2022 (October Term)
United States v. Thompson, 83 M.J. 1 (it is a defense in a prosecution for sexual assault of a child charged under Article 120b(b), UCMJ (2018), which the accused must prove by a preponderance of the evidence, that the accused reasonably believed that the child had attained the age of 16 years, if the child had in fact attained at least the age of 12 years).
(an accused need not testify to establish a mistake of fact defense; the evidence supporting the defense can come from evidence presented by the defense, the prosecution, or the court-martial, and proof of the defense may be based on direct or circumstantial evidence).
(in this case involving a prosecution for sexual assault of a child charged under Article 120b(b), UCMJ (2018), in its opinion affirming the findings, the CCA twice stated that there was no direct evidence to support a mistake of fact defense and then said “and as such, the Defense failed to meet its burden;” the CCA’s use of the phrase “and as such” leaves the impression that the CCA rested its decision on an erroneous view that the mistake of fact defense required direct evidence; even though a CCA is presumed to know the law absent contrary indications, the CCA’s language creates at least “an open question” about whether the court applied the correct rule; accordingly, the CCA’s decision is set aside and remanded for a new Article 66(d)(1), UCMJ, factual sufficiency review).
2019 (October Term)
United States v. Rich, 79 M.J. 472 (mistake of fact may be a special defense under RCM 916(j)).
2016 (October Term)
United States v. Davis, 76 M.J. 224 (mistake of fact is a special (affirmative) defense under RCM 916(j)).
(the test for determining whether an affirmative defense of mistake of fact 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 threshold question in determining whether a military judge erred in failing to give a mistake-of-fact instruction is whether that defense was reasonably raised by the evidence — in other words, was there error at all).
(in this case, even assuming that appellant’s statement, “I thought she was joking until I saw her crying,” was some evidence of an honest mistake about consent, there was not an iota of evidence that such a belief was reasonable, where appellant overwhelmed the victim with physical force, pinned her down, and penetrated her while she repeatedly told him to stop; accordingly, the military judge did not err, let alone plainly err, by omitting mistake of fact as to consent from his instructions).
2015 (September Term)
United States v. Caldwell, 75 M.J. 276 (an honest and reasonable mistake of fact is a defense to general intent crimes, to include maltreatment).
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).
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).