United States v. Short

Two American servicemen in Tokyo encountered two Japanese girls in the street shortly before midnight. The girls had left the shop where they worked to throw away paper in a nearby public latrine, but the servicemen thought the girls were prostitutes, who were known to frequent the area. As they approached the girls from behind, the men spoke to them in English. One of the girls realized the men were drunk and was frightened, called out to run, and ran back to the shop, but the other girl tripped. Private James Short (defendant) caught the second girl under her arm as she regained her balance, and he propositioned her in English. Their accounts of what happened next diverged from that point. The girl said that despite learning some English in school, she did not understand what Short said except for mentioning yen, and that Short pulled her into the latrine and began fondling her despite her protests. Short said they negotiated a price of 500 yen, and then the girl showed him the latrine, took him inside, and helped him try to have sex with her. Meanwhile, her companion reported the incident to the shop manager, who went immediately to the latrine. He heard the girl say “no” and saw Short holding her. But just then, the other private tapped the manager on the shoulder, and the manager did not try to interfere further. Instead, the manager summoned the Japanese police. When police arrived, Short thought they wanted to arrest the girl for prostitution, and Short told them that it was all right, claiming he wanted to protect her. Short was court-martialed for assault with intent to commit rape, and he wanted to present a mistake-of-fact defense. Short asked the judge to instruct the jury that it could not convict if it found that Short, because he mistook the facts, subjectively believed that the girl had consented to sex with him. The requested instruction did not specify that his belief also had to be honest and reasonable. The judge refused to give the instruction, and Short was convicted. After the review board affirmed, Short appealed, arguing the judge should have given the requested instruction.