Commonwealth v. Lopez

The Facts

Defendant accused of rape of a 17 year old girl.  While walking victim encountered defendant, who introduced himself.  Defendant walked victim to her mother and introduced him as her friend.  They went to a restaurant and the defendant then walked the victim home with her consent. When close to home, to avoid being discovered and violating house rules victim and defendant walked away to nearby woods.  When victim stated she wanted to go home, defendant told her to trust him and that he would  not harm her.  Defendant started kissing/touching and victim resisted and said no repeatedly.    Still saying no, defendant raped the victim.  A few minutes later victim made “a jerking move to her left” which angered defendant and he raped her again.  The treating doctor said there was “excessive force and trauma to the vaginal area” with swelling and tearing, stating that such trauma was “rare.”

Defendant’s version of events is very different.  He stated that she was willing and active and that she initiated.  Defense counsel requested a mistake of fact instruction regarding consent to the jury.

Procedural History

Trial judge refuses mistake of fact instruction.  “because the defendant’s theory at trial was that the victim actually consented and not that the defendant was ‘confused, misled, or mistaken’ as to the victim’s willingness to engage in sexual intercourse.”  The judge stated that the jury should simply decide whose version of events was correct.  Defendant appealed.

The Issue

Whether given the relevant facts, a jury should be instructed that the prosecution must prove beyond a reasonable doubt that defendant was not motivated by a reasonable and honest belief that the victim consented to sexual intercourse.

The Holding/Reasoning

No.  Guilt requires a showing that the conduct was undertaken with mens rea (the mental state prescribed for the offense).  “Although the commonwealth must prove lack of consent, the “elements necessary for rape do not require that the defendant intend the intercourse to be without consent.”  To include as an element that the defendant know of the victim’s lack of consent is not a necessary element for conviction.  The relevant inquiry is whether the victim did or did not in fact consent to the rape, not whether the perpetrator knew of the victim’s consent.


Most states would not agree with this ruling.  The majority require a mistake of fact instruction.  Mistake of fact as to the victim’s consent is a valid defense in most states, so long as it is reasonably arrived at.

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