F 1.23.1 n2 Consent Defined: PC 261.6 Violates Due Process As Contrary To The Common Law.
[This argument was rejected in People v. Gonzalez (95) 33 CA4th 1440, 1442-43 [39 CR2d 778].]
CJ 1.23.1 is taken from PC 261.6. In relevant part, PC 261.6 provides that consent in a sex case “shall be defined to mean positive cooperation in act or attitude pursuant to an exercise of free will.” This definition violates the federal due process clause.
At the outset, it is essential to note that the rape, sodomy, oral copulation and penetration with a foreign object statutes all contain the element that the proscribed sex acts must be “against a person’s will” or “against the victim’s will.” (PC 261(a)(2); PC 286(c); PC 288a(d)(1) and PC 289(a).) However, pursuant to PC 261.6, the quoted elements are, in fact, defined as sex acts without the “positive cooperation in act or attitude” of the alleged victim. Clearly, this rewriting of the concept of consent is totally at odds with the principle of fairness which is inherent in the due process clause.
In this regard, the common law has always held that rape does not occur unless the sex act is against the person’s will. (People v. Barnes (86) 42 C3d 284, 297 [228 CR 228].) Or, stated more fundamentally, the law proscribing rape protects the victim against the “outrage” of being sexually violated. (People v. Vela (85) 172 CA3d 237, 243 [218 CR 161].)
Notwithstanding these traditional notions, PC 261.6 has drastically altered the nature of consent. Previously, society protected a victim against acts which were imposed on him or her contrary to his or her will. Now, the law provides that a person’s mere neutrality or ambiguity about a sex act can turn the act into a criminal violation (i.e. a person who neither resists nor exhibits “positive cooperation in act or attitude ….”). Lest this discussion seem more theoretical than real, the following hypothetical demonstrates the problem presented by California’s new definition of consent.
Assume that a wife and husband have been married for ten years. During this time, the wife has had no desire for sexual intercourse with her husband. However, on a regular basis, the husband has engaged in sexual intercourse with the wife. On these occasions, the wife has not protested. Moreover, the wife has always remained very stationary during the sex act. Although not expressed to her husband, the wife’s attitude about these events is that it is part of the marriage contract although she does not enjoy participating.
Clearly, under the common law, the wife has not been raped. While she did not enjoy the sex acts, she manifestly consented since the acts were not against her will (i.e. she believed that it was her duty to participate). However, under PC 261.6, the wife is a victim of rape. Insofar as she did not have a “positive attitude” about having sex and did not “positively cooperate” in the sex acts, the wife has been raped.
In light of the hypothetical, the question remains whether PC 261.6 passes muster under the federal constitution. Under the due process clause, a state is free to define the elements of crimes as it sees fit. (McMillan v. Pennsylvania (86) 477 US 79, 85 [91 LEd2d 67; 106 SCt 2411].) However, the Supreme Court has cautioned that “‘there are obviously constitutional limits beyond which the States may not go in this regard, …'” (Ibid.) Presumably, the limits set by the due process clause are those statutes which offend “‘some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” [Citation.]'” (Ibid.)
Applying the cited test, California’s definition of consent is completely out of step with traditional common law. In this regard, the 230 year old rule in Anglo-American law is that consent will not be found when the person’s “‘will has been overborne and his capacity for self-determination critically impaired, …'” (Schneckloth v. Bustamonte (73) 412 US 218, 225 [36 LEd2d 854, 862; 93 SCT 2041].) Under PC 261.6, this traditional rule has been cast aside as has been demonstrated in the hypothetical.
Moreover, it must be emphasized that the definition set forth in PC 261.6 cannot be squared with any rational notion of the nature of legal consent. For example, when a citizen consents to a police search of his or her property, is the consent given with a “positive attitude?” Usually not. Thus, it is simply unfair to a defendant to create a rarefied and non-traditional definition of consent when lack of consent is an element of a criminal offense. Thus, PC 261.6 defies our traditional notions of justice. (See Schad v. Arizona (91) 501 US 624 [115 LEd2d 555, 571; 111 SCt 2491] (plurality opn. of Souter, J.); “a freakish definition of the elements of a crime that finds no analogue in history or the criminal law of other jurisdictions will lighten the defendant’s burden” of showing a due process violation.) (See FORECITE F 1.23.1 n3 for related argument.)
(See FORECITE PG VII(C)(48).)
[Additional briefing discussing this issue is available to FORECITE subscribers. Ask for Brief Bank # B-618 and see Opinion Bank # O-178.] (See FORECITE F 1.23.1 n2 for related argument.)
F 1.23.1 n3 Consent Defined: PC 261.6 Violates Due Process As Irrebuttable Presumption.
[This argument was rejected in People v. Gonzalez (95) 33 CA4th 1440, 1444 [39 CR2d 778].]
Lack of consent is an element of the people’s case in any rape prosecution. The defendant need not prove consent. Whether the defendant testifies or stands silent, the prosecution must establish the victim’s nonconsent beyond a reasonable doubt along with all other elements of the corpus delicti. (People v. Key (84) 153 CA3d 888, 895 [203 CR 144]; People v. Degnen (25) 70 CA 567, 591 [234 P 129].) The definition of “consent” in PC 261.6 violates the federal constitution (14th Amendment) by relieving the prosecution of the burden of showing nonconsent where the victim passively assents but does not show “positive cooperation.” (See generally FORECITE PG VII(C).)
F 1.23.1a Prior “Dating” Relationship:
*Add the following after ¶ 2 of CJ 1.23.1:
A current or prior dating relationship does not by itself constitute consent. However, it is a circumstance which you should consider together with the other evidence in making a determination on the question of the consent.
Points and Authorities
If the “dating relationship” instruction is given (but see FORECITE F 1.23.1 n1), the statutory language should be modified to avoid any implication that the prior dating relationship may not be considered at all. That is, even though the prior relationship is not sufficient to establish consent, it is a factor which the jury should consider together with the other evidence to determine the question of consent. Moreover, such a modification is justified when consent based upon the prior relationship is relied upon as a theory of the defense. (See FORECITE PG III(A).)