## Facts

- In Tokyo near midnight, two Japanese women left their workplace to use a nearby public latrine.
- Two U.S. servicemembers, including Private James Short, approached them; one woman fled and the other stumbled.
- The complainant testified Short pulled her into the latrine and fondled her despite her protests and lack of consent.
- Short claimed he believed the complainant was a prostitute, that they negotiated a price for sex, and that any touching was consensual.
- A shop manager came to the latrine after being alerted, heard the complainant say “no,” and saw Short holding her; police were summoned.
- Short was convicted by general court-martial of assault with intent to commit rape; on appeal he challenged the instruction on mistake of fact as to consent.

## Issues

1. Whether the military judge erred by refusing a defense-requested instruction requiring acquittal if the panel found Short subjectively believed the complainant consented, without requiring that belief to be reasonable.
2. Whether, for assault with intent to commit rape, a mistake of fact as to consent must be both honest and reasonable, or whether an honest but unreasonable belief can negate the specific intent.

## Decision

- The United States Court of Military Appeals affirmed the conviction and the sentence as modified by the board of review.
- The court held that mistake of fact as to consent for assault with intent to commit rape requires a belief that is both honest and reasonable.
- The military judge properly refused the defense instruction because it omitted the reasonableness requirement.
- The instructions given were sufficient because they allowed acquittal if the panel found an honest and reasonable mistake of fact regarding consent.

## Legal Principles

- A mistake-of-fact defense applies only when the accused’s belief in the mistaken facts is both subjectively honest and objectively reasonable.
- In assault with intent to commit rape, an honest but unreasonable belief in consent does not excuse liability or defeat the required intent.
- A trial judge may refuse a requested instruction that is legally incomplete, so long as the instructions as a whole correctly state the law and permit consideration of a properly framed defense.

## Conclusion

The court upheld Short’s conviction, ruling that mistake of fact as to consent in assault with intent to commit rape requires an honest and reasonable belief, and that an instruction allowing acquittal on a purely subjective belief standard is improper.


United States v. Short, 4 U.S.C.M.A. 437 (1954)