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 VOLUME 11 - CHAPTER 252
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252.6 Consent, Actual

    252.6.2 Consent: Sex Offenses

    252.6.2.1 Forcible Sex Offense: Consideration Of Consent On Issue Of Force Or Threats
    252.6.2.2 Evidence Of Other Sexual Activity With Same Victim To Show Actual Consent Or Reasonable Belief In Consent

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 VOLUME 11 - CHAPTER 252

RATIONALE: Evidence of consent, even if insufficient to affirmatively establish a defense, may still be considered as to whether the prosecution met its burden of proving the force, fear or threat elements of a forcible sex offense.

POINTS AND AUTHORITIES: Martin v. Ohio (1987) 480 US 228 [107 SCt 1098; 94 LEd2d 267] stated that: "[t]he instructions in this case could be clearer in this respect, but when read as a whole, we think they are adequate to convey to the jury that all the evidence, including the evidence going to self defense, must be considered in deciding whether there was a reasonable doubt about the sufficiency of the State's proof of the elements of the crime." (See also generally, Humanik v. Beyer (3d Cir. 1989) 871 F2d 432, 440-42; Flores v. Minnesota (8th Cir. 1990) 906 F2d 1300, 1302-03.)

    This concern is relevant in any jurisdiction which places the burden of proving an affirmative defense upon the defendant. In such jurisdictions, there is a danger that any instruction informing the jury that the defendant has the burden of proving the affirmative defense, may lead the jury to believe that if the defense is not proven the evidence relating to that defense should not be considered on the question of whether the prosecution met its burden of proving the underlying elements of the charge. (See e.g., CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 4.61, comment [Consent Defense To Sexual Abuse] p. 435 (Bar Association of the District of Columbia, 4th ed. 1993).) "[B]ecause evidence relating to consent is relevant to the question of force, a failure to instruct the jury in that regard, where requested, does violate due process." (Russell v. United States (DC 1997) 698 A2d 1007, 1008.)

    See also FORECITE National™ 250.5.2 [Even If Defendant's Burden As To A Defense Is Not Met, Jury Must Consider Factual Basis For The Defense As To Proof Of Elements].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1; 7.1].

RESEARCH NOTES:

See also generally, FORECITE National™ 305.3.10 [Consent].

    In determining whether the prosecution has proved beyond a reasonable doubt that the defendant used [force] [or] [a threat placing ________ <name of victim> in reasonable fear of death, bodily injury or kidnapping consider any evidence that ________ <name of victim> consented to ________ <conduct allegedly consented to>.

[See generally Martin v. Ohio (1987) 480 US 228 [107 SCt 1098; 94 LEd2d 267]; cf. CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 4.61 [Consent Defense To Sexual Abuse] ¶ 1, sent. 3 (Bar Association of the District of Columbia, 4th ed. 1993).]

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RATIONALE: Logically, the fact that the alleged victim consented to any form of sexual activity on a prior occasion, is relevant to the issue of whether he or she consented to the charged activity or whether the defendant had a reasonable belief in consent.

POINTS AND AUTHORITIES: Modern cases support the view that evidence of a rape complainant's prior sexual acts with the accused is admissible on the issue of whether she consented to sexual intercourse with the accused on the occasion in question. (See Annotation, Modern Status of Admissibility, in Forcible Rape Prosecution, of Complainant's Prior Sexual Acts, 94 ALR3d 257; see also State v. Neumann (WI 1993) 508 NW2d 54, 60, fn 5 ["prior consensual sexual activity between the defendant and the victim is considered admissible and relevant to the issue of whether the victim consented to the sexual conduct with which the defendant is charged"].)

    Logically the "sexual acts" to which this rule applies include consensual acts other than vaginal intercourse. (See e.g., Commonwealth v. Grieco (MA 1982) 436 NE2d 167 [prior consensual intercourse and oral copulation relevant to consent defense to charges of sodomy and assault with intent to commit rape].)

    For example, in California the effect of California Evidence Code § 1103 is to permit acts of prior consensual sexual activity in prosecutions for sodomy and oral copulation as well as rape. (See generally People v. Chandler (CA 1997) 56 CA4th 703, 707 [65 CR2d 687]; cf. People v. Belmontes (CA 1983) 34 C3d 335, 341 [193 CR 882] [noting that statute was amended to add applicability to sodomy and oral copulation].)

    This concept is further illustrated by People v. Peterson (CA 1981) 126 CA3d 396, 397 [178 CR 734]. In Peterson, the defendant was charged with having oral sex with a female under the age of 18. At trial, he testified he reasonably believed the female was over 18, and he requested an instruction on this good-faith-belief defense. (Ibid.; see People v. Hernandez (CA 1964) 61 C2d 529, 536 [39 CR 361].) The trial court refused the instruction, however. (Ibid.) The Fourth Appellate District reversed, stating as follows:

    We are unable to detect any valid distinction between unlawful sexual intercourse and oral copulation within the rationale of Hernandez based upon which orifice of the human body is used. The refusal to so instruct was prejudicial error. It not only deprived the defendant of a crucial defense, it deprived him of his only defense. (Ibid.)

    The soundness of the Peterson court's reasoning is difficult to deny. If a woman's prior consensual vaginal sex with a man is relevant to whether a charged act of such sex was rape, it is hard to see why the same is not true of prior consensual oral and/or vaginal sex in a forcible oral copulation case, for example. In both situations, the prior consensual sex may suggest, but does not prove, that the charged act was consensual and/or that the defendant reasonably and honestly believed it was.

    Accordingly, jury instructions on the issue of prior consensual sexuality activity of the alleged victim with the defendant should not be limited to sexual intercourse but should include any form of consensual sexual activity.

FEDERALIZATION: To federalize this request, click here.  [Constitutional Macro 2.3; 4.1; 7.1].

RESEARCH NOTES:

See also generally, FORECITE National™ 305.3.10 [Consent].

    Evidence has been introduced for the purpose of showing that the defendant and the alleged victim engaged consensually in _______ (type of sexual activity) on one or more occasions. 

    This evidence is to be considered for the limited purpose of considering whether [_________ (name of alleged victim)] consented to the act[s] of _______ (type of sexual activity) charged in this case] [or] [the defendant had a good faith reasonable belief that _______ (name of alleged victim) consented to the act of ________ (type of sexual activity)]. 

   Do not consider such evidence for any other purpose.

[See generally People v. Chandler (CA 1997) 56 CA4th 703, 707 [65 CR2d 687]; cf. CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 10.61 [Unlawful Sexual Crime–Evidence Of Other Sexual Activity With Same Victim] (West, 6th Ed. 1996).]