Mistaken Belief or Ignorance

Degrees of Mistake or Ignorance of Fact

A subjectively honest mistake

courtmartialdefenselawyers11.00.34 2A subjectively honest mistake of fact or ignorance is generally a defense to crimes requiring premeditation, specific intent, knowledge, or willfulness. R.C.M. 916(j). In United States v. McDonald 57 M.J. 18 (2002) the Court found that the defendant was entitled to mistake of fact instruction as to buying stolen retail merchandise. In United States v. Binegar, 55 M.J. 1 (C.A.A.F. 2001) and in United States v. Turner, 27 M.J. 217 (C.M.A. 1988), the both military judges held that an honest mistake of fact is a defense to larceny.

In United States v. Hill, 32 C.M.R. 158 (C.M.A. 1962) the Court found that a defendant’s honest belief that the owner gave him permission to use car is a good defense to a charge of wrongful appropriation. See also United States v. Jett, 14 M.J. 941 (A.C.M.R. 1982). Similarly, in United States v. Graves, 23 M.J. 374 (C.M.A. 1987) the Court held that an honest mistake can be a defense to presenting a false claim. See also United States v. Ward, 16 M.J. 341 (C.M.A. 1983). And, in United States v. Oglivie, 29 M.J. 1069 (A.C.M.R. 1990), the Court has also held that an honest mistake can be a defense to making a false official statement.

United States v. Gillenwater, 43 M.J. 10 (C.A.A.F. 1995). The Court held that a mistake of fact defense was appropriately raised in the prosecution for wrongful appropriation of government tools where the defendant’s former supervisor testified that he gave accused permission to take things home for government use. See also United States v. Gunter, 42 M.J. 292 (C.A.A.F. 1995).

United States v. McDivitt, 41 M.J. 442 (C.A.A.F. 1995). The court concluded that the defendant could not raise the mistake of fact defense where he signed official documents falsely asserting that he had supported dependents for prior two years in order to obtain higher allowances after being advised that he was entitled to allowances at higher rate until divorced.

An objectively honest and reasonable mistake

An objectively honest and reasonable mistake is a defense to general intent crimes— crimes lacking an element of premeditation, specific intent, knowledge or willfulness. R.C.M. 916(j). See United States v. Brown, 22 M.J. 448 (C.M.A. 1986).

bestmilitarydefensedefenseattorneys10.04.14PMcopyCourts have held in rape cases that defendants could raise the defense of mistake. See United States v. Carr, 18 M.J. 297 (C.M.A. 1984), and United States v. Davis, 27 M.J. 543 (A.C.M.R. 1988).

In United States v. Graham, 3 M.J. 962 (N.C.M.R. 1977) the Court held that the defendant’s honest and reasonable mistaken belief the he had permission to be gone was a legitimate defense to a charge of AWOL.

In United States v. Jenkins, 47 C.M.R. 120 (C.M.A. 1973), the Court found that the defendant’s honest and reasonable belief he had a “permanent profile” was a legitimate defense to disobedience of a general regulation requiring shaving.

In United States v. Oglivie, 29 M.J. 1069 (A.C.M.R. 1990) the Court held that an honest and reasonable mistake is required for a defense to the general intent crime of bigamy.

In United States v. Barnard, 32 M.J. 530 (A.F.C.M.R. 1990) the Court found that an honest and reasonable mistake is required for a defense to the general intent crime of dishonorable failure to maintain sufficient funds.

In United States v. McMonagle, 38 M.J. 53 (C.M.A. 1993) the Court determined that a mistake of fact can rebut state of mind required for depraved-heart murder and can negate element of unlawfulness and thus, killing was justified if accused honestly and reasonably thought that he was shooting at a combatant.

In United States v. New, 50 M.J. 729 (A. Ct. Crim. App. 1999), aff’d 55 M.J. 97 (C.A.A.F. 2001) the Court found that a mistake about the lawfulness of an order to wear UN accouterments must be both honest and reasonable.

Honest mistake

If the defendant makes an honest mistake, resulting in the commission of an unlawful act, the honest mistake negates an element of premeditation, specific intent, willfulness, or actual knowledge. See United States v. Binegar, 55 M.J. 1 (C.A.A.F. 2001).

Special cases

Certain offenses such as bad checks and dishonorable failure to pay debts require a special degree of prudence, requiring that the mistake and ignorance standards be adjusted accordingly. See United States v. Barnard, 32 M.J. 530 (A.F.C.M.R. 1990). Other offenses, like carnal knowledge, have strict liability elements. See United States v. Dougal, 32 M.J. 863 (N.M.C.M.R. 1991).

