“Mistake of Fact” or Law as Legal Defenses to a Crime

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Degrees of Mistake or Ignorance of Fact.

‘An honest (subjective) mistake of fact or ignorance is generally a defense to crimes requiring premeditation, specific intent, knowledge, or willfulness. For example, an accused’s honest belief that he had permission to take certain property would excuse the crime of theft or wrongful appropriation. RCM 916(j).

In the case of the United States v. Hill, 32 C.M.R. 158 (CMA 1962) (honest belief owner permitted to use a car a good defense to wrongful appropriation); see also In the case of the United States v. Jett, 14 MJ 941 (ACMR 1982). Similarly, an honest mistake can be a defense to presenting a false claim, In the case of the United States v. Graves, 23 MJ 374 (CMA 1987); In the case of the United States v. Ward, 16 MJ 341 (CMA 1983), and false official statement. In the case of the United States v. Oglivie, 29 MJ 1069 (ACMR 1990). See generally Benchbook paragraph 5-11-1.

Legal Defenses Available in a Military Court-Martial

In the case of the United States v. Gillenwater, 43 MJ 10 (CAAF 1995) (mistake of fact defense raised in prosecution for a wrongful appropriation of government tools where accused’s former supervisor testified that he gave accused permission to take things home for government use & accused worked on several government projects at home); In the case of the United States v. Gunter, 42 MJ 292 (CAAF 1995) (discussing possible defenses of self-help and honest claim of right).

Military Sexual Assault Defenses: Mistake of Fact Explained

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In the case of the United States v. McDivitt, 41 MJ 442 (CAAF 1995) (mistake of fact defense is not raised by evidence where accused signed official documents falsely asserting that he had supported dependents for prior two years to obtain higher allowances after being advised by finance clerk that he was entitled to allowances at a higher rate until divorced).

An honest and reasonable (objective) mistake. A defense to general intent crimes— crimes lack an element of premeditation, specific intent, knowledge, or willfulness. RCM 916(j). In the case of the United States v. Brown, 22 MJ 448 (CMA 1986); In the case of the United States v. Carr, 18 MJ 297 (CMA 1984) (rape); In the case of the United States v. Davis, 27 MJ 543 (ACMR 1988) (rape); In the case of the United States v. Graham, 3 MJ 962 (NCMR 1977) (accused’s honest and reasonable mistaken belief he had permission to be gone held a legitimate defense to AWOL); In the case of the United States v. Jenkins, 47 CMR 120 (CMA 1973) (accused’s honest and reasonable belief he had a “permanent profile” held a legitimate defense to disobedience of a general regulation requiring shaving); In the case of the United States v. Oglivie, 29 MJ 1069 (ACMR 1990) (an honest and reasonable mistake is required for a defense to the general intent crime of bigamy).

Honest mistake. Negates an element of premeditation, specific intent, willfulness, or actual knowledge. For example, in the United States v. Binegar case, 55 MJ 1 (CAAF 2001) (larceny).

Certain offenses such as bad checks and dishonorable failure to pay debts require a special degree of prudence. The mistake and ignorance standards must be adjusted accordingly, for example, in UCMJ art. One hundred thirty-four check offenses the accused’s ignorance or mistake to be exonerated must not have resulted from bad faith or gross indifference. In the case of the United States v. Barnard, 32 MJ 530 (AFCMR1990). See generally Benchbook paragraph 5- 11-3.

Some offenses, like carnal knowledge, have strict liability elements. See Milhizer, Mistake of Fact and Carnal Knowledge, ARMY LAW., Oct. 1990, at Deliberate ignorance can create criminal liability. In the case of the United States v. Dougal, 32 MJ 863 (NMCMR 1991).

Result of Mistaken Belief. To be a successful defense, the mistaken belief must be one that would, if true, acquit the accused. For example, in the case of the United States v. Vega, 29 MJ 892 (AFCMR1989) (no defense where the accused believed he possessed marijuana rather than cocaine); In the case of the United States v. Fell, 33 MJ 628 (ACMR 1991) (against a charge of robbery, the accused’s honest belief that the money was his is a legitimate defense to robbery of the money, though not a shield against conviction for assault on the victim); In the case of the United States v. Anderson, 46 CMR 1073 (AFCMR1973) (accused charged with LSD offense has no defense because he believed the substance to be mescaline); In the case of the United States v. Calley, 46 CMR 1131, 1179 (ACMR 1973) (no defense to homicide that accused believed victims were detained PWs rather than noncombatants).

