That’s the interesting question addressed by this post on the TJAGLCS Crim Law Department’s 31(b)log.

4 Responses to “Is mistake of fact as to consent a defense to a new new Article 120 charge?”

  1. John Baker says:

    I recently discovered the 31(b)log — another outstanding effort from the Crim Law Department down in Charlottesville.

  2. No Man says:

    So only in rare circumstances is mistake of fact (but not consent in 31(b)log’s definition) a defense to a sexual act with another person where force is involve.  The why does the Manual go to such lengths to define consent?

  3. Jim Clark says:

    Two points: 
    1. There is no legislative history to the 2012 Art.120, so “no one knows” is the only accurate answer to your question. But, my educated guess is that the extensive definition of consent is an attempt to be sure that judicial instructions are given on all the points in the definition, such as “manner of dress . . . shall not constitute consent.” Consent (B) also makes clear three situations in which evidence of consent is irrelevant. (Although, keeping in mind that Sexual Assault is, in some cases, an LIO, as a judge (which I am not) I would usually allow testimony about consent.
    2. The 31(b)log posting is not very likely to be accepted by the Benchbook authors. It is an attempt to interpret the language of the statute, and does not factor in (a)the general paternalistic approach of the MCM; (b)the difficulty that military-law-primarily educated attorneys have imagining a sexual crimes statute without consent or one without Mistake of Fact. This despite the fact that no civilian jurisdiction has a mistake of fact defense remotely like RCM 916(j). (Most, if they have MOF at all, follow the Uniform Penal Code language that limits it to evidence negating an element.)

  4. stewie says:

    I get consent is generally not at issue, but at the end of the day, if an Accused presents a credible situation where a reasonable person would believe that he had permission to engage in sexual activities with the alleged victim (a wild example: He said can we have sex, she says “ok” but come to find out she has a weird quirk where “ok” means no) then find it hard to believe that he will be convicted or that such a conviction would be upheld on appeal.