Commonwealth v. Lopez

Facts

On May 8, 1998, Lopez met a seventeen year old girl who lived in a foster home in Springfield. He offered to walk with her, and later he waited outside a restaurant where she had met her mother and offered to walk her home. The two walked to a park across the street from her foster home, and he suggested a walk in the woods. Deep in the woods she said she wanted to go home, but he told her to trust him and led her to a secluded area. There he said he wanted a relationship, grabbed her wrist and kissed her. She said repeatedly that she did not want to do this. He then pushed her against a slate slab, pulled down her pants, pinned her legs with his, put on a condom and raped her. When she made a jerking move, he turned her around, pushed her face into the slate and raped her again. A doctor found significant bruising to her knees and swelling and trauma in the vaginal area. She told her foster mother, who called 911. Lopez testified that she was a willing and active partner in consensual intercourse and never told him to stop. Defense counsel asked for a mistake of fact instruction on consent. The judge refused.

Issues

1. Was Lopez entitled to a jury instruction that an honest and reasonable belief that the victim consented is a defense to rape under G. L. c. 265, § 22?
2. Should the court recognize a defendant's honest and reasonable belief as to a complainant's consent as a defense to rape in all cases?

Holding

On this record, Lopez was not entitled to a mistake of fact instruction. The rape statute does not make the defendant's knowledge of nonconsent an element, so his belief about consent is not relevant. The court left open whether such a defense might be appropriate where the evidence arguably supports a reasonable mistake.