was holding a knife in his left hand at the time the victim consented to sexual intercourse. The court
was not convinced. U.S. v. Moody, 10 MJ 845 (NCMR 1981).
Another case involved a card game where the loser had to take a drink. After a quart of
bourbon was consumed by the five players, the victim (one of the five) testified that she woke up in bed
with one of them. The accused was charged with rape (although she didn't remember having sex with
him). He argued he thought it was consensual, in that she was awake, responsive, and said his name
once or twice. The evidence raised the mistake of fact defense due to "her appearance of consent," at
least to the accused. The Court of Military Appeals returned the case to the Air Force of Military
Review for an evidentiary hearing on this issue. U.S. v. Baran, 22 MJ 265 (CMA 1986). On further
review, the government argued that the victim had been "too drunk to be capable of giving her consent."
The Air Force Court held that whether or not she did consent, was a mistake of fact issue. The
government had not proven beyond a reasonable doubt that there was no such mistake. The Court
reversed the conviction. U.S. v. Baran, 23 MJ 736 (AFCMR, 1986).
COMMENT: If the ignorance or mistake goes to an element requiring premeditation, specific intent,
willfulness, or knowledge of a particular fact, the ignorance or mistake only needs to have existed in the
mind of the accused in order to be a valid defense. However, if the ignorance or mistake goes to any
other element requiring only general intent or knowledge, the ignorance or mistake must have existed in
the mind of the accused and have been reasonable under all the circumstances. Perhaps a simpler way
of viewing the defense of mistake regarding general intent crimes is that an extra burden of
reasonableness is placed upon the accused where the defense is raised to a crime where intent is not
normally an issue.
EXAMPLE: Mistake of fact as to consent to intercourse was not reasonable when based on belief by
accused that victim "would consent to intercourse with anyone." United States v. Traylor, 40 MJ 248
(CMA 1994). Mistake of fact must be honest and reasonable; one must exercise due care with respect to
the matter at issue. United States v. True, 41 MJ 424 (CAAF 1995).
EXAMPLE: Mistake of fact as to lack of consent in a prosecution for rape is not reasonable if the 13
year old victim is a virgin who is so intoxicated that she would not have been able to consent or resist
even if she was aware of the intercourse, notwithstanding her response of "Yeah" when the accused
asked her if she "wanted to do it." United States v. Yarborough, 39 MJ 566 (ACMR 1994).
COMMENT: The United States Court of Appeals for the Armed Forces has expanded the applicability
of the excuse of mistake of fact to sexual offenses in its decision in United States v. Strode, 43 MJ 29
(1995) In Strode, the CAAF held that the defense of mistake of fact is available to a military accused
who is charged with committing indecent acts with a child under the age of sixteen if he had an honest
and reasonable belief as to the age of the person and if the acts would otherwise be lawful were the
prosecutrix age sixteen or older. The court reasoned that a mistake of fact as to the age of the victim