Commonwealth v. Fischer

The Facts

Defendant charged with involuntary sexual intercourse, aggravated indecent assault, and other sexual offenses.  Defendant and victim went to defendant’s dorm in their first encounter.  Victim testified they just kissed and touched while defendant claimed they had rough sex, mostly initiated by the victim.  Later that day they met again the defendant’s dorm room.  Victim testified the defendant locked the door and forced oral sex and vaginal sex.  Defendant states that on the second encounter the victim led him to the room, telling him “it would have to be a quick one.”  They started to have sex consensually and when the victim said she no longer wanted to he stopped immediately, but continued to kiss and fondle each other, according to the defendant’s version of event.

Procedural History

Convicted at trial on all counts.  Defendant appeals, stating the jurors should have been given a mistake of fact instruction.

Mistake of fact instruction:  “… if the defendant reasonably believed that the victim had consented to his sexual advances that this would constitute a defense to the rape and involuntary deviate sexual intercourse charge.”

Relevant  Statute

Forcible Compulsion:  “Compulsion by use of physical, intellectual, moral, emotional or psychological force, either express or implied.  The term includes, but is not limited to, compulsion resulting in another person’s death, whether the death occurred before, during or after sexual intercourse.”


Whether the defendant’s reasonable belief that the victim consented is an essential element of the crime of rape, such that a jury should receive it instructions.


No, appeal denied. The relevant statute is newly revised and does connect an element of mens rea to the act of rape.  However, it connects mens rea with the compulsion of non-physical force.  It does not establish the mistake of fact instruction as exculpatory to rape in these particular facts.  Precedent holds that such similar facts are controlling.  Because strict interpretation of the statute does not explicitly stretch the interpretation of the statute to include mistake of fact, especially when controlling case law (Williams) with nearly identical facts exists, the court cannot overturn conviction.

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