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252.7 Consent, Mistaken Belief

    252.7.1 Forcible Sex Offense: Reasonable Belief In Consent (Mayberry)
    252.7.2 Mistaken Belief As To Consent -- Whether Belief Must Be Reasonable
    252.7.3 Mistaken Belief As To Consent -- Evidentiary Limitations
    252.7.4 Mistaken Belief As To Effectiveness Of Consent
    252.7.5 Battery: Reasonable Belief In Consent As To The Touching
    252.7.6 Robbery/Theft: Good Faith Belief In Consent
    252.7.7 Kidnapping: Mistaken Belief As To Consent (x-ref)
    252.7.8 Assault With Intent To Commit Rape Or Other Sex Crime: Good Faith Belief In Consent As Defense Theory

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    See generally FORECITE National™ 101.1.4 [Sex Crimes: Good Faith Belief In Consent As Defense Theory].

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    252.7.2    Mistaken Belief As To Consent -- Whether Belief Must Be Reasonable

RATIONALE: Without an explanatory instruction the jury will not know whether or not the defendant's belief in consent must be objectively reasonable.

POINTS AND AUTHORITIES: Some jurisdictions permit the defendant to rely upon subjective belief in consent provided that such belief is not recklessly held. (See e.g., PENNSYLVANIA SUGGESTED STANDARD CRIMINAL JURY INSTRUCTIONS, Pa. SSJI (crim) 15.3121A, note [Rape by Forcible Compulsion or by Threat of Same] p. 5 (Pennsylvania Bar Institute, PBI Press, 09/95); see also Ervin v. State (AK 1988) 761 P2d 124, 125-27; Commonwealth v. Carter (PA 1980) 418 A2d 537, 540 [rape of an incompetent requires at least that the defendant acted recklessly with regard to the victim’s mental incapacity].)

    Others require that the belief be objectively reasonable: "We agree, however, with the California courts that a defendant is entitled to a jury instruction that a defendant may not be convicted of this crime if the words or conduct of the complainant under all the circumstances would justify a reasonable belief that she had consented. We arrive at that result, however, not on the basis of our penal code provision relating to a mistake of fact, § 53a-6(a), which is applicable only to specific intent crimes, but on the ground that whether a complainant should be found to have consented depends upon how her behavior would have been viewed by a reasonable person under the surrounding circumstances." (State v. Smith (CT 1989) 554 A2d 713, 717; see also People v. Mayberry (CA 1975) 15 C3d 143, 155 [125 CR 745].)

    See also FORECITE National™ 252.7.8 [Assault With Intent To Commit Rape Or Other Sex Crime: Good Faith Belief In Consent As Defense Theory].

    See also FORECITE National™ 252.8.2 [Whether Mistake Of Fact Must Be Reasonable].

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

RESEARCH NOTES:

See generally, FORECITE National™ 305.3.10 [Consent].

    An honest, reasonable belief on the part of the defendant that _____________ (alleged victim) consented to the sexual act precludes a finding that the defendant had the required criminal intent.

    If after consideration of any evidence that the defendant reasonably believed _____________ (alleged victim) consented, together with all the other evidence, you have a reasonable doubt that the defendant had the required criminal intent, you must find [him] [her] not guilty. (alleged victim) consented, together with all the other evidence, you have a reasonable doubt that the defendant had the required criminal intent, you must find [him] [her] not guilty.

[See generally People v. Mayberry (CA 1975) 15 C3d 143, 155 [125 CR 745].]

    In the crime of _____________ (insert charged offense), criminal intent must exist at the time the [alleged] crime was committed.  There is no criminal intent if the crime was committed with a reasonable and good faith belief that the alleged victim voluntarily consented to engage in ______________ (charged offense). 

    If after a consideration of all of the evidence, any juror has a reasonable doubt that the defendant had criminal intent at the time of ______________ (alleged criminal act, e.g. sexual intercourse, oral copulation, etc.), you must vote to find the defendant not guilty of the crime. 

[Cf. CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 10.65 [Belief As To Consent–Forcible Rape–Unlawful Oral Copulation] (West, 6th Ed. 1996).]

    If you believe* from the evidence that the pattern of conduct between the complaining witness and the defendant was such that the defendant thought there was consent, then you must find the intercourse was consensual.

* But see FORECITE National™ 6.2.22 ["If you find..." Language Improperly Shifts Burden To Defendant].

[Source: Morse v. Commonwealth (VA 1994) 440 SE2d 145, 151; but see Clifton v. Commonwealth (VA 1996) 468 SE2d 155, 158 [prosecution not required to prove that defendant knew or should have known that intercourse was accomplished without the victim’s consent].]

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    252.7.3    Mistaken Belief As To Consent -- Evidentiary Limitations

PRACTICE NOTE:  See LaFave & Scott, Substantive Criminal Law (West, 1986) § 5.1, fn. 16 [noting that evidentiary limitations may be imposed on what evidence may be relied upon in forming the belief as to consent]; U.S. v. Saunders (4th Cir. 1991) 943 F2d 388, 392 [FRE 412(b)(1)(B) precludes basing belief of consent on victim’s past sexual experiences with third persons]; People v. Williams (CA 1992) 4 C4th 354, 362 [841 P2d 961] [there must be "substantial evidence of equivocal conduct that could be reasonably and in good faith relied upon to form a mistaken belief of consent"].

