Citation. 721 A.2d 1111, 1998 Pa. Super. 3812.
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Fischer (D) was convicted of raping a fellow college student with whom, hours before the alleged rape, he had had a consensual sexual encounter. D argued at trial that in light of the previous encounter, he reasonably believed that his actions during the second encounter were consensual. D appeals on the basis that the trial counsel provided ineffective assistance in failing to request that the jury be instructed on a mistake of fact defense.
Synopsis of Rule of Law.
This court refuses to create a mistake of fact defense to the crime of rape.
Facts.
Fischer (D) was convicted of raping a fellow college student with whom, hours before the alleged rape, he had had a consensual sexual encounter. D argued at trial that in light of the previous encounter, he reasonably believed that his actions during the second encounter were consensual. D was convicted and subsequently retained new counsel, advancing the argument on appeal that the trial counsel provided ineffective assistance in failing to request that the jury be instructed that if it found that the appellant reasonably believed that the victim consented to his advances that it could find D not guilty.
Issue.
Had the trial counsel requested a jury instruction allowing for a mistake of fact defense, would such a request have been successful? In other words, is mistake of fact a viable defense in the case of rape?
Held.
No. Judgment affirmed.
The court follows the precedent set forth in Commonwealth v. Williams, 439 A.2d 765 (Pa. Super. 1982), in which the court refused to create a mistake of fact defense with regard to the issue of consent.
Appellant’s argument as to why Williams should not control this case was twofold. First, he argued that the defendant in the Williams case involved stranger rape, whereas the appellant had had intimate relations with the complainant hours before the alleged rape. Second, appellant argued that rape laws have changed since Williams and the language of the present statute, which defines “forcible compulsion” as compulsion by use of physical, intellectual, moral, emotional or psychological force, links the issues of consent with mens rea.
The court dispenses with these arguments on the basis that they are bound by the Williams precedent and refuses to distinguish Williams on the basis of the fact that the rape involved strangers.
Discussion.
This case illustrates the court’s reluctance to allow a mistake of fact defense in the case of rape.