Mistake of Fact and Sex Offenses

Consent and Mistake of Fact as to consent (for offenses involving the new Article 120, effective 1 October 2007). Article 120 provides that consent and mistake of fact as to consent are affirmative defenses for Rape, Aggravated Sexual Assault, Aggravated Sexual Contact, and Abusive Sexual Contact. See UCMJ art. 120(r) & (t)(14). See supra Ch.4, paragraph V .B.8.
Mistake of Fact as to consent (for offenses occurring before 1 October 2007). An honest and reasonable mistake of fact as to consent is a defense in rape cases. For example, in the case of the United States v. Taylor, 26 MJ 127 (CMA 1988) (mistake of fact not available in a conspiracy to commit rape absent evidence that all co-conspirators had a mistaken belief that the victim consented).

Mistake of fact as to victim’s consent to sexual intercourse cannot be predicated upon negligence of accused; mistake must be honest and reasonable to negate a general intent or knowledge. In the case of the United States v. True, 41 MJ 424 (1995).

Mistake of fact as to whether the victim consented to intercourse is a different defense than actual consent by the victim. When the evidence raises only an issue as to actual consent, the military judge has no sua sponte duty to instruct on a mistake. In the case of the United States v. Willis, 41 MJ 435 (1995). Cf. In the case of the United States v. Brown, 43 MJ 187 (1995) (observing “[i]n every case where consent is a defense to a charge of rape, the military judge would be well advised to either give the mistake instruction or discuss on the record with counsel the applicability of the defense”).

Evidence cited by the defense in light of the totality of the circumstances, including the manner that the issue was litigated at trial, was insufficient to reasonably raise the issue of whether the accused had a reasonable belief that the victim consented to sexual intercourse.

Mistake of fact as to consent in a prosecution for rape is not reasonable where the 13-year-old victim is a virgin who was too intoxicated to consent or resist even if she was aware of the intercourse, notwithstanding her response of “yeah” when the accused asked her if she “wanted to do it.”

Victim’s alleged statement that she had told another witness she would not mind having sex with the accused did not establish a mistake of fact where, a few days later, the accused had taken the very intoxicated victim into a bathroom and had sexual intercourse with the victim, who at the time was “too weak to hold [her]self up let alone hold someone else away.”

There could be no honest or reasonable mistake as to consent to intercourse and sodomy where the accused and victim had only slight acquaintance as classmates, no dating relationship. The victim stated she did not want sex and asked the accused to leave her room, accused forced her head to his penis to accomplish fellatio and threatened to kill her if she told anyone about the incident.

The evidence established the affirmative defense of mistake of fact as to consent. The victim’s failure to take action to stop the accused from touching her ribs and across her front after consenting to his giving her a back rub was sufficient to confirm in the mind of a reasonable person that she was consenting to his actions. His departure from the back rub to the front side caress ultimately led to her breasts touching.

In the case of the United States v. Parker, 54 MJ 700 (Army Court Crim. App. 2000), rev’d on other grounds, 59 MJ 195 (CAAF 2003). The government did not disprove the accused’s defense that he mistakenly believed the victim consented to the intercourse and sodomy. The victim admitted that she and the accused engaged in a consensual relationship for several months before the first alleged rape, and she sent mixed signals to the accused about their relationship. The relationship included consensual sexual acts, which were similar to the acts she claimed were nonconsensual.

In the case of the United States v. Black, 42 MJ 505 (Army Court Crim. App. 1995) (evidence that victim of sex offenses may have engaged in oral sex with another individual before the assault by the accused was not relevant to show that accused was mistaken as to the consent of the victim to engage in such acts with accused). Cf. In the case of the United States v. Greaves, 40 MJ 432 (CMA 1994)(excluding evidence of accused’s projected beliefs of victim’s sexual relations with others); In the case of the United States v. Traylor, 40 MJ 248 (CMA 1994) (holding mistake of fact as to consent to intercourse not reasonable when based upon belief by accused that victim “would consent to intercourse with anyone”).

In the case of the United States v. Peterson, 47 MJ 231 (CAAF 1997) (holding consent element is a general intent element, even though indecent assault requires specific intent to gratify lust); In the case of the United States v. Johnson, 25 MJ 691 (ACMR 1987).

