A sexual assault occurred. Two were out drinking, and accused drove complainant home. Accused and victim has different accounts on the events that occurred. The accused argued that he believed the victim consented to sexual intercourse.
Did the trial judge err in failing to put before the jury a defence of mistaken belief in consent?
If there is some evidentiary facts that convey a sense of realty to a defence of mistake as to consent, the jury ought to be instructed about that defence = Air of Reality Test!!!!
At common law an honest belief in the existence of circumstances, which if true, would make the act for which the prisoner is indicted an innocent act have always been a good defence = honest but mistaken belief in consent.
Mistake of fact is a defence where it prevents an accused from having the mens rea, which the law requires for the very crime with which he is charged.
Defence should avail when there is an honest belief in consent, or an absence of knowledge that consent has been withheld.
The judge failed to inform the jury that belief in consent was a defence