RESEARCH NOTES:

See generally, FORECITE National™ 305.3.10 [Consent].

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PRACTICE NOTE: "Where consent is ineffective because the consenting party is not authorized to give consent for the owner, for example, the same mistake defense should be available to a defendant when such ineffectiveness is neither manifest nor know to him. [Footnote omitted.] At very least, reasonable mistakes as to the effectiveness of consent should be permitted as a defense." (Robinson, Criminal Law Defenses (West, 1984) § 66(h) p. 319.)

    In other words, even if the consent was in fact ineffective, if the defendant reasonably believed it to be effective the defense should apply.

RESEARCH NOTES:

See generally, FORECITE National™ 305.3.10 [Consent].

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RATIONALE: A defense theory instruction may be necessary to assure the jury understands that a reasonable belief in consent can negate the criminal intent necessary for battery.

POINTS AND AUTHORITIES: People v. Sanchez (CA 1978) 83 CA3d Supp 1, 3 [147 CR 850] reaffirmed the principle set forth in People v. Mayberry (CA 1975) 15 C3d 143, 157, [125 CR 745] that the defendant is "only required to raise a reasonable doubt as to whether he had ... [ a reasonable and bona fide belief in consent]." [Emphasis by Sanchez court.] (Sanchez, 83 CA3d at Supp 4.)

    Accordingly, an instruction such as the sample below, which is patterned after the instruction applicable to rape (see FORECITE National™ 101.1.4 [Sex Crimes: Good Faith Belief In Consent As Defense Theory]), should be given when appropriate.

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

RESEARCH NOTES:

See generally, FORECITE National™ 305.3.10 [Consent].

    In the crime of battery, criminal intent must exist at the time of the commission of the ___________ [crime charged]. There is no criminal intent if the defendant had a reasonable and good faith belief that the other person voluntarily consented to the touching. Therefore, a reasonable and good faith belief that there was voluntary consent is a defense to such a charge.

    If after a consideration of all the evidence, you have a reasonable doubt that the defendant had criminal intent at the time of the touching, you must find [him] [her] not guilty of such crime.

[Source: FORECITE National™.]

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RATIONALE: Without a defense theory instruction the jury may not understand that the defendant's good faith belief in consent may negate the intent required for theft or larceny.

POINTS AND AUTHORITIES: It is well settled that the felonious intent required for theft and robbery may be negated by the defendant's good faith belief that it is the defendant's property. (See FORECITE National™ 252.5 [Claim Of Right].) A logical corollary to this principle is that the defendant's good faith belief that he/she had a legal right to the property, such as permission of the owner, also negates felonious intent. (See FORECITE National™ 103.1.3.4 [Theft/Larceny: Good Faith Belief In Consent]; see also People v. Navarro (CA 1979) 99 CA3d Supp 1, 5-11 [160 CR 692]; State v. Self (WA 1986) 713 P2d 142, 144 [person cannot be guilty of robbery in forcibly taking property from another if he does so under the good-faith belief that he is entitled to possession of the property].)

    Because the defendant has the right to pinpoint the theory of the defense (see FORECITE National™ 250.1 [Grounds For Instruction On Defense Theory]), it would be error to refuse, when appropriate, an instruction such as the one set forth below. (The instruction below was erroneously refused in Navarro (99 CA3d at Supp 3) and People v. Williams DEPUBLISHED (CA 1992) 9 CA4th 209 [11 CR2d 772].)

    See also FORECITE National™ 103.1.3.3 [Theft/Larceny: Consent As Defense Theory].

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

OPINION AVAILABLE: To read the Williams opinion, click here. [Opinion Bank # O-145].

RESEARCH NOTES:

See generally, FORECITE National™ 305.3.10 [Consent].

    If one takes personal property of another with the good faith belief that [he] [she] [has permission to take the property] [__________] [insert other legal claim], [he] [she] is not guilty of theft. This is the case even if such good faith belief is unreasonable. Unless the prosecution has proven beyond a reasonable doubt that the defendant did not believe [he] [she] had consent to take the property you may not convict the defendant of theft.

[See People v. Navarro (CA 1979) 99 CA3d Supp 1, 3 [160 CR 692].]

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    See FORECITE National™ 93.1.3.4 [Kidnapping: Mistaken Belief That Victim Consented].

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PRACTICE NOTE: "[T]he crime of assault with intent to rape clearly sets forth a mental element; the defendant's purpose in assaulting the woman must be rape. This purpose of intercourse against the woman's will cannot be present if the defendant believes -- even unreasonably -- that the woman is consenting. (This fundamental point has gone unrecognized even in some of the modern codes.)" (LaFave & Scott, Substantive Criminal Law § 5.1, p. 578 (West, 1986); see also People v. Witte (IL 1983) 449 NE2d 966, 971.)

    See also FORECITE National™ 252.7 [Consent, Mistaken Belief].

RESEARCH NOTES:

See generally, FORECITE National™ 305.3.10 [Consent].