The criminal intent element required for rape in most jurisdictions is the general intent or knowingly to perform the rape criminal act. 1 This may include the intent to use force to accomplish the objective if the state’s rape statute includes force or threat of force as a component of the criminal act.
As The Elements of a Crime stated, occasionally, a different criminal intent supports the other elements of an offense. In some states, negligent intent supports the rape attendant circumstance of lack of victim consent. This creates a viable mistake of fact defense if the defendant has an incorrect perception as to the victim’s consent. To be successful with this defense, the facts must indicate that the defendant honestly and reasonably believed that the victim consented to the rape criminal act. 2 Many jurisdictions expressly disallow the defense, requiring strict liability intent for the lack of consent attendant circumstance. 3
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