V1. D2's mistaken belief that V2 has consented to intercourse is pertinent in determining whether he "intended to rape" V2, the specific intent in the prosecuted offense.

The rule of law here is simple: A defendant is not guilty of an offense if his mistake of fact negates the specific-intent portion of the crime, i.e., if he lacks the intent required in the definition of the offense. Thus, if D1 genuinely believed that the property he took and carried away had been abandoned, then D1 did not intend to permanently deprive V1 of the property; if D2 truly believed that V2 was consenting to intercourse, then D2 did not intend to rape V2.¹⁷ It does not matter in these cases that the defendants' mistakes may have been unreasonable—that the defendants may have been reckless or negligent in their respective beliefs. Acquittal follows inextricably from the fact that a person may not be convicted of an offense unless every element thereof, including the mental-state element (the intent to steal and rape, respectively), is proved, which did not occur here assuming the defendants were genuinely mistaken.

On the other hand, suppose that D3 obtains heroin from X, believing that the substance is cocaine, and is prosecuted for "knowingly receiving a controlled substance," a specific-intent offense.¹⁸ In this case, D3 may properly be convicted, notwithstanding his mistake, because his error, whether reasonable or unreasonable, does not negate the requisite specific intent. D3 knew that he was receiving a controlled substance; he was only mistaken regarding its nature (heroin versus cocaine).

[D] General-Intent Offenses

[1] Ordinary Approach: Was the Mistake Reasonable?

The ordinary rule is that a person is not guilty of a general-intent crime if his mistake of fact was reasonable, but he is guilty if his mistake was unreasonable.¹⁹ For example, suppose that D has nonconsensual sexual intercourse with V, whom he incorrectly believes is consenting. D is charged with rape, defined for current purposes as "sexual intercourse by a male with a female, not his wife, without her consent." Inasmuch as rape is a general-intent offense, courts utilize the culpability approach to analyze D's mistake of fact. If his mistake regarding V's "consent" was reasonable, then he is not guilty of the offense.²⁰ This follows because, although the actus reus of the offense has occurred, D's state of mind regarding the prohibited conduct was nonculpable, i.e., his belief that she was consenting was one that a reasonable person might have harbored. If D's belief as to V's consent was unreasonable, however, then he has acted with a culpable state of mind that justifies his conviction of the offense.²¹

The mistake-of-fact rule is not without critics.²² The practical effect of denying exculpation to those who act on the basis of an unreasonable mistake of fact is to permit punishment on the basis of mere negligence. Punishment for...