Is Ignorance of Fact an Excuse Only for the Virtuous

Professor Yeager's thoughtful response to my essay has convinced me that there is indeed a connection worth noting between the mistake of law doctrine and the mistake of fact doctrine. Yeager suggests that my position on mistake of law reduces to the view that someone who would be guilty of a "lesser wrong" were things as he perceived them to be may be punished for the "greater wrong" that he actually commits a conception of mistake of fact that has provoked fierce denunciation from commentators. But I would in fact put things slightly differently: under both doctrines courts excuse a mistaken offender when, but only when, the offender's mistake negates the inference that he has failed to internalize society's moral norms. Regina v. Prince' is an excellent example. The "elopement" statute in that case made it a crime for a man to "take . . . any unmarried girl, being under the age of sixteen years, out of the possession and against the will of her father or mother."2 Against the background of the traditional moral norms that gave rise to the statute, the critical element was not the age of the female but the absence of consent from the parents; the statute was much more concerned with protecting the "possessory rights" of fathers, who historically had negotiated the betrothal of their daughters in exchange for various kinds of commercial, social, and political benefits,3 than it was with protecting teenage females from sexual predation.4 Thus, the court tells us, a man who took an unemanci-