Determined whether a judge in a rape case should instruct the jury that the defendant made a reasonable mistake as to whether or not the victim had, in fact, consented to sexual contact.
Defendant Kurt Fischer appealed his rape conviction on the grounds that the judge should have instructed the jury that the defendant made a reasonable mistake as to whether or not the victim had, in fact, consented to sexual contact. The victim and Fischer both testified at trial. Their testimony regarding the incident differed dramatically. The victim testified that after Fischer locked the door and pushed her onto the bed she struggled and repeatedly told him she did not want to engage in sex. Only after striking Fischer in the groin with her knee was she able to escape. Fischer admitted to engaging in sexual contact with the victim but claimed she responded positively to his advances. He testified that when the victim first said, "No," he responded, "No means yes." He continued the sexual act. When the victim again said, "No," he removed himself from her body. The defense attorney argued that Fischer relied on the victim’s alleged sexual aggressiveness during a prior encounter in assessing her consent.
Legal Momentum worked closely with the Women's Law Project to draft an amicus brief urging the Pennsylvania Supreme Court not to grant Fischer’s request to create a “mistake of fact as to consent” defense in acquaintance rape cases. Our brief argued that such an affirmative defense would reflect and perpetuate rape myths and stereotypes. In a substantial victory, the Pennsylvania Supreme Court upheld Fischer’s conviction and declined to create a special defense of mistake of fact as to consent. During oral argument, the justices’ questions made it clear that they understood that the victim said no. The Court referenced our amicus brief several times in its questioning.