People v. Bush

Judge BRIGGS

specially concurring.

I concur in the majority’s analysis and its conclusion that, in the circumstances presented here, the trial court did not err in refusing defendant’s tendered instructions on consent and mistake of fact as affirmative defenses.

I write separately to address the confusion inherent in ever treating either consent or mistake of fact as an affirmative defense when invoked merely to negate an element of the crime charged.

An affirmative defense basically admits the doing of the act charged but seeks to justify, excuse, or mitigate its commission. People v.…