Result of Mistaken Belief

To be a successful defense, the mistaken belief must be one which would, if true, exonerate the accused. This concept has consistently been applied to cases where the defendant was charged with a drug related offense and was mistaken as to the type of drug. Mistake as to the type of controlled substance is not exculpatory. See United States v. Myles, 31 M.J. 7 (C.M.A. 1990), United States v. Mance, 26 M.J. 244 (C.M.A. 1988), and United States v. Heitkamp, 65 M.J. 861 (A. Ct. Crim. App. 2007).

bestmilitarydefensedefenseattorneys10.06.47PMcopyUnited States v. Vega, 29 M.J. 892 (A.F.C.M.R. 1989). The Court held that there was no mistaken belief defense where the accused believed he possessed marijuana rather than cocaine.

United States v. Fell, 33 M.J. 628 (A.C.M.R. 1991). The Court determined that where the defendant was charged with robbery, the defendant’s honest belief that the money was his is a legitimate defense to robbery of the money.

United States v. Anderson, 46 C.M.R. 1073 (A.F.C.M.R. 1973). The Court found that where the defendant was charge an offense related to LSD, the defendant’s belief that the substance was mescaline was no defense to the LSD offense.

United States v. Calley, 46 C.M.R. 1131, 1179 (A.C.M.R. 1973). In a case where the defendant was charged with homicide, the Court found that the defendant did not have a mistaken belief defense because he believed the victims were PWs rather than noncombatants.

United States v. Jefferson, 13 M.J. 779 (A.C.M.R. 1982). Where the defendant thought heroin was hashish, the Court found that the defendant could not raise the mistaken belief defense.

Mistake of Fact and Sex Offenses

Mistake of Fact as to Consent

For offenses that occurred after September 30, 2007, Article 120 provides that consent and mistake of fact as to consent are affirmative defenses for Rape, Aggravated Sexual Assault, Aggravated Sexual Contact, and Abusive Sexual Contact. See UCMJ art. 120(r) & (t)(14).

Mistake of Fact as to Consent

courtmartialdefenselawyers11.01.15 2For offenses occurring prior to 1 October 2007, an honest and reasonable mistake of fact as to consent is a defense in rape cases. However, the mistake of fact defense is not available in conspiracy to commit rape absent evidence that all co-conspirators had a mistaken belief that the victim consented. See United States v. Taylor, 26 M.J. 127 (C.M.A. 1988), United States v. Baran, 22 M.J. 265 (C.M.A. 1986), United States v. Carr, 18 M.J. 297 (C.M.A. 1984) and United States v. Davis, 27 M.J. 543 (A.C.M.R. 1988). See also United States v. Daniels, 28 M.J. 743 (A.F.C.M.R. 1989), where the Court discusses the sufficiency of evidence to raise the mistake of fact as to consent defense.

United States v. True, 41 M.J. 424 (1995).   The Court found that mistake of fact as to victim’s consent to sexual intercourse cannot be predicated upon negligence of the defendant. The mistake must be honest and reasonable to negate a general intent or knowledge.

United States v. Willis, 41 M.J. 435 (1995). In this case the Court distinguishes procedural requirements in cases where mistake of fact as to whether the victim consented to intercourse is the defense as opposed to cases where actual consent is the defense. When the evidence raises only an issue as to actual consent, the military judge has no sua sponte duty to instruct on mistake. On the other hand, in United States v. Brown, 43 M.J. 187 (1995), the Court observed, “[i]n every case where consent is a defense to a charge of rape, the military judge would be well advised to either give the mistake instruction or discuss on the record with counsel the applicability of the defense.”

United States v. Hibbard, 58 M.J. 71 (C.A.A.F. 2003). This case mdiscussed the issue of sufficiency of evidence to show whether the defendant had a reasonable belief that the victim consented to sexual intercourse.

United States v. Yarborough, 39 M.J. 563 (A.C.M.R. 1994). In a case involving the rape of a 13-year old, the Court applied a reasonableness standard in determining whether or not the defendant had a valid defense of mistake of fact.

United States v. Valentin-Nieves, 57 M.J. 691 (N-M. Ct. Crim. App. 2002). The Court found that the victim’s alleged statement that she would not mind having sex with the defendant did not establish mistake of fact where, a few days later, the defendant took the very intoxicated victim into a bathroom and had sexual intercourse with victim, who at the time was “too weak to hold [her]self up let alone hold someone else away.”

United States v. Barboza, 39 M.J. 596 (A.C.M.R. 1994). The Court found that there could be no honest or reasonable mistake of fact as to consent to intercourse and sodomy where the defendant and victim hardly knew each other, had no dating relationship, and the victim told the defendant that she did not want to have sex.

