A big mistake: eroding the defense of mistake of fact about consent in rape.

• Author: Cavallaro, Rosanna

Thirty years ago, for the first time, the defense of mistake of fact(1) emerged as a defense to a charge of rape.(2) Thirty years later, the availability of that defense has been suddenly and substantially eroded. By allowing the defense only where the evidence of consent is "equivocal," courts are establishing a standard for an instruction on mistake that has been applied in no other context in which the mistake defense arises.(3) This new rule of equivocality imposes limits on the role of the jury that are unique to rape, adding the defense of mistake of fact to a growing array of procedural and substantive rules of law that have singular application to that offense.

This Article examines the development of mistake of fact as a defense to rape from its adoption in 1964 to its virtual demise in the last year. I argue that the emergence of a rule of equivocality culminates from a growing judicial discomfort with the implications of an expansive defense of mistake to a charge of rape. First, I consider the adoption of the rule of equivocality, examining its flaws both on its own terms and by considering application of that rule in other areas of a criminal law, particularly self-defense. Next I consider the impact of rule of equivocality on certain aspects of the role of the jury, concluding that the rule has the effect of transforming the jury function in fundamental ways. Then I consider the relationship of the rule of equivocality to rules that once governed rape prosecutions, in particular the requirement that the complainant's testimony be corroborated, rated, and the admissibility of evidence regarding a complainant, prior sexual conduct. I argue that the rule of equivocality is a revival albeit inverted, of legal rules that were largely repudiated by the rape reform legislation of the last twenty years, and that the discourse surrounding these decisions is a parallel inversion of the now repudiated discourse about women's sexuality that had accompanied those rules. Finally, I contend that to the extent criminal law should be concerned with improving communication about sexual behavior and consent, the requirement that a belief as to consent be reasonable adequately protects that interest without the costs imposed by a rule of equivocality.

Although this Article treats certain California decisions as critical references, the problem posed by the erosion of the defense of mistake take is far broader. California was the first state in the country to recognize that a defendant who honestly and reasonably mistakes the age of a sexual partner may seek an acquittal on a charge of statutory rape on that ground. Other states promptly adopted that reasoning.(4) Similarly, when California expanded the rule to permit the defense of mistake take of fact as to actual consent where the victim is of the age to give consent,(5) other states again followed suit.(6) This Article considers the rule of equivocality announced in California as one that, like the rules regarding mistake, is more than likely to have a similar influence nationwide.(7) It is for this reason that I discuss in detail the developments in California regarding mistake in rape law.

2. Background. The Development of the Defense

   1. MISTAKE OF FACT, A SUMMARY OF THE DEFENSE

      Criminal offenses, at least those traditional offenses which carry with them serious sanctions such as imprisonment and its accompanying social stigma, are defined not only by conduct but also by a mental element,(8) variously embraced by the terms "fault,"(9) "mens rea," "culpability,"(10) "blameworthiness,"(11) or "intent," that must accompany the forbidden conduct. Where an offense requires a particular mental state, such as knowledge or purpose, an honest and reasonable belief that precludes a defendant from forming or maintaining that mental state will preclude conviction. Similarly, where knowledge of the existence of a certain fact is an essential element of an offense, a mistaken taken belief about that fact which, if true, would make the conduct innocent, also precludes criminal liability.(12)

      Since a mistake of fact operates to negate the mental element of a charged offense, it is not so much a defense as a means of demonstrating the failure of the prosecution's proof of that essential element.(13) The defense of mistake of fact, it has been observed, is to that extent superfluous, since it merely restates the axiom that the prosecution must prove every element of an offense.(14) Nevertheless, a mistaken belief by an actor that precludes the required mental state which would make the conduct criminal has most often been treated as giving rise to a defense, with the initial burden of raising a reasonable doubt placed upon the defendant, and the prosecution required to disprove the defense beyond a reasonable doubt.(15)

