Criminal Law, Pages 376–381

Commonwealth v. Lopez

Supreme Judicial Court of Massachusetts, 2001
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The victim, a seventeen-year-old girl, met defendant while walking to a restaurant. Defendant left to make a call when they got there but was waiting outside for her afterwards. They walked to a park and then into the woods to avoid upsetting the victim's foster mother.

The victim claimed that she then told defendant she was not interested in starting a relationship at the time and that defendant kissed her and, when she pulled away, said that sex would make her love him more. He allegedly then fondled her, she pushed him away, and he then pinned her against a rock and raped her while she said no and cried. Afterwards, she allegedly jerked away, and defendant became angry, turned her around, slammed her into the rock, and raped her again.

The victim then went home and tearfully called 911. Her version of the story is supported by medical records showing significant bruising to her knees and excessive vaginal trauma.

In contrast, defendant said the victim willingly consented to the intercourse. Specifically, he claimed that she initiated the intimate activity and never told him to stop.

Procedural History:

The trial judge declined the defendant's mistake of fact instruction as to consent because the defendant claimed that the victim actually did consent, not that he mistook her willingness. Defendant was then convicted on two counts of rape and one count of indecent assault and battery.


Is mistake of fact as to consent a valid defense to rape?


The rape statute does not require the defendant to intend to have intercourse without consent. Rape in Massachusetts is a general intent crime; only the intercourse itself is required to be intended. There must be a lack of consent, but the defendant need not know of it.

Some states, like New Jersey, Alaska, and California, do require such a knowledge and allow a mistake of fact defense as to consent in rape cases. Yet as Massachusetts requires force or threat of force, this should negate any possible mistake of fact. The defense should therefore not be allowed, at least in this case.


No, mistake of fact as to consent is not a defense to rape in Massachusetts. Affirmed.