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VOLUME 7 - CHAPTER 101
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101 Table of Contents
101.4 Sex Crimes, Children
101.4.2 Sex Crimes, Children: Miscellaneous Issues
101.4.2.1 Continuous Sexual Abuse: Due Process Constitutional Challenge
101.4.2.2 Lewd Act With Child: Requirement Of Physical Force
101.4.2.3 Lewd Act With Child: Mistake of Age Defense Inapplicable
101.4.2.4 Lewd Act With Child: Child Abuse Expert -- Limiting Instruction
101.4.2.5 Lewd Act With Child: Repeat Offender Priors -- Stipulation Or Bifurcation
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VOLUME 7 - CHAPTER 101
101.4.2.1 Continuous Sexual Abuse: Due Process Constitutional Challenge
PRACTICE NOTE: A California Court of Appeal has held that lack of unanimity under the California continuous abuse statute does not violate due process. (People v. Higgins (CA 1992) 9 CA4th 294, 308 [11 CR2d 694]; see also People v. Whitham (CA 1995) 38 CA4th 1282, 1292 [45 CR2d 571].)
However, this issue has not yet been directly resolved by the U.S. Supreme Court and, hence, counsel should continue to preserve it in the lower courts. (See generally, FORECITE National™ Chapter 299 [Preserving Federal Constitutional Claims].)
RESEARCH NOTES:
See generally, FORECITE National™ 305.15.1 [Obscenity/Pornography].
See also generally, FORECITE National™ 305.19.2 [Sex Crimes].
FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
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VOLUME 7 - CHAPTER 101
101.4.2.2 Lewd Act With Child: Requirement Of Physical Force
PRACTICE NOTE: See People v. Babcock (CA 1993) 14 CA4th 383, 386-88 [17 CR2d 688], for a discussion of recent cases which conflict regarding what constitutes sufficient evidence of physical force.
RESEARCH NOTES:
See generally, FORECITE National™ 305.15.1 [Obscenity/Pornography].
See also generally, FORECITE National™ 305.19.2 [Sex Crimes].
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VOLUME 7 - CHAPTER 101
101.4.2.3 Lewd Act With Child: Mistake Of Age Defense Inapplicable
PRACTICE NOTE: Although a mistake-of-age defense has been allowed with respect to a charge of statutory rape (unlawful sexual intercourse), the courts have generally declined to recognize such a defense in the context of lewd and lascivious conduct. (See e.g., In re Donald R. (CA 1993) 14 CA4th 1627, 1629 [18 CR2d 442]; People v. Olsen (CA 1984) 36 C3d 638, 647 [205 CR 492]; see also Collins v. State (MS 1997) 691 So2d 918, 924 [in a forcible rape case involving a child under the age of fourteen the "mistake of age" defense is even less appropriate]; State v. White (MS 1990) 464 NW2d 585, 588.)
See also FORECITE National™ 93.1.2.3 [Kidnapping: Victim Under 14 -- Mistake Of Fact As To Age Not A Defense].
See also FORECITE National™ 101.2.3.1 [Statutory Rape/Unlawful Sexual Intercourse: Mistake Of Fact Regarding Victim's Age As Defense Theory].
RESEARCH NOTES:
See generally, FORECITE National™ 305.15.1 [Obscenity/Pornography].
See also generally, FORECITE National™ 305.19.2 [Sex Crimes].
FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
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VOLUME 7 - CHAPTER 101
101.4.2.4 Lewd Act With Child: Child Abuse Expert -- Limiting Instruction
RATIONALE: A child abuse expert presents a special problem. The evidence is admissible only for the purpose of explaining the behavior of the alleged victim. However, the jury is likely to consider the testimony as evidence that the molestation occurred. Hence, a limiting instruction may be appropriate.
POINTS AND AUTHORITIES: In People v. Gilbert (CA 1992) 5 CA4th 1372, 1386-87 [7 CR2d 660], the court rejected the defendant's argument that a "stronger" instruction should have been given while holding that the sample instruction (# 1, below) was "clear, accurate and sufficient."
In People v. Housley (CA 1992) 6 CA4th 947, 957-58 [8 CR2d 431], the Court held that the sample instruction (# 2, below) should be given sua sponte.
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.1; 7.4].
RESEARCH NOTES:
See also generally, FORECITE National™ 305.15.1 [Obscenity/Pornography].
See also generally, FORECITE National™ 305.5.8 [Expert Testimony/Scientific Evidence].
See also generally, FORECITE National™ 305.19.2 [Sex Crimes].
SAMPLE INSTRUCTION # 1:
The expert's testimony can be considered by you only for the purpose of understanding and explaining the behavior of [one or more of] the victim[s] in this case, and not as proof that the molestation occurred.
[Source: People v. Gilbert (CA 1992) 5 CA4th 1372, 1386 [7 CR2d 660].]
SAMPLE INSTRUCTION # 2:
The expert testimony is admissible solely for the purpose of showing the victim's reactions as demonstrated by the evidence are not inconsistent with having been molested. The expert's testimony is not intended and should not be used to determine whether the victim's molestation claim is true.
[Source: People v. Housley (CA 1992) 6 CA4th 947, 955 [8 CR2d 431].]
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101.4.2.5 Lewd Act With Child: Repeat Offender Priors -- Stipulation Or Bifurcation
See FORECITE National™ 39.2.4 Lewd Act With Child: Repeat Offender Priors May Be Admitted / Bifurcated].
RESEARCH NOTES:
See generally, FORECITE National™ 305.19.2 [Sex Crimes].