Mistake of Fact as to Consent

Overview of the mistake of fact as to consent in defenses:

1. RCM 916(j) defense for crimes prior to 2007 and after 28 June 2012;

– in 2012 Art. 120, do not presume it applies 16

2. Statutory defense for 2007 Art. 120(t)(15)

-requires both subjective and objective mistake; U.S. v. Willis, 41 M.J. 435, 437-38(CAAF 1995)

-does he endorse rape myths? counter them on cross (“so everyone who wears a short dress wants to have sex with you?”)

-“Myth communication” : society, and most TC, endorse the suggestion that men “just don’t understand” a refusal that is not a clearly stated “No, I don’t consent”; this is experientially false: in common social situations, “[p]eople issue rejections in softened language, and people hear rejections in softened language, and the notion that anything but a clear ‘no’ cannot be understood is just nonsense. . . . Rape results from a refusal to heed, rather than an inability to understand, a rejection.” Nearly any man who has been at a singles bar has heard a soft rejection, and understood it as such.”

Military Sexual Assault Defenses: Mistake of Fact Explained by a Military Defense Lawyer

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