mistake of fact instruction in Massachusetts

2023Because the defendant requested a jury instruction and objected to the judge's ruling denying that instruction, we review for prejudicial error.2 See Commonwealth v. Kelly, 470 Mass. 682, 687 (2015). 2 The defendant proposed the following instruction in pertinent part: 17 A mistake of fact instruction "is available where the mistake negates the existence of a mental state essential to a material element of the offense." Lopez, 433 Mass. at 725 .

2023The court did acknowledge, however, that a mistake of fact defense as to consent might be appropriate in "a future case where a defendant's claim of reasonable mistake of fact is at least arguably supported by the evidence." Id. at 732 .

2020See Grant, 391 Mass. at 651 (mistake of fact is not "raised in the absence of evidence from which the jury could find that, although the victim did not consent, the defendant reasonably and in good faith believed otherwise"); Sherry, 386 Mass. at 697 ("The defense of mistake of fact . . . requires that the accused act in good faith and with reasonableness"); 13The Supreme Judicial Court has suggested that, in declining to give a mistake of fact instruction, a judge may consider that the theory of defense was actual consent.

1988They argue that the requirement of reasonableness, alluded to in Commonwealth v. Grant, 391 Mass. 645 (1984), and adopted by the judge, is illogical, where the determinative issue in a mistake of fact defense should be whether the belief is genuine, not whether it is reasonable.

2020And to simply talk about the horrors of being raped doesn't substitute for the facts that exist." 11 battery charge.7 Among other things, the judge gave the mistake of fact instruction recognized in Commonwealth v. Blache, 450 Mass. 583, 594 (2008),8 which was limited to situations where the 7 The judge instructed: "The word 'indecent' is not a technical term, but rather a common word that may be assumed to be understood in its common meaning by an ordinary jury.

2020App. 1977) (same). 11Moreover, except where the mistake of fact concerns the victim's capacity to consent, see Blache, 450 Mass. at 594 , the mistake of fact defense has been rejected in sex offense cases.

2020See Moran, 439 Mass. at 490 . 19 Simcock, 31 Mass. App. Ct. at 189 ("A requirement for an instruction based upon one's actual mistake as to consent without regard to its reasonableness in the circumstances would be difficult to justify").

2013As we explained in Commonwealth v. Simcock, 31 Mass. App. Ct. 184, 189 (1991), because rape is a general intent crime in Massachusetts, “[a] requirement for an instruction based upon one’s actual mistake as to consent without regard to its reasonableness would be difficult to justify.” 13 At the same time, however, we noted that were Massachusetts a jurisdiction where a rape conviction required proof of specific intent, an “honest belief (whether reasonable or not)” would suffice to negate that intent and mandate an acquittal.

2020See Grant, 391 Mass. at 651 (mistake of fact is not "raised in the absence of evidence from which the jury could find that, although the victim did not consent, the defendant reasonably and in good faith believed otherwise"); Sherry, 386 Mass. at 697 ("The defense of mistake of fact . . . requires that the accused act in good faith and with reasonableness"); 13The Supreme Judicial Court has suggested that, in declining to give a mistake of fact instruction, a judge may consider that the theory of defense was actual consent.

2001See Commonwealth v. Sherry, supra at 688 , citing Commonwealth v. McDonald, 110 Mass. 405, 406 (1872).

2020Although the Supreme Judicial Court "hold[s] open the possibility that a mistake of fact instruction may be an appropriate and fair defense to charges of indecent 2 assault and battery on a person age fourteen or older," Commonwealth v. Kennedy, 478 Mass. 804, 811 (2018), we conclude that the trial judge did not err in declining to instruct on the defense because any subjective belief the defendant may have held as to the victim's consent was, in the facts and circumstances here, objectively unreasonable as a matter of law.

2018Commonwealth v. Kennedy , 478 Mass. 804 , 811 (2018), citing Commonwealth v. Lopez , 433 Mass. 722 , 732 (2001).

2023Because the defendant requested a jury instruction and objected to the judge's ruling denying that instruction, we review for prejudicial error.2 See Commonwealth v. Kelly, 470 Mass. 682, 687 (2015). 2 The defendant proposed the following instruction in pertinent part: 17 A mistake of fact instruction "is available where the mistake negates the existence of a mental state essential to a material element of the offense." Lopez, 433 Mass. at 725 .

2020See Moran, 439 Mass. at 490 . 19 Simcock, 31 Mass. App. Ct. at 189 ("A requirement for an instruction based upon one's actual mistake as to consent without regard to its reasonableness in the circumstances would be difficult to justify").

2018See Commonwealth v. Liebenow , 470 Mass. 151 , 161-162, 20 N.E.3d 242 (2014) (allowing mistake of fact instruction for charge of larceny where defendant thought property was abandoned); Commonwealth v. Kenney , 449 Mass. 840 , 857, 874 N.E.2d 1089 (2007) (defendant may present evidence of honest mistake about age of child depicted in pornographic material); Commonwealth v. Vives , 447 Mass. 537 , 540-541, 854 N.E.2d 1241 (2006) (defendant entitled to jury instruction on defense of honest and reasonable belief that he was collecting debt to refute element of intent to steal).

2018See Commonwealth v. Liebenow , 470 Mass. 151 , 161-162, 20 N.E.3d 242 (2014) (allowing mistake of fact instruction for charge of larceny where defendant thought property was abandoned); Commonwealth v. Kenney , 449 Mass. 840 , 857, 874 N.E.2d 1089 (2007) (defendant may present evidence of honest mistake about age of child depicted in pornographic material); Commonwealth v. Vives , 447 Mass. 537 , 540-541, 854 N.E.2d 1241 (2006) (defendant entitled to jury instruction on defense of honest and reasonable belief that he was collecting debt to refute element of intent to steal).

2001See Commonwealth v. Sherry, supra at 688 , citing Commonwealth v. McDonald, 110 Mass. 405, 406 (1872).

2001See State v. Smith, 210 Conn. 132, 142 (1989) (“We arrive at that result, however, not on the basis of our penal code provision relating to a mistake of fact . . . but on the ground that whether a complainant should be found to have consented depends upon how her behavior would have been viewed by a reasonable person under the surrounding circumstances”); State v. Koonce, 731 S.W.2d 431 , 437 n.2 (Mo. Ct. App. 1987) (construing rape statute to require defendant acted at least recklessly as to consent).

2001See People v. Mayberry, 15 Cal. 3d 143 (1975) (en banc).

1992See also Commonwealth v. Knap, 412 Mass. 712, 715 (1992); Commonwealth v. Dunne, 394 Mass. 10, 18-19 (1985); Commonwealth v. Baker, 17 Mass. App. Ct. 40, 42 (1983); Nelson v. Moriarty, 484 F.2d 1034 (1st Cir. 1973).

1992See also Commonwealth v. Knap, 412 Mass. 712, 715 (1992); Commonwealth v. Dunne, 394 Mass. 10, 18-19 (1985); Commonwealth v. Baker, 17 Mass. App. Ct. 40, 42 (1983); Nelson v. Moriarty, 484 F.2d 1034 (1st Cir. 1973).

1992See also Commonwealth v. Knap, 412 Mass. 712, 715 (1992); Commonwealth v. Dunne, 394 Mass. 10, 18-19 (1985); Commonwealth v. Baker, 17 Mass. App. Ct. 40, 42 (1983); Nelson v. Moriarty, 484 F.2d 1034 (1st Cir. 1973).