In 1982, the Pennsylvania Superior Court decided Commonwealth v. Williams, wherein the court held that a defendant charged with rape or involuntary deviate sexual intercourse (IDSI) cannot use a mistake of fact defense as to the victim’s consent. The court relied on the reasoning that a defendant’s mens rea is not an element of either rape or IDSI. Section 302 of the Pennsylvania Crimes Code, however, requires that where the legislature has failed to expressly require a finding of mens rea in the text of the statute, at least recklessness must be imputed to each material element.

This Comment argues that both rape and IDSI require a finding of mens rea, and that both offenses must then be susceptible to a mistake of fact defense. This Comment will first examine the development and confusion persistent in Pennsylvania case law surrounding the relationship between “forcible compulsion” and non-consent—both elements of rape and IDSI. This Comment will then examine the problematic consequence of failure to make a mistake of fact defense available to defendants in light of the Pennsylvania courts’ controversial history of holdings and the resulting expansion of the “forcible compulsion” definition, as well as the plain mandate of Section 302. Finally, this Comment will present support from the Pennsylvania courts’ and the United States Supreme Court’s constitutional tradition of requiring a mens rea for a finding of guilt, particularly in serious offenses.



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