U.S. v. Hibbard, 58 M.J. 71

Core Criminal Law Subjects: Crimes: Article 120 - Rape and Carnal Knowledge Pre-2019 offenses

1. rape is a general intent offense requiring proof that an accused deliberately or purposefully committed an act of sexual intercourse by force and without the victim’s consent; an honest and reasonable mistake of fact as to the victim’s lack of consent is an affirmative defense to a charge of rape

Core Criminal Law Subjects: Defenses: Affirmative Defenses

1. an affirmative defense may be raised by evidence presented by the defense, the prosecution, or the court-martial
2. an honest and reasonable mistake of fact as to the victim’s lack of consent is an affirmative defense to a charge of rape

Core Criminal Law Subjects: Defenses: Mistake of Fact

1. 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.
2. 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
3. an honest and reasonable mistake of fact as to the victim’s lack of consent is an affirmative defense to a charge of rape
4. 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
5. 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

Trial Stages: Merits: Instructions › Affirmative defenses

1. the military judge is required to instruct the court-martial panel on the availability and legal requirements of an affirmative defense, if the record contains some evidence to which the military jury may attach credit if it so desires
2. the defense theory at trial and the nature of the evidence presented by the defense are factors that may be considered in determining whether the accused is entitled to a mistake of fact instruction, but neither factor is dispositive; any doubt whether an instruction should be given should be resolved in favor of the accused
3. even if not requested by the defense, a military judge has a sua sponte duty to give certain instructions when reasonably raised by the evidence, including a defense instruction as to the affirmative mistake of fact defense
4. in considering whether a mistake of fact instruction is required, the military judge should take into account the manner in which the issue was litigated as well as the material introduced into evidence at trial
5. it is not necessary to present evidence of a mistake of fact in the defense case on the merits or to discuss such evidence in closing argument in order to obtain an instruction in a proper case
6. although the defense presentation at trial is not dispositive in determining what affirmative defenses have been reasonably raised by the evidence, the military judge may take into account the absence of a mistake of fact approach from the defense case when considering whether some evidence has been presented as to that defense

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. the issue of whether a jury was properly instructed is a question of law, which the Court reviews de novo
2. although it is not necessary to present evidence of a mistake of fact in the defense case on the merits or to discuss such evidence in closing argument in order to obtain an instruction in a proper case, it is appropriate for an appellate court to take into account the absence of such a presentation in assessing the significance of the evidence