Crim Law Question: Clash of the Supplements Forum

[romothesavior]

Emmanuel's Outline: "Most courts do not recognize the defense of mistake as to consent. This stems from the fact that most courts view rape as a crime of general intent. In other words, most courts require the prosecution to prove only that the defendant voluntarily committed an act of sexual intercourse- consequently, whether the defendant mistakenly thought the woman consented is irrelevant."

Dressler Understanding: "The general rule is that a person is not guilty of rape if he entertained a genuine and reasonable believe that the female voluntarily consented to intercoruse with him. This rule conforms with ordinary common law mistake of fact principles relating to general intent offenses."

So... which is right? I feel like Dressler is, because a person cannot harbor the requisite culpability for a general intent crime if they genuinely believe there is consent. But my mind is blown right now by these apparently conflicting rules.

[vamedic03]

Emmanuel's Outline: "Most courts do not recognize the defense of mistake as to consent. This stems from the fact that most courts view rape as a crime of general intent. In other words, most courts require the prosecution to prove only that the defendant voluntarily committed an act of sexual intercourse- consequently, whether the defendant mistakenly thought the woman consented is irrelevant."

Dressler Understanding: "The general rule is that a person is not guilty of rape if he entertained a genuine and reasonable believe that the female voluntarily consented to intercoruse with him. This rule conforms with ordinary common law mistake of fact principles relating to general intent offenses."

So... which is right? I feel like Dressler is, because a person cannot harbor the requisite culpability for a general intent crime if they genuinely believe there is consent. But my mind is blown right now by these apparently conflicting rules.

Go with what your professor says. If its not in your notes, go ask your prof.

[Emma.]

IMO Emmanuel's answer made sense when rape laws required the woman to resist so there wasn't as much of an issue of mistaken consent, but Dressler's answer is TCR.

[sarryn]

So... which is right? I feel like Dressler is, because a person cannot harbor the requisite culpability for a general intent crime if they genuinely believe there is consent. But my mind is blown right now by these apparently conflicting rules.

I could be wrong, but I think what you're saying is incorrect. For general intent crimes, there is a requirement that the mistake is made in good faith ("genuine") and reasonable. If that is the case, Dressler's rule would be the correct one since rape is a general intent crime (requires good faith & reasonable). On the other hand, for specific intent crimes, the mistake needs to only be in good faith (it doesn't have to be reasonable).

[Renzo]

There are too many varieties of rape rules for a "general rule" to be helpful. I would cross out both of those sentences in both books, and A) focus on what your prof. said in class and B) concentrate on the various alternative tests presented in the supplements, rather than an "general rule."

[Helmholtz]

If it's a general intent crime, reasonable mistake of fact will defend. If it's a specific intent crime, mistake of fact goes to the mens rea, so if the statute requires recklessness and D honestly but unreasonably believed the V was consenting, there is no rape; but if the statute requires negligence and D honestly but unreasonably believed that V was consenting, it's rape.

[Helmholtz]

There are too many varieties of rape rules for a "general rule" to be helpful. I would cross out both of those sentences in both books, and A) focus on what your prof. said in class and B) concentrate on the various alternative tests presented in the supplements, rather than an "general rule."

Yeah, I agree with this. Rape law is all over the place, e.g. Ohio's mens rea requirement as compared to some other states' strict liability provisions.

[vamedic03]

There are too many varieties of rape rules for a "general rule" to be helpful. I would cross out both of those sentences in both books, and A) focus on what your prof. said in class and B) concentrate on the various alternative tests presented in the supplements, rather than an "general rule."

^Bolded is TITCR. Your professor grades you exam, not your supplement author.

[swmichael]

My professor kept emphasizing "purposeful penetration" during our rape section, which obviously includes an element of Mens Rea...but go with what your prof. said.

[Helmholtz]

My professor kept emphasizing "purposeful penetration" during our rape section, which obviously includes an element of Mens Rea...but go with what your prof. said.

Yeah, that would just go to the act of penetration itself, not the mens rea as to consent.

and that's really weird that he would stress that - were there a lot of hypos in your class that dealt with claims of reckless penetration?

[Renzo]

My professor kept emphasizing "purposeful penetration" during our rape section, which obviously includes an element of Mens Rea...but go with what your prof. said.

Yeah, that would just go to the act of penetration itself, not the mens rea as to consent.

and that's really weird that he would stress that - were there a lot of hypos in your class that dealt with claims of reckless penetration?

Dude. "Reckless penetration" would be exactly how I would summarize the years of my life between 19-25.

[romothesavior]

If it's a general intent crime, reasonable mistake of fact will defend. If it's a specific intent crime, mistake of fact goes to the mens rea, so if the statute requires recklessness and D honestly but unreasonably believed the V was consenting, there is no rape; but if the statute requires negligence and D honestly but unreasonably believed that V was consenting, it's rape.

Yeah I get this. I just was blown away to see two completely contradictory statements in the supps, especially since they relied on the same reasoning (it's a general intent crime) to arrive at their conclusion. I think in most jurisdictions, rape is a general intent crime, so a reasonable and genuine mistake of fact (in this case consent) will defend.

And I found in my notes a brief section on mistake of consent, so I think we did talk about it. Not surprising since we used Dressler's casebook. On the exam, I'd probably do what you just did Helm... talk about how the mistake would be treated under different statutes depending on how they categorize the degree of culpability required for the offense.

[romothesavior]

Dude. "Reckless penetration" would be exactly how I would summarize the years of my life between 19-25.

[Helmholtz]

My professor kept emphasizing "purposeful penetration" during our rape section, which obviously includes an element of Mens Rea...but go with what your prof. said.

Yeah, that would just go to the act of penetration itself, not the mens rea as to consent.

and that's really weird that he would stress that - were there a lot of hypos in your class that dealt with claims of reckless penetration?

Dude. "Reckless penetration" would be exactly how I would summarize the years of my life between 19-25.

thank you for that - might try to include that line somewhere in my crim exam on Tuesday

[Renzo]

My professor kept emphasizing "purposeful penetration" during our rape section, which obviously includes an element of Mens Rea...but go with what your prof. said.

Yeah, that would just go to the act of penetration itself, not the mens rea as to consent.

and that's really weird that he would stress that - were there a lot of hypos in your class that dealt with claims of reckless penetration?

Dude. "Reckless penetration" would be exactly how I would summarize the years of my life between 19-25.

thank you for that - might try to include that line somewhere in my crim exam on Tuesday

Just don't mention it to my SO. I've spent a lot of time and effort avoiding that conversation to date, and I'd hate to see all that work wasted.