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Forcible Rape: Mistake of Consent Defense?

What if you genuinely believed the person to have consented? What if you reasonably but mistakenly thought your advances were welcome?

In 2001 the Supreme Judicial Court of Massachusetts held that a person charged with rape is not entitled to a mistake of fact instruction. This puts Massachusetts in the minority, the majority of states in the United States do recognize and allow a mistake of fact defense. Defense counsel’s only recourse is to request strong jury instructions on the element of force. Asking the jury to consider the degree of force and find that it must be greater than that necessary to effectuate intercourse.   Only then must the jury find the accused guilty of the crime.

It should be clear to all, including non-lawyers that this instruction or one like it just doesn’t cut it.