Does this detail of the Michelle Hadley case count as consent?

Question

I've learned about the Michelle Hadley case in California. Basically, Michelle's ex and his New Wife (NW) had a convoluted scheme where they impersonated Michelle impersonating NW inviting men to come over and rape NW as a form of BDSM role play. This was so they could accuse Michelle of harassment.

Now, every alleged instance someone took that offer was a hoax, but I was left wondering. Suppose that some man took that invitation in good faith. Suppose also that they could prove the existence of said good faith in court. Could this man then rely on the fact that the invitation did in the end come from NW herself to get out of a rape charge?

Answer 1

Under californiaPenal Code § 261:

Rape is an act of sexual intercourse accomplished under any of the following circumstances: ... If it is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.

Based on the plain language of the statute, there seems to be no reason a prosecutor could not bring charges against someone if Ms. Hadley were to report a rape under these circumstances.

However, the defendant would likely have a viable Mayberry defense:

In People v. Mayberry, this court held that a defendant's reasonable and good faith mistake of fact regarding a person's consent to sexual intercourse is a defense to rape. ... The Mayberry defense has two components, one subjective, and one objective.

The subjective component asks whether the defendant honestly and in good faith, albeit mistakenly, believed that the victim consented to sexual intercourse. In order to satisfy this component, a defendant must adduce evidence of the victim's equivocal conduct on the basis of which he erroneously believed there was consent.

In addition, the defendant must satisfy the objective component, which asks whether the defendant's mistake regarding consent was reasonable under the circumstances. Thus, regardless of how strongly a defendant may subjectively believe a person has consented to sexual intercourse, that belief must be formed under circumstances society will tolerate as reasonable.

People v. Williams 4 Cal.4th 354 (1992).

In the Hadley case, an accused rapist might successfully make out a Mayberry defense by arguing:

1. That the messages constituted sufficiently "equivocal" conduct that they truly led him to believe he had consent.

2. That all the other relevant circumstances made it reasonable for him to believe he had consent.

Note, though, that this is a fact-intensive inquiry left to the jury's discretion. Even if the defendant raises the argument and presents all the evidence we've discussed, a jury that doesn't believe it is still free to convict him.

Answer 2

canada

Summary

There is consent only if NW actually wanted the sexual touching.

It is also unlikely that the defence of "honest but mistaken belief in communicated consent" is available, but the scenario is under-specified to make that determination.

The elements of sexual assault

To prove an offence, the Crown (prosecution) must establish both the actus reus and mens rea of the offence.

The actus reus of sexual assault is that:

• there is sexual touching;
• there is no consent to that specific sexual touching in the mind of the complainant.

Criminal Code, s. 273.1:

Subject to subsection (2) and subsection 265(3), consent means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.

Consent for the purpose of sexual assault is only the subjective consent by the complainant. "For the purposes of the actus reus 'consent' means that the complainant in her mind wanted the sexual touching to take place" (R. v. Ewanchuk, [1999] 1 SCR 330).

A prank phone call is not consent. Impersonating someone impersonating oneself is not consent. Inviting someone over to play out a sexual assault fantasy is not consent. Only ongoing subjective consent in the mind of the complainant at the time of the act is consent.

A person can remove consent at any point in the activity.

"The mens rea is the intention to touch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched" (R. v. Ewanchuk, [1999] 1 S.C.R. 330).

A defence: mistaken belief in communicated consent

As part of defending against a charge of sexual assault, an accused may argue that they were under a mistaken belief in communicated consent. This is available when the defendant: (1) has taken reasonable steps to ascertain consent; and, (2) has the honest belief that the complainant actually communicated consent.

This is analogous to California's Mayberry defence presented in bdb484's answer, but the Canadian defence is premised on reasonable steps taken by the accused.

Application: the hypothetical is underspecified

There is not enough information to know whether the actus reus of sexual assault is made out. You would have to stipulate whether the complainant subjectively wanted, in her mind, the touching to take place or not, at the time of the touching. If she wanted it, then there is no sexual assault. If she did not want it, then the analysis proceeds to the accused's awareness of that lack of consent.

The accused's "good faith" that you stipulate (I take this to mean an honest belief in communicated consent) is only relevant if they first establish that they took reasonable steps to ascertain consent.

But, there is not enough information to assess whether the defence of "mistaken belief in communicated consent" is available. We would have to know what steps the accused took to ascertain that the complainant was consenting throughout the encounter. In the case of a sexual assault / non-consent role-play, these steps would have to go quite far in order to be reasonable:

• "an accused’s belief in consent must be grounded in the complainant’s communications of consent at the relevant time to the particular sexual activity in question" (R. v. Gairdner, 2017 BCCA 42, para. 17);
• "a party may not give advance consent to a suite of activities that would leave the complainant 'vulnerable to new and varied assaults'": (R. v. Gairdner, 2017 BCCA 425, para. 24);
• "Once a complainant says 'No', an accused must ensure the complainant has changed her mind before proceeding" (R. v Sweet, 2018 BCSC 1696, para 138);
• it is likely that reasonable steps requires an in-depth in-person discussion confirming consent to a role-play in which no means yes, including discussion and practice of the use of a safe-word to communicate non-consent (R. v. Sweet).

Answer 3

united-states

Questions of intent, such as intent to have sex with someone without their consent, are evaluated from the perspective of the criminal defendant. This is not evaluated from a "God's eye" perspective.

If the intent was based upon an understanding of the facts that arose from fraud upon the criminal defendant, for example, if the defendant believed that there was not consent, when in fact, there was consent, the defendant might be guilty of attempted sexual assault, rather than actual sexual assault. This is because the criminal defendant intended to commit a crime and took positive steps towards doing so, even though the crime may not have been actually committed.

(Entrapment is a concept that applies only when the situation is orchestrated by the government, but the analysis would be much more involved if the scheme were set up by a law enforcement agency than it is when it is set up by two private individuals conspiring together.)

Could this man then rely on the fact that the invitation did in the end come from NW herself to get out of a rape charge?

This would be a defense to the rape charge, but not to an attempted rape charge. Also, of course, an invitation to do something can't constitute irrevocable consent to doing that. Someone can change their mind about whether they are willing to consent at any time until the act has been done with their consent.