Confusing Decision from Court of Appeals Affirming Rape Conviction

At trial, the defendant was convicted of several offenses, including rape, following an incident with his then wife. The defendant initially contended that his wife had been assaulted by intruders but she testified that the defendant was the one who attacked and raped her. The defendant later claimed that he and his wife had engaged in consensual “kinky” sex which resulted in her injuries.

The defendant was convicted at trial and then on appeal he argued that the trial court erred in failing to instruct the jury as to mistake of fact regarding consent. Although the defense did not request this instruction, the Court of Appeals explained that such a charge must be given by the trial judge sua sponte when mistake of fact is either asserted as an affirmative defense or raised by the evidence.

The Court of Appeals held that, in this case, the absence of a jury instruction on mistake of fact was not error since the defense was that the sex actually was consensual and not that the defendant was mistaken about whether his wife consented. Additionally, the Court added that even if mistake of fact was the defendant’s argument at trial, the fact that the jury found that the element of force had been proven “negated any possible mistake as to consent.”

NOTE: This ruling may be correct with respect to the facts of this case, but it is a bit peculiar. Essentially, the Court of Appeals held that if the jury convicts the defendant of rape, then it is irrelevant that the jury was improperly instructed on the element of consent. In order to prove the offense of rape, it must be proven that the sexual intercourse was both “forcibly and against her will.” Both of these elements must be proven beyond a reasonable doubt. By separating force and consent into two distinct elements, the legislature clearly understood that in some cases you can have non-consensual sex without the element of force, and that you could have forcible sexual intercourse, but with consent (i.e., sadomasochism). This ruling today blurs these two elements into one which will make appealing these convictions much more difficult in the future.