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The People v. Arvin Mackey, COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION THREE

2011 Cal. App. Unpub. LEXIS 741

Nature of the case:

Defendant was convicted of rape and forcible sexual penetration by a foreign object.

Facts and Issues on Appeal:

Defendant approached the victim on her way to school. He waved from his vehicle and asked her name and age. She told him her name and revealed that she was fifteen. Defendant then asked for her phone number. The victim initially refused, then gave him a fake number. Defendant then asked the victim to accept a ride to school. When she refused he exposed his handgun and physically forced her into the car. He said he would take the victim to school but he needed to stop for gas. The victim was told to give him money to do so. Afterward she was forced to touch his penis. He then took her to a house where he raped her, forcibly penetrated her with his fingers, and forced his penis in her mouth. He then drove the victim to a location near her school. The victim phoned her mother and was taken to the hospital where she reported the crime to a nurse and then a police officer.

The defendant's conversation with police contradicted his statements at trial. He stated that he did not have sex with the victim and that he did not know she was in high school. At trial however he said that he had picked her up on her way to school and he had assumed she was eighteen. He testified that the victim consented.

The defendant asked the court to instruct the jury that his mistake regarding the victim's consent should be measured "from the standpoint of a person with a mental disability." The court declined to give the requested instruction. Defense counsel argued in closing that "the victim consented to the sexual encounter and that she fabricated the criminal charges to avoid being disciplined when her mother learned she had not been to school."

The defendant was convicted. On appeal he argued that the court's refusal to give the requested instruction on his perception of the victim's age and consent was error. The appellate court disagreed, reasoning as follows;

Ruling & Rationale:

The reasonable person standard is an objective test that cannot be changed to suit the subjective demands of every defendant. Whether a person makes a "reasonable" mistake about a victim's age or consent should not be judged by the idiosyncrasies of a particular defendant.

Moreover, although the defendant had an I.Q. of someone who was described as "mildly mentally retarded", evidence substantially contradicted his claims that he believed she consented and was over the age of consent.

Further, the defendant made no argument of his mental state at trial so his mental retardation defense was suspicious as it was raised for the first time on appeal.

Editorial Comment

This is yet another appellate decision discussing "mistake" defenses, though it should be noted that the majority of states are moving away from ANY tolerance for the idea that a perpetrator's alleged "mistake" should have any weight whatsoever at trial - especially in cases involving minor victims. Adults should bear the burden of knowing with certainty that a person is old enough to engage in sexual activities. Any weight assigned the "mistake" of an adult necessarily exposes vulnerable children to increased risk of harm. It also places child victims of sex trafficking at increased risk of violence because it diminishes the effectiveness of legal protection. The trend in most states is away from tolerating "mistake" defenses, and this Court should have recognized as much.

Submitted By: Lauren Munighan -- Law Student


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