§ 33.05 Rape: Mens Rea

§33.05 Rape: Mens Rea¹³²

In rape prosecutions, a defendant intends to have sexual intercourse with the other person; the mens rea issue almost always relates to the individual's state of mind regarding the victim's lack of consent.

Rape is typically denominated as a general-intent offense in non-Model Penal Code jurisdictions.¹³³ As such, to be convicted of rape, a defendant need not possess an intention that the sexual intercourse be nonconsensual.¹³⁴ It is enough that he possessed a morally blameworthy state of mind regarding the female's lack of consent. Therefore, the general rule is that a person is not guilty of rape if he entertained a genuine and reasonable, albeit incorrect, belief that the female voluntarily consented to intercourse with him; he is guilty of rape if he unreasonably, i.e., negligently or recklessly, believed that the victim was consenting.¹³⁵ This rule conforms with ordinary common law mistake-of-fact principles relating to general-intent offenses.¹³⁶

In recent years, a few American jurisdictions have rejected the usual rule and have suggested or held that even a defendant's reasonable mistake of fact regarding the female's lack of consent will not exculpate.¹³⁷ In most forcible rape prosecutions, this minority approach will not have any practical effect on the outcome. After all, a male of normal intelligence who uses or threatens force likely to cause serious bodily injury will almost always know that the female is not consenting—there is no mistake—so his culpability is obvious. Furthermore, if the female resists her assailant, her lack of consent is even more clearly demonstrated. But, today, rape prosecutions are sometimes initiated in cases in which grave force and resistance were absent. Indeed, in some jurisdictions, the only force required to convict is the force inherent in the act of penetration itself.¹³⁸ In such circumstances, the defendant's mens rea becomes a critical issue. If a male may be convicted despite his genuine and reasonable belief that the female consented, then such jurisdictions have converted rape, a felony carrying severe penalties up to life imprisonment, into a strict liability offense.¹³⁹

Even in states that permit a reasonable-mistake-of-fact "defense," some courts are increasingly hesitant to authorize jury instructions in this regard. The California Supreme Court, for example, has ruled that a "reasonable mistake" instruction should not be given in a criminal case unless there is "substantial...