Mental incapacity

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A really concerning factor that can lower the bar for applying the ‘mistake of fact’ defence is the mental incapacity of either the defendant or the complainant, or both. As with intoxication, mental incapacity on the part of either party (let alone both) tends to favour the defendant. The defendant’s mental incapacity can lower the bar for the defence by making his mistake more likely to be considered honest and reasonable. However, the complainant’s mental incapacity also lowers the bar by enabling the defendant to contend that he misunderstood her resistance. As with intoxication, this argument can be successfully made even where the complainant’s incapacity is such as to cast doubt on her ability to consent in the first place.

There are special provisions in our legal system so that defendants who do not have the cognitive capacity of an adult are not tried like other adults. Judges also have a large amount of discretion for when sentencing someone with a different mental capacity, so they are not punished excessively given their difference. The ‘mistake of fact’ defence is not the right way to try to accommodate people’s differences in doing justice.


R v Mrzljak

This case is relevant to both the language barrier category and the mental incapacity category. It was an appeal against conviction for two counts of rape, one vaginal and one oral, both with the defendant’s penis. The defence position at trial was that the defendant’s mental incapacity rendered him unable to recognise the complainant’s protests as a lack of consent. The complainant’s evidence was that she told him to “stop” and said “no” and tried to push him away, but when he asked her to take her clothes off and touch his penis, she complied. A psychologist at trial gave evidence for the prosecution that the complainant had an intellectual disability, giving her a mental age of between six and ten years. The defendant, a Bosnian immigrant, gave evidence that he did not know of the complainant’s impairment, and that she was physically responding positively to his advances. 

There were alternative verdicts open to the jury to decide if the complainant was legally unable to consent due to her mental state, or if she was technically capable of giving consent but on the facts at trial she did not. The Court of Appeal had received information to consider at the appeal that the defendant had a “mild mental retardation” himself, which would affect his belief that the complainant was consenting. McMurdo P remarked that “[b]ecause of his natural mental infirmity and his language difficulties, he was unable to pick up the social cues to allow him to make a rational judgment as to whether she had the cognitive capacity to consent.” However, as in R v Dunrobin (discussed below) the evidence suggests that the complainant was not merely relying on subtle “social cues” that needed “detecting” in order to repel the defendant’s advances, but was rather physically and vocally protesting. 

Holmes J identified two options available to the jury: that the defendant was mistaken as to the complainant’s ability to consent, or that the defendant was mistaken as to the complainant’s actual consent. Her Honour continued: 

“But the question here is whether the section provides an excuse from criminal responsibility where the mistaken belief is one which is honest and which would have been held by a reasonable person; or whether it applies where the mistake is honest and the belief is one held by the accused on reasonable grounds. It is clear that a requirement that a belief be on reasonable grounds does not equate to a requirement that a reasonable person would have held it. … What must be considered, in my view, is the reasonableness of an accused’s belief based on the circumstances as he perceived them to be.”

It therefore appears that the mental incapacity of a defendant may affect both the honesty of his belief and its reasonableness, making it potentially extremely difficult for a complainant to ever “fight back enough” to overcome the availability of the defence. 

The full judgment of R v Mrzljak is available here.


R v Dunrobin

The facts of Dunrobin have been outlined previously in ‘the freeze’ category: the complainant awoke to the defendant initiating sex, to which she said “no” repeatedly and tried to push him away, but the defendant then proceeded to initiate intercourse. In cross-examination the complainant agreed that she “froze” at some point, and the defence case at trial was that the defendant “misinterpreted” her consent, continuing to ask “until he feels there was a yes response”. Muir J said “[t]he jury should have been instructed also that the appellant’s mental condition was relevant to the appreciation of what, on his part, constituted a reasonable belief.” The defendant had been diagnosed with chronic paranoid schizophrenia and was the subject of an involuntary treatment order resulting in him being on anti-psychotic medications. His treating psychiatrist gave evidence that he had “difficulty understanding grey areas” and that “complex decision making would be hard for him.”

Lyons J remarked that the trial judge should have directed the jury on how specifically to apply the defendant’s “black and white” thinking to the complainant’s “freeze” response, seeming to disregard the jury’s acceptance of the complainant’s evidence that she both physically and verbally tried to stop the defendant at the beginning of their interactions.

Interestingly, Fryberg J recommended that “some reconsideration should be given to the reformulation of the direction” on ‘mistake of fact’ specifically with regards to the separation of the elements of subjectivity and objectivity. This comment seems to recognise the potential (if not the likelihood) that factors permitted to be considered in relation to the honesty of a belief (such as the defendant’s intoxication or lack of mental capacity) may come to be incorrectly considered by the jury in relation to the belief’s reasonableness (or, indeed, simply as part of a holistic assessment of whether the defence should be applied on the facts).

The full judgment of R v Dunrobin is available here