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Abstract: 

A “mistake” defense allows a rapist to argue that, although the victim was screaming “no” and physically resisting the assault, he didn’t commit a crime because he had a “reasonable basis” for mistakenly thinking the conduct was consensual. In other words, the rapist’s erroneous impression of a victim’s state of mind trumps both the victim’s actual state of mind and the rapist’s true intent. While the defendant’s “mistake” would have to be “reasonable,” reasonableness would be measured from the subjective perspective of the perpetrator, which means “reasonable” could be downright preposterous. To demonstrate the “reasonableness” of his subjective point of view, a rapist would likely be free to offer evidence of a victim’s prior sexual behavior, sexual reputation, etc. to explain the basis for his false impression on the night in question. This aspect of the proposed defense would undermine important rapeshield laws and privacy rights for victims.

Keywords: 

Affiliations:  1: Sexual Assault Report.