What is the difference between consent and mistake of fact as to consent? Are they both potential defenses to sexual assault offenses?
“Consent” and “Mistake of Fact as to Consent” are two completely different defenses and one or both of them may be pertinent to your upcoming court-martial or court-martial appeal based on sexual assault charges. These are both affirmative defenses for Rape, Aggravated Sexual Assault, Aggravated Sexual Contact and Abusive Sexual Contact. The “consent” defense is probably self explanatory. It simply requires that you put on evidence in your defense showing that the alleged victim in your court-martial actually consented to whatever sexual contact you had with him or her. So in this instance, your defense would not be that the acts did not occur, but instead that both parties expressed a clear desire to participate in them. Proving “consent” may be difficult if the victim testifies at the court-martial that he or she did not consent to the acts. However, it is not impossible. Testimony from the accused, from other witnesses and/or other circumstantial evidence may be sufficient to prove consent at a court-martial. Mistake of Fact as to Consent is a defense which states that an accused had a mistaken but reasonable belief that the alleged victim was consenting to the sexual acts in question. This defense hinges on the word “reasonable.” It is not enough to prove that an accused believed the acts were consensual, but that the belief was reasonable under the circumstances. There are many forms of evidence that can be presented to support this defense. Knowing whether these defenses pertain to your particular court-martial or appeal requires experience. I have that experience. Call me now and I will discuss your case with you for free. I will give you candid advice. To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.