criminal law help! Rape.

[brandy4k]

A was charged with rape of B: A said he thought B was consenting; A contends that he honestly but unreasonably believed that B was consenting.

since rape is a general intent crime, this mistake of fact (A thinking B was consenting was mistake of fact. right?) wouldn't be a valid defense, right? cuz mistake of fact can be a defense only if it is reasonable, and A's mitake was unreasonable. so A should still be guilty of rape.

but there are bunch of cases that says if A honestly but unreasonably believed B was consenting, he's off the hook.

Which one should I follow?
is this something to do with MPC (no general or specific intent distinction) and common law rape difference?

what's the mens rea of rape? is it reckless?

[Illini1123]

im not 100% certain, but I think the mistake as to consent must be reasonable for the D to be off the hook.  Mistake of fact is only a defense when it negates the requisite MR.  Since rape is a general intent crime, the mistake of fact does not negate the MR.  D would still be reckless or neg'l if his belief about consent was not reasonable.

[goaliechica]

Do they tell you what the statute says, or whether you're working with common law or the MPC? This is my take, but I'm still in the process of studying this stuff.

Poster above is correct. Under common law, there is no clear mens rea for rape - it's a general intent crime that probably implies  knowingly or purposely having intercourse, but there is no required mens rea as to the element of the lack of consent. That part is strict liability. So unreasonable mistake of fact doesn't relieve liability, and neither does reasonable mistake. It seems like you'd need to know more about the actual facts to know whether or not the "by physical force" requirement was met, because that's how the common law gets around the question of whether this was a bad act without imposing a mens rea, since the common law is big on seeing the actus reus.

The MPC explicitly removes the consent element, and the resistance requirement, and says the intercourse must be "by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping." So under the MPC for it to be straight-up rape, you'd still need to show some kind of force or threat of force. It could be gross sexual imposition if there is a lesser threat that would prevent resistance by "a woman of ordinary resolution." Again, because the consent element is left out, there is no required mens rea either way as to the consent, so it just doesn't matter what the D thought, or whether he was reasonable in thinking it.

Some modern jurisidictions have kept the consent requirement and imposed or discussed imposing a mens rea on this element of the crime. However, if you only know that D was unreasonable in his mistake (negligent), and cannot show that he was aware of the risk of harm (reckless), his mens rea may not be sufficiently culpable to convict him of rape, because the MPC and many jurisdictions are hesitant to impose a mens rea of less than recklessness for criminal liability.

Someone correct me if I'm wrong! Very possible! 

Were there any more facts included in your hypo? It seems like a difficult question unless you know what laws they want you to apply, and about the force, etc.

[bossofyou]

A was charged with rape of B: A said he thought B was consenting; A contends that he honestly but unreasonably believed that B was consenting.

Same thing happened to me once.  What a freakin mess!  Here's what I remember from the whole ordeal - retarded chicks can't consent.  Can you believe that?  Whatever, a few more years and I'll get rid of this registration/reporting requirement.

[spotonjane]

Not sure how helpful this is with regards to the specifics of your question as I only remember the general gist of rape analysis, but that kind of question is exam material because there is no true way on answering because there is no specific answer that give any comprehensive analysis. The best way to tackle this kind of question is to tackle it by examining how different sources of authority tackle it and contrasting the varied approaches. Do a MPC analysis, then look at how it is dealt with under the various standards imposed by common law. The common law is particularly varied here so the best approach is to use case law to show how the various approaches differ and highlighting the differences.

[CRDFNSKY]

This is where jury instructions are helpful in practice.