## Facts

- Kurt Fischer, an eighteen-year-old Lafayette College freshman, was accused of sexually assaulting a fellow first-year student in his dorm room.
- Earlier the same evening, the two engaged in consensual intimate contact in Fischer’s room; the complainant described it as kissing and fondling, while Fischer described rough sexual activity initiated by the complainant.
- After separating and later returning together to Fischer’s room, the complainant testified Fischer locked the door, restrained her, forced oral sex, digitally penetrated her through torn jeans, ejaculated on her, and attempted anal penetration; she escaped after striking him.
- Fischer testified the second encounter was consensual and similar to the earlier encounter; he admitted holding her arms above her head but claimed he stopped when she said she did not want sex.
- Medical testimony and friends’ observations that the complainant appeared shaken and upset supported the prosecution’s account.
- A jury convicted Fischer of involuntary deviate sexual intercourse (IDSI), aggravated indecent assault, and related offenses, and he was sentenced to imprisonment.

## Issues

1. Whether Pennsylvania law recognizes a mistake-of-fact defense based on a defendant’s reasonable but mistaken belief that the complainant consented in prosecutions for forcible sexual offenses.
2. If not, whether trial counsel was ineffective for failing to request a jury instruction on reasonable mistake of fact as to consent.

## Decision

- The Superior Court of Pennsylvania affirmed the judgment of sentence.
- The court held Pennsylvania does not recognize a mistake-of-fact defense based on belief in consent in forcible sexual assault prosecutions.
- The court rejected attempts to distinguish precedent based on the parties’ prior consensual contact and their acquaintance relationship.
- The court rejected the argument that statutory language concerning “forcible compulsion” implied a reasonable-belief-in-consent defense.
- Because the requested instruction would have lacked legal support, trial counsel was not ineffective for failing to seek it.

## Legal Principles

- An ineffective-assistance claim fails where the underlying legal position (including a proposed jury instruction) lacks merit; counsel is not ineffective for omitting a futile request.
- In Pennsylvania forcible sexual offense cases, a defendant’s claimed reasonable mistake about the complainant’s consent is not a recognized defense where forcible compulsion is proven.
- Intermediate appellate courts apply controlling precedent and will not create new defenses absent legislative action or a higher court’s direction.

## Conclusion

The court affirmed Fischer’s convictions, concluding that Pennsylvania law does not permit acquittal in forcible sexual assault cases on the theory that the defendant reasonably but mistakenly believed the complainant consented, and therefore counsel was not ineffective for failing to request a mistake-of-fact instruction.


Commonwealth v. Fischer, 721 A.2d 1111 (Pa. Super. Ct. 1998)