Even though indecent assault is a specific intent crime, a mistake of fact as to the victim’s consent must be both honest and reasonable as the defense goes to the victim’s intent and not the accused’s intent. In the case of the United States v. Johnson, 25 MJ 691 (ACMR 1987); In the case of the United States v. McFarlin, 19 MJ 790 (ACMR 1985). Compare this with assault with intent to commit rape, a specific intent crime, where a mistake of fact as to victim’s consent need only be honest. In the case of the United States v. Langley, 33 MJ 278 (CMA 1991); see also In the case of the United States v. Apilado, 34 MJ 773 (ACMR 1992). In the United States v. Gaines, 61 MJ 689 (N-M. Ct. Crim. App. 2005). Appellant went into a dark room and touched the legs and pelvic area of the woman sleeping there, believing she was someone else. HELD:

Mistake of fact was raised in this case, especially as to the issue of consent. Had the victim consented to the touching, there would be no assault. If the appellant had an honest and reasonable belief that the victim consented to the touching, he would have a complete defense.

Mistake of Fact as to Age, Indecent Acts. In the case of the United States v. Zachary, 63 MJ 438 (CAAF 2006) (holding that it is a defense to indecent acts with a child that, at the time of the act, the accused held an honest and reasonable belief that the person with whom the accused committed the indecent act was at least sixteen years of age). In the case of the United States v. Strode, 43 MJ 29 (1995) (a mistake of fact may be a defense if the accused had an honest and reasonable belief as to the age of the victim and the acts would otherwise be lawful were the victim 16 or older).

Mistake of Fact as to Age, Carnal Knowledge. The accused carries the burden to prove the mistake of fact as to age by a preponderance of the evidence in a carnal knowledge case. RCM 916(b).

Mistake of Fact as to Age, Sodomy. “There is no mistake of fact defense available concerning the child’s age in Article 125, UCMJ, the offense of sodomy with a child under the age of sixteen.” In the case of the United States v. Wilson, 66 MJ 39 (CAAF 2008). The accused was not required to take the stand to raise the defense of the mistake of fact. In the case of the United States v. Sellers, 33 MJ 364 (CMA 1991).

Mistake of Law.

Ordinarily, a mistake of law is not a defense. RCM 916(l). In the case of the United States v. Bishop, 2 MJ 741 (AFCMR1977) (accused’s belief that under state law he could carry a concealed weapon not a defense to carrying a concealed weapon on base in violation of Article 134, UCMJ); In the case of the United States v. Ivey, 53 MJ 685 (Army Court Crim. App. 2000) (accused argued that he did not know what was meant by “actual buyer” on ATF Form 4473 when purchasing firearms for friends), aff’d, 55 MJ 251 (CAAF 2001); In the case of the United States v. Heitkamp, 65 MJ 861 (Army Court Crim. App. 2007) (accused believed it was lawful to possess methandienone; “[I]f an accused knows the identity of a substance that he is possessing or using but does not know that such possession or use is illegal, his ignorance is immaterial . . . because ignorance of the law is no defense.”). Under some circumstances, however, a mistake of law may negate a criminal intent or a state of mind necessary for an offense. R.C.M. 916(l)(1) discussion.

A mistake as to a separate, nonpenal law may exonerate. See In the case of the United States v. Sicley, 20 CMR 118 (CMA 1955) (honest mistake of fact as to claim of right under property law negates criminal intent in larceny); In the case of the United States v. Ward, 16 MJ 341 (CMA 1983) (honest mistake defense to presenting a false claim).

Reliance on decisions and pronouncements of authorized public officials and agencies may be a defense, although reliance on counsel’s advice would not be. RCM 916(l)(1) (discussion); R. Perkins and M. Boyce, Criminal Law 1041, 1043 (3rd ed. 1982). Cf. In the case of the United States v. Lawton, 19 MJ 886 (ACMR 1985) (behavior after obtaining lawyer’s opinion that married at common law, among other things, sufficient to raise mistake defense).

When an attorney advises an accused to act in a manner that the accused knows is criminal, the accused should not escape responsibility based on the attorney’s bad advice. Thus, the advice of counsel would not afford the accused any protection of self-evidently criminal misconduct, such as injuring someone, violating a lawful regulation, or taking someone else’s property without consent. In the United States v. Sorbera, 43 MJ 818 (AF Ct. Crim. App. 1996).

Special Evidentiary Rule. MRE 404(b) allows the prosecution to present evidence of uncharged crimes, wrongs, or acts committed by the accused to show the absence of a mistake. This is particularly important because such extrinsic evidence may be admitted even though the accused does not testify on his behalf. See In the case of the United States v. Beechum, 582 F.2d 898 (5th Cor. 1978) (en banc), cert. Denied, 440 US 920 (1979). Before such evidence is admitted, however, it must be tested against the criteria of MRE 403. See In the case of the United States v. Reynolds, 29 MJ 105 (CMA 1989).

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