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101.4 Sex Crimes, Children

    101.4.3 Sex Crimes, Children: Defenses And Defense Theories

    101.4.3.1 Lewd Act With Child: Constructive Touching -- Defense Theory That Defendant Did Not Have The Required Intent
    101.4.3.2 Lewd Act With Child: Multiple Convictions -- Defense Theory That The Acts Were Not Distinct, Completed Acts
    101.4.3.3 Child Molestations By One Minor On Another: Lack Of Intent As Defense Theory
    101.4.3.4 Sexual Molestation: Lack Of Concurrence Of Sexual Contact And Intent As Defense Theory
    101.4.3.5 Multiple Acts Of Child Molestation: Juror Unanimity
    101.4.3.6 Continuous Sexual Abuse Of A Child -- Juror Unanimity Required As To Single Victim When Charges Include Multiple Victims
    101.4.3.7 Sex Crimes Against Children: Additional Defenses And Defense Theories
    101.4.3.8 Sexual Abuse Of Children: Defense Expert Regarding Problems With Children’s Claims Of Sexual Abuse -- Right To Present Defense
    101.4.3.9 Sexual Assault Of Child: Expert Testimony That Charge Is Inconsistent With The Defendant’s Character Traits

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    101.4.3.1    Lewd Act With Child: Constructive Touching -- Defense Theory That Defendant Did Not Have The Required Intent

PRACTICE NOTE: Where the prosecution proceeds upon the theory that the requisite touching was done by the child on his or her own person at the defendant's instigation then it is error to instruct the jury upon an accomplice theory absent evidence that the child had the requisite lewd intent. (People v. Pitts (CA 1990) 223 CA3d 606, 892-93 [273 CR 757].)

    Rather, the jury must be instructed that the defendant's liability is as a principal, predicated on the theory of constructive touching (see People v. Meacham (CA 1984) 152 CA3d 142, 152-54 [199 CR 586]) or use of the child as an innocent agent (instrumentality) by which the offense was committed (see People v. Austin (CA 1980) 111 CA3d 110, 114-15 [168 CR 401]; see also Pitts, 223 CA3d at 889-90.) To establish such a theory the prosecution must prove that the child touched his or her own person at the instigation of the defendant who had the required intent. (Meacham, 152 CA3d at 153.)

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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    101.4.3.2    Lewd Act With Child: Multiple Convictions -- Defense Theory That The Acts Were Not Distinct, Completed Acts

PRACTICE NOTE: The question of whether multiple convictions are permissible for distinct, undefined lewd acts during a single incident was decided by the California Supreme Court in People v. Scott (CA 1994) 9 C4th 331 [36 CR2d 627]. The court held that fondling activities are not necessarily indivisible from other sex crimes committed on the same occasion; each distinct act can result in a separate violation and is consistent with the manner in which violations are calculated under statutes prohibiting other sexual acts. Scott held that as long as each unlawful sexual act is completed, i.e., the perpetrator has stopped and resumed unlawful activity during a sexual assault, it may form the basis of a separate conviction. (Scott, 9 C4th at 345.)

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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    101.4.3.3    Child Molestations By One Minor On Another: Lack Of Intent As Defense Theory

PRACTICE NOTE: In re Jerry M. (CA 1997) 59 CA4th 289, 299 [69 CR2d 148] held that an 11-year old may be guilty of committing a lewd act on a child under 14 even if younger than the victim, so long as the 11-year old has the requisite intent and the act is not consensual. However, in determining requisite intent, including the intent for sexual arousal, the young age of the defendant will be a factor. To violate the statute the minor must understand the wrongfulness of the conduct and act with the requisite intent, which includes the intent to sexually arouse.

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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RATIONALE: When appropriate, an explanatory instruction may be needed to assure the jury understands that the sexual contact must concur with the required intent.

POINTS AND AUTHORITIES: Concurrence of actus reus and mens rea or intent is an essential element of all criminal liability. (See FORECITE National™ 43.5 [Requirement That Criminal Intent And Requisite Mental State Concur With Criminal Act].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.7].

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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    See FORECITE National™ 273.10.4 [Jury Unanimity: Child Molestation And Sexual Abuse].

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PRACTICE NOTE: When an accused is charged in a single count with sexual abuse of more than one child, he or she is charged with a separate punishable offense as to each child and the jury must unanimously agree as to each child. (See e.g., In re Sheridan (CA 1964) 230 CA2d 365, 372-74 [40 CR 894].) This same rule should apply to continuous sexual abuse. If the prosecution relies upon acts against multiple victims in a single continuous sexual abuse prosecution, then the jury must be required to unanimously agree upon a single victim.

    See also FORECITE National™ 273.6.4 [Jury Unanimity: Multiple Victims].

RESEARCH NOTES:

See generally, FORECITE National™ 305.15.1 [Obscenity/Pornography].

See also generally, FORECITE National™ 305.10.4 [Jury Unanimity].

See also generally, FORECITE National™ 305.19.2 [Sex Crimes].

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PRACTICE NOTE: The defenses and defense theories discussed in this chapter are offered to provide ideas which may be helpful in developing a defense strategy and are not intended to be a complete checklist. Depending on the jurisdiction and the factual circumstances, other theories may be available. (See generally FORECITE National™ Volume 11: Affirmative Defenses And Defense Theories (Ch. 250-264).) For example, in any given case defensive theories may be available as to one or more of the basic elements of criminal liability. (See generally FORECITE National™ Volume 5: Basic Elements Of A Criminal Allegation And Defenses Thereto (Ch. 43-62).)

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    101.4.3.8    Sexual Abuse Of Children: Defense Expert Regarding Problems With Children’s Claims Of Sexual Abuse -- Right To Present Defense

PRACTICE NOTE: The accused’s 6th Amendment right to present a defense may be implicated by excluding a defense expert’s rebuttal testimony about recantation by youthful sex abuse claimants and about techniques for interviewing children in sex abuse cases. (State v. St. George (WI 2002) 643 NW2d 777.) Where the defendant’s right to present his expert outweighs any interest the state has in excluding the testimony, the exclusion of the testimony implicates the defendant’s right to present a defense.

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PRACTICE NOTE: State v. Davis (WI 2002) 645 NW2d 913, held that the defense has the right to present expert testimony that a defendant accused of sex crimes lacks the psychological characteristics of a sex offender and is thus unlikely to have committed the charged crimes. Such evidence constitutes circumstantial evidence of the defendant’s innocence. (Ibid.)