Leigh Buchanan Bienen: Works

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Title: Mistakes
: Leigh Bienen
Publisher: Philosophy & Public Affairs
Issue: Volume 7, No. 3, pp. 224-245
Description: In response to Professor Curley’s interesting article on D.P.P. v. Morgan which appeared in a previous issue of Philosophy & Public Affairs, I shall discuss some recent developments concerning the mistake-of-fact defense in rape cases in the United States. Morgan was decided during April of I975 by the highest court of appeal in Britain, the Law Lords, a court whose opinions are not precedent for any United States jurisdiction. Six months after Morgan, and after considerable public discussion of Morgan in the United States, the California Supreme Court decided People v. Mayberry. This opinion resembles Morgan so closely in its legal theory that it seems reasonable to assume the California Court was at least aware of the British opinion, even though it does not cite Morgan. The California court based its unanimous holding exclusively upon state law, although in its own precedents in this area it has frequently argued on the basis of British authority. The principal case relied on in Morgan has been cited by the California Supreme Court in the two cases which are the foundation for the rule in Mayberry. So there is some reason to think that the timing of Morgan and Mayberry is not simply a coincidence.

The rule recognized in California is different from the rule in Morgan, but Morgan and Mayberry are twins. Both cases recognize for the first time in their jurisdictions a defense to rape based upon the defendant’s mistaken belief in consent. The two cases provide an interesting illustration of how decisions which are closely related in doctrine can have markedly different results. In People v. Mayberry a unanimous California Supreme Court held as a matter of law that a trial court’s refusal of a request for a jury instruction regarding reasonable mistake of fact as to consent was a prejudicial error. The error required the reversal of convictions for rape and kidnapping. And a new jury instruction based on Mayberry is now mandated in all cases of rape and kidnapping in California. The holding in Mayberry is not, therefore, identical with the holding in Morgan, which recognized the possibility of a defense based upon an unreasonable mistake of fact as to consent. Mayberry holds that in every case of rape the jury must specifically reject the defense of a reasonable mistake of fact as to consent. Omission of the Mayberry instruction in a rape case in California will form the basis for a reversal of the conviction on appeal as a matter of law.

The following set of facts was testified to by the victim at the preliminary hearing in Mayberry



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