United States v. Campbell, 55 M.J. 591 (C.G. Ct. Crim. App. 2001). The Court found that the evidence established the affirmative defense of mistake of fact as to consent. The victim’s failure to take action to stop the defendant from touching her ribs and across her front after consenting to his giving her a back rub was sufficient to confirm in the mind of a reasonable person that she was consenting to his actions. His departure from the back rub to front side caress ultimately led to the touching of her breasts.

bestmilitarydefenseucmjdefenselawyer75United States v. Parker, 54 M.J. 700 (A. Ct. Crim. App. 2000), rev’d on other grounds, 59 M.J. 195 (C.A.A.F. 2003). In this case the government did not disprove the defendant’s defense that he mistakenly believed that the victim consented to the intercourse and sodomy. The victim admitted that she and the defendant engaged in a consensual relationship for several months before the first alleged rape. The relationship included consensual sexual acts, which were similar to the acts she claimed were nonconsensual.

United States v. Black, 42 M.J. 505 (A. Ct. Crim. App. 1995). In this case the Court concluded that evidence that the victim of sex offenses may have engaged in oral sex with another individual prior to assault by the defendant was not relevant to show that the defendant was mistaken as to consent of victim to engage in such acts with the defendant.   See also, United States v. Greaves, 40 M.J. 432 (C.M.A. 1994) and United States v. Traylor, 40 M.J. 248 (C.M.A. 1994).

United States v. Peterson, 47 M.J. 231 (C.A.A.F. 1997). The Court held that the consent element is a general intent element, even though indecent assault requires specific intent to gratify lust. See also United States v. Johnson, 25 M.J. 691 (A.C.M.R. 1987).   In United States v. Johnson, 25 M.J. 691 (A.C.M.R. 1987) the Court found that even though indecent assault is a specific intent crime, a mistake of fact as to the victim’s consent must be both honest and reasonable as the defense goes to the victim’s intent and not the defendant’s intent. See also United States v. McFarlin, 19 M.J. 790 (A.C.M.R. 1985). Compare this with assault with intent to commit rape, a specific intent crime, where a mistake of fact as to victim’s consent need only be honest. United States v. Langley, 33 M.J. 278 (C.M.A. 1991); see also United States v. Apilado, 34 M.J. 773 (A.C.M.R. 1992).

United States v. Gaines, 61 M.J. 689 (N-M. Ct. Crim. App. 2005). The appeals court held that mistake of fact was raised, where the appellant went into a dark room and touched the legs and pelvic area of the woman sleeping there, believing she was someone else.

Mistake of Fact as to Age: Indecent Acts

An honest and reasonable mistake of fact as to the age of the victim is a defense to a charge of indecent acts with a child. See United States v. Zachary, 63 M.J. 438 (C.A.A.F. 2006) and United States v. Strode, 43 M.J. 29 (1995).

Mistake of Fact as to Age: Carnal Knowledge

Where the charge is carnal knowledge, the defendant has the burden to prove mistake of fact as to age by a preponderance of the evidence. R.C.M. 916(b).

Mistake of Fact as to Age: Sodomy

bestmilitarydefensedefenseattorneys10.03.38PM“There is no mistake of fact defense available with regard to the child’s age in the Article 125, UCMJ, offense of sodomy with a child under the age of sixteen.” United States v. Wilson, 66 M.J. 39 (C.A.A.F. 2008).

Accused not required to take stand to raise defense of mistake of fact. United States v. Sellers, 33 M.J. 364 (C.M.A. 1991).

Mistake of Law

Ordinarily, mistake of law is not a defense. R.C.M. 916(l). United States v. Bishop, 2 M.J. 741 (A.F.C.M.R. 1977). This rule has been applied in firearms cases, see United States v. Ivey, 53 M.J. 685 (A. Ct. Crim. App. 2000) and to drug cases, see United States v. Heitkamp, 65 M.J. 861 (A. Ct. Crim. App. 2007).   However, there are some circumstances where a mistake of law may negate a criminal intent or a state of mind necessary for an offense. R.C.M. 916(l)(1) discussion. See United States v. Sicley, 20 C.M.R. 118 (C.M.A. 1955); and United States v. Ward, 16 M.J. 341 (C.M.A. 1983).   In United States v. Lawton, 19 M.J. 886 (A.C.M.R. 1985), the Court held that behavior after obtaining lawyer’s opinion that married at common law, inter alia, was sufficient to raise mistake defense. On the other hand, when an attorney advises a defendant to act in manner that the defendant knows is criminal, the defendant cannot escape responsibility on the basis of the attorney’s bad advice. United States v. Sorbera, 43 M.J. 818 (A.F. Ct. Crim. App. 1996).

Special Evidentiary Rule

MRE 404(b) allows the prosecution to present evidence of uncharged crimes, wrongs, or acts committed by the accused in order to show the absence of a mistake. This is particularly important because such extrinsic evidence may be admitted even though the accused does not testify on his own behalf. See United States v. Beechum, 582 F.2d 898 (5th cir. 1978) (en banc), cert. denied, 440 U.S. 920 (1979). See also United States v. Reynolds, 29 M.J. 105 (C.M.A. 1989).