CORE CRIMINAL LAW SUBJECTS: Defenses: Mistake of Fact

2011 (September Term)

United States v. Goodman, 70 M.J. 396 (mistake of fact is a special defense; it is a defense when it negatives the existence of a mental state essential to the crime charged; in other words, an accused may not be convicted when it is shown that he does not have the mental state required by law for commission of that particular offense).

(if the ignorance or mistake of fact goes to an element requiring premeditation, specific intent, willfulness, or knowledge of a particular fact, the ignorance or mistake need only have existed in the mind of the accused; however, if the ignorance or mistake goes to any other element requiring only general intent or knowledge, the ignorance or mistake must have existed in the mind of the accused and must have been reasonable under all the circumstances).

(because the violation of a general regulation is a general-intent offense, mistake of fact is not a defense unless the mistake is both honest and reasonable; the honest belief prong is subjective, while the reasonableness prong is objective).

2008 (September Term)


United States v. Paige, 67 M.J. 442 (mistake of fact as to consent is an affirmative defense that can be raised even in the absence of an accused’s testimony). 

2008 (Transition)


United States v. Wilson, 66 M.J. 39 (there is no mistake of fact defense available with regard to the child’s age in the Article 125, UCMJ, offense of sodomy with a child under the age of sixteen).

 

(if a mens rea exists with respect to the fact of age, a mistake of fact defense would inexorably follow). 

 

(creation of a mistake of fact defense with regard to the child’s age in the Article 125, UCMJ, offense of sodomy with a child under the age of sixteen, is a decision for policymakers, and not for the CAAF). 

 
(the practice of the majority of jurisdictions is that the crime of sodomy with a child does not contain a mens rea with respect to the age of the child or permit a mistake of fact defense absent legislative action). 

 

2007


United States v. Gutierrez, 64 M.J. 374 (the affirmative defense of mistake of fact is a required instruction under RCM 920(e)(3); when this defense is reasonably raised by the evidence, the military judge is duty-bound to give an instruction, unless it is affirmatively waived). 

 

(an accused does not waive his right to a mistake of fact instruction by failure to request it or by failure to object to its omission). 

 

(the defense counsel affirmatively waived an instruction on the affirmative defense of mistake of fact with respect to the lesser-included offense of assault consummated by a battery, where during an Article 39(a) session, the military judge raised a possible mistake of fact instruction for that offense and specifically asked the defense counsel if he was requesting one, and the defense counsel replied that he simply did not want to request one for battery; the defense counsel was presented with the opportunity to request or decline the mistake of fact instruction; he chose to decline it, and in doing so he affirmatively waived his right to the instruction; in the context of the whole record, there is no doubt that defense counsel’s statement was a purposeful decision to forego the defense instruction as to assault consummated by battery).

2006

 

United States v. Zachary, 63 M.J. 438 (the defense of mistake of fact is available to a military accused who is charged with committing indecent acts with a child).

 

(an honest and reasonable mistake of fact as to the alleged victim’s age is a valid defense to the offense of indecent acts with a child because it negates an element of the Article 134 offense, even though the acts are indecent for reasons other than the victim’s minor status, i.e., by occurring in the presence of a third party; the mistake of fact is not simply a mitigating factor relevant to the degree of the accused’s culpability). 

 

(it is a basic principle of criminal law that an honest and reasonable mistake of fact can negate the mens rea requirement to a general intent crime; mistake of fact is a defense where, if the circumstances were as the accused believed them to be, the accused would not be guilty of the offense; neither the President nor Congress intended age to be a strict liability element as to the crime of indecent acts with a child).

 

(mistake of fact as to age is now a clearly delineated defense for the crimes of sodomy and carnal knowledge). 

 

(a mistake of fact defense is available as to the offense of indecent acts with a child regardless of whether other facts may establish indecency).

 

(the minor status of the victim is an element of the offense of indecent acts with a child, not an aggravating factor; an honest and reasonable mistake of fact defense as to the victim’s age under Article 134, UCMJ, does not fall away simply because the act is indecent for reasons other than the victim’s minor status). 

 

2003

United States v. Hibbard, 58 M.J. 71 (when an accused is charged with a crime in which knowledge or intent is material as to an element, it is a defense to an offense that the accused held, as a result of ignorance or mistake, an incorrect belief of the true circumstances such that, if the circumstances were as the accused believed them, the accused would be not guilty of the offense.)

(if the accused is charged with a general intent offense such as rape, the ignorance or mistake must have existed in the mind of the accused and must have been reasonable under all the circumstances).

(an honest and reasonable mistake of fact as to the victim’s lack of consent is an affirmative defense to a charge of rape).

(the test for determining whether an affirmative defense of mistake of fact defense has been raised is whether the record contains some evidence of an honest and reasonable mistake to which the members could have attached credit if they had so desired; the totality of the circumstances at the time of the offense are considered in applying this test).

(the evidence cited by the defense, when considered in light of the totality of the circumstances, including the manner in which the issue was litigated at trial, was insufficient to reasonably raise the issue of whether the accused had a reasonable belief that the alleged rape victim consented to sexual intercourse; as a result, the judge's refusal to instruct the members on a mistake of fact defense as to consent was not error).

2001

United States v. Binegar, 55 MJ 1 (an honest mistake of fact as to a soldier’s entitlement or authorization to take property is a defense to a charge of larceny under Article 121, UCMJ, one element of which is the specific intent to steal).

(in order to determine whether an alleged mistake must only be honest, or both honest and reasonable, the pertinent inquiry is whether the purported mistake concerns a fact which would preclude the existence of some required specific intent).

(a military superior’s permission to his subordinate to dispose of government property to other servicemembers is not the type of fact which is unrelated to a specific intent of the subordinate to steal from the Government; therefore, any mistake of fact must only be honest to provide a defense).

(military judge’s instructional error informing the members that appellant’s mistake must have been both honest and reasonable, rather than only honest in order to provide a defense to larceny was materially prejudicial where: (1) the instruction placed a lesser burden on the government to prove appellant’s guilt because it could secure his conviction by disproving either the honesty or the reasonableness of the mistake; (2) trial counsel exploited the erroneous instruction in his findings argument; and (3) the government presented a substantial case on the unreasonableness of appellant’s conduct, creating a reasonable possibility that the members resolved this case against appellant on this basis).

1999

United States v. Bickley, 50 MJ 93 (accused’s mention during sentencing that he thought he read a training manual which gave him until 0900 to turn a personal weapon into arms room raised only a mere possibility of a mistake of law which was insufficient to overturn guilty plea to violating lawful general regulation).

United States v. Watt, 50 MJ 102 (although an honest and reasonable mistake of fact as to consent is a defense in rape cases, the defendant’s beliefs about the victim’s sexual relations with other people are irrelevant to whether the victim was actually consenting with the defendant at the time of alleged nonconsensual sexual act).

United States v. Schuler, 50 MJ 254 (National Defense Authorization Act for Fiscal Year 1996, § 1113, Pub.L.No. 104-106, 110 Stat. 186, 462 (1996), amended Article 120, UCMJ, effective February 10, 1996, to permit an accused to raise the defense of reasonable mistake of fact to a charge of carnal knowledge; the accused has the burden of proof by a preponderance of the evidence).


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