433 Mass. 722, 745 N.E.2d 961
On May 8, 1998, the seventeen-year-old victim, who lived in a foster home in Springfield, was walking to a restaurant to meet her biological mother when she encountered the defendant, Kenny Lopez.1 The defendant introduced himself, asked where she was going, and offered to walk with her.2 She met her mother at the restaurant and introduced the defendant as her friend.3 The defendant told the mother that he lived in the same foster home as the victim and that they knew each other from school.4
After the defendant left briefly to make a telephone call, the victim left the restaurant and found the defendant waiting outside. He offered to walk her home, which she accepted.5 The two walked to a park across the street from the victim's foster home and talked for twenty to thirty minutes.6 The defendant then suggested they take a walk in the nearby woods.7 Despite the victim's statement that she wanted to go home, he led her down a path to a secluded area.8
In the woods, the defendant grabbed the victim by her wrist and began kissing her on the lips despite her pulling away and saying no. He raised her shirt and touched her breasts, which she resisted by pulling her shirt down and pushing him away.9 The defendant then pushed the victim against a slate slab, unbuttoned her pants and pulled them down, pinned her legs with his own, and raped her twice, first after she refused to put on a condom he produced and again after turning her around and pushing her face into the slate when she tried to move away.10
The victim began to cry during the rapes.11 Afterward the defendant told her she would get in a lot of trouble if she said anything before grabbing her arm, kissing her, and saying he would see her later.12 The victim went home, showered, and told her foster mother, who immediately called 911.13 The victim cried hysterically while speaking to the operator.14 A treating physician later observed significant bruising to the victim's knees and excessive force and trauma to the vaginal area, including swelling and a torn hymen that was still oozing.15
The defendant testified at trial that the victim had been a willing and active partner in consensual sexual intercourse.16 He claimed that she initiated the intimate activity, never told him to stop, and invited him to a party that evening.17 Before the jury retired, defense counsel requested a mistake of fact instruction as to consent.18 The judge declined to give it, concluding that the instruction was not warranted based on both the law and the facts of the case.19 The jury convicted the defendant on two indictments charging rape and one indictment charging indecent assault and battery on a person over the age of fourteen years.20 The defendant then sought and obtained direct appellate review from the Supreme Judicial Court.21
Whether the trial judge erred in refusing to give a mistake of fact instruction to the jury regarding consent?22
No. The defendant's theory at trial was that the victim actually consented, as he testified that she initiated intimate activity and never told him to stop.25 The victim, however, repeatedly said 'No, I don't want to do this' and resisted the defendant's advances by pulling away, pushing him, and trying to move away during the encounter in the woods on May 8, 1998.26 The evidence did not support a claim of confusion or mistake.27 It presented a direct credibility conflict between the victim's account of nonconsent and force and the defendant's claim of consent.28
The judge correctly concluded that the instruction was not warranted based on both the law and the facts.29
The trial judge did not err in refusing to give the mistake of fact instruction.30
Whether a defendant's honest and reasonable belief as to a complainant's consent should be recognized as a defense to the crime of rape?31
No. The facts established that the victim explicitly and repeatedly refused the defendant's advances, stating 'No, I don't want to' multiple times, and that the defendant used physical force to push her against a slate slab, pin her legs, and rape her twice, resulting in significant bruising and trauma as confirmed by medical evidence.34 The defendant's testimony that the encounter was consensual does not raise an issue of reasonable mistake but rather disputes the fact of consent itself.35 Recognizing the defense would be incompatible with the requirement that victims need not use force to resist.36 It would also conflict with the statutory elements that focus on the victim's lack of consent in fact rather than the defendant's state of mind.37
A defendant's honest and reasonable belief as to consent is not recognized as a defense to rape in Massachusetts.38