The Resurgence of Mens Rea: II — Honest but Unreasonable Mistake of Fact in Self Defense

It is now twenty-five years since the promulgation of the Model Penal Code, which provided that an honest, although unreasonable, mistake of fact would negate criminal liability. It is only ten years since the House of Lords, in a highly controversial decision, held similarly that an honest, although unreasonable, mistake of fact as to the female’s consent could negate a conviction for rape. Both of these developments, hailed as reinvigorating the criminal law's concern with the actual, subjective, state of mind of the offender, have been rebuffed, at least in part, since their promulgation.

This struggle over the effect of a mistake of fact on criminal liability, and the ongoing debate over whether such a mistake should meet minimum requirements of objective reasonability before being recognized as a defense, is the subject of this article. Like the first in this series of articles, it finds that the common law changed drastically in the nineteenth century. Prior to that time, the law allowed any mistake of fact to exculpate. Nineteenth century writers and courts, however, distorted or ignored the prior law, adopting the objective test which many states now follow. This development was most obvious in, but not limited to, self defense law, and parallels manslaughter doctrine development, and can be explained in large part by the nineteenth century's embrace of utilitarianism as the hallmark of criminal theory. As with the doctrine of manslaughter, the mid-twentieth century has seen a move toward discarding the utilitarian-based, objective, mistake of fact tests and a resurgence of the early notion of moral culpability as the irreducible minimum requirement for criminal liability. The case of Bernhard Goetz, the New York City subway shooter, epitomizes the struggle which the courts have faced in this area, and that decision may well prove to be crucial for the future of the mistake of fact defense.

Part I of this paper traces the history of the common law subjective mistake of doctrine prior to 1800. Part II shows the nineteenth century modification of this law. This section sets the blame for these modifications, unlike in the manslaughter-provocation area, at the door of the courts, not the writers. Part III reviews the recent revival of the "subjectivist bug" in the area of mistake of fact and focuses on the Goetz decision. Part IV examines retributivism and utilitarianism as they affect this particular debate and concludes that the subjective test is preferable to the objective rule courts embraced in the nineteenth century.