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72 U. Colo. L. Rev. 507 (2001)
Rape, Murder, and Formalism: What Happens if We Define Mistake of Law

handle is hein.journals/ucollr72 and id is 533 raw text is: UNIVERSITY OF COLORADO LAW REVIEW Volume 72, Number 3 2001 RAPE, MURDER, AND FORMALISM: WHAT HAPPENS IF WE DEFINE MISTAKE OF LAW? GERALD LEONARD* For more than a generation now, first-year law students have confronted the shocking facts of Regina v. Morgan,' in which a husband orchestrated the gang rape of his own wife. According to some of the attackers, the husband invited them home to have sex with his wife, assuring them that any strug- gle on her part would only constitute her kinky way of enjoy- ing the proceedings. In the event, she did indeed struggle pro- digiously but was overpowered by her husband and his comrades. Needless to say, the resistance that these men en- countered constituted the wife's violent opposition to the at- tack, not pleasure or consent. At their trial, the defendants raised a mistake-of-fact de- fense, arguing that, even if she did not consent, at least they thought she had and so they never intended to rape her. More importantly for the study of criminal law doctrine, they claimed that even a grossly unreasonable mistake of fact should ex- culpate a rape defendant. Their trial judge disagreed, and their jury convicted them. The House of Lords, however, agreed with the defendants on appeal, holding that a rape con- viction could not stand where the defendants believed they had the woman's consent, no matter how unreasonable that belief. . Associate Professor, Boston University School of Law. I would like to thank Ken Simons for his generous help with this article. Thanks also to Larry Alexander, Hugh Baxter, Guyora Binder, Stan Fisher, Dan Kahan, Susan Koniak, David Ly- ons, David Seipp, Kate Silbaugh, Robert Weisberg, Peter Westen, and, for excel- lent research assistance, Skye Davis, Gueorgui Balaktchiev, and Steve Ehrenberg. 1. [1976] A.C. 182, 186, 195 (appeal taken from Stafford).