      Mistake of fact is available as a defense to a particular charge only where the definition of the offense makes a defendant's mental state as to a particular element material.(16) For rape, generally defined as sexual intercourse accomplished by force and without consent,(17) an actor must have a level of intent that is at least reckless and, more often, either purposeful or knowing. While states uniformly require that this mental state accompany the sexual conduct itself and the force, there is no similar consensus as to whether it must also accompany the element of non-consent. Some states require that a defendant be aware that a complainant does not consent in order to be guilty of rape,(18) while in other states the offense is complete if the complainant ant does not consent and the defendant knows only that he(19) is engaging in the sexual conduct through force.(20) Still other states have simply not resolved the question. This ambiguity gives rise to much of the conflicting decisional law attempting to apply mistake of fact to rape, for if a defendant need not be aware of a complainant's non-consent, then a mistaken belief that she is consenting will not relieve him of criminal culpability. Logically, a definition of the requisite mens rea, if any, as to non-consent in rape should precede any determination of the availability of mistake of fact as a defense. However, the history of the defense is that courts have not always applied this logical sequence.

   2. PEOPLE V. HERNANDEZ AND THE ROOTS OF MISTAKE IN RAPE

      Mistake of fact as a defense to a charge of rape has its origins not in adult rape, but rather in the derivative context of statutory rape. Curiously, the first approach to a mistake of fact defense to rape occurred n a California case where the defendant was mistaken not as to the complainant's actual consent, but as to her age. This development is noteworthy since nationally there had been a long and unbroken tradition of strict liability as to sexual conduct with minors.(21)

      In People v. Hernandez, the California Supreme Court reversed its prior rule of strict liability and required the trial court to admit defense evidence tending to show that the defendant had a good faith, reasonable belief that the complainant was over eighteen years old.(22) Essential to the court's decision was the proposition that in statutory rape the age of the complainant serves as a proxy for the element of consent; this proposition is based on the theory that a minor is legally incapable of giving valid consent.(23) As the court explained:

      We are dealing here, of course, with statutory rape where, in one sense, the lack of consent of the female is not an element of the offense. In a broader sense, however, the lack of consent is deemed to remain an element but the law makes a conclusive presumption of the lack thereof because she is presumed too innocent and naive to understand the implications and nature of her act.(24)

      The court then considered the significance of a defendant's good faith, reasonable belief that the complainant was over the age of consent. sent. Relying on section 20 of the California Penal Code(25) the court recited the fundamental principle of criminal law "that it is not conduct alone, but conduct accompanied by certain specific mental states which concerns, or should concern, the law."(26) After considering the application of this principle in a 1956 decision in which a defendant's good faith, reasonable, but mistaken, belief that a first marriage had been terminated by divorce was held to be a valid defense to a charge of bigamy arising out of defendant,s second marriage,(27) the court concluded, "[c]ertainly it cannot be a greater wrong to entertain a bona fide but erroneous belief that a valid consent to an act of sexual intercourse course has been obtained."(28) On this basis, the court found that a good faith, reasonable belief that the victim was indeed over the age of consent was a valid defense to what previously had been a crime of strict liability.(29)

      The novelty of the Hernandez decision lies in its smooth elision of the correlation between age and actual consent, and in its automatic and unreflective application of principles of mens rea to an element - age - that might as easily have been treated as one requiring no proof of intent.(30) The court assumed, without discussion, that whatever might be said about an adult complainant's consent would be equally true of a minor complainant's age. Although the Hernandez court did hold that the complainant's age created a conclusive presumption about her actual consent, and the statute at the time did offer age and force as alternative circumstances creating liability for sexual intercourse,(31) neither circumstance compels the conclusion that these elements are equivalent with respect to the requisite intent. Yet the decision relies upon this equivalency, reasoning from bigamy to "valid consent to an act of sexual intercourse," and from there to statutory rape, without confronting the relationship between age and consent on the one hand, and intent on the other.

      Still stranger...