SERIES 1100 SEX OFFENSES
F 1194 Consent: Prior Sexual Intercourse (PC 1127d)
TABLE OF CONTENTS
F 1194.1 Titles And Identification Of Parties
F 1194.1 Inst 1 Consent: Prior Sexual Intercourse—Title
F 1194.1 Inst 2 Identification Of Prosecution And Defendant
F 1194.2 Consent: Prior Sexual Intercourse—Instructions
F 1194.2 Inst 1 Jurors Not Required To Decide; Limiting Instruction Should Be Stated In Positive Terms
F 1194.2 Inst 2 (a-c) Evidence Of Other Sexual Activity With Same Victim To Show Actual Consent Or Reasonable Belief In Consent
F 1194.2 Inst 3 Jurors Must Consider Relevant Evidence
F 1194.2 Inst 4 Consent: Prior Sodomy
F 1194 Notes
F 1194 Note 1 [Reserved]
F 1194 Note 2 Forcible Rape—Evidence Of Prior Consensual Sexual Acts With Defendant
Return to Series 1100 Table of Contents.
F 1194.1 Titles And Identification Of Parties
F 1194.1 Inst 1 Consent: Prior Sexual Intercourse—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 1194.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 1194.2 Consent: Prior Sexual Intercourse—Instructions
F 1194.2 Inst 1 Jurors Not Required To Decide; Limiting Instruction Should Be Stated In Positive Terms
*Modify CC 1194, sentence 2, as follows [added language is underlined; deleted language is stricken]:
You may Consider this evidence only to help you decide, if you can, (whether the alleged victim consented to the charged act[s]/ [and] whether the defendant reasonably and in good faith believed that ( ______________ <insert name of complaining witness>/Jane Doe/John Doe) consented to the charged act[s]).
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
“Consider This Evidence . . .”—See FORECITE F 1194.2 Inst 1.
State In Positive Terms—A limiting instruction should not be “phrased as a limitation on the use of . . . evidence.” [Emphasis in original.] (People v. Leever (1985) 173 CA3d 853, 865-66.)
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 7.1 [Right To Jury Consideration Of The Evidence]
In death penalty cases additional, federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 1194.2 Inst 2 (a-c) Evidence Of Other Sexual Activity With Same Victim To Show Actual Consent Or Reasonable Belief In Consent
Alternative a:
Evidence has been introduced for the purpose of showing that the defendant and the alleged victim engaged consensually in ___________ <sexual activity> on one or more occasions other than that charged in the case.
Consider this evidence in evaluating whether the prosecution has proven beyond a reasonable doubt that _______________ <name of alleged victim> did not consent to the ________ <sexual activity> charged in this case] [,or] [that the defendant did not have a good faith reasonable belief that ________ <alleged victim> consented to the act of ____________ <sexual activity>].
You must not consider that evidence for any other purpose.
Alternative b:
*Modify CC 1194 as follows [added language is underlined; deleted language is stricken]::
You have heard evidence that ( ____________ <insert name of complaining witness>/Jane Doe/John Doe) had engaged in consensual sexual intercourse ( ____________ <insert sex act, e.g., oral copulation>) with the defendant before the act that is charged in this case. You may consider this evidence only to help you decide (whether the alleged victim consented to the charged act[s]/ [and] whether the defendant reasonably and in good faith believed that (____________ <insert name of complaining witness>/Jane Doe/John Doe) consented to the charged act[s]). Do not consider this evidence for any other purpose.
Alternative c:
*Replace CC 1194 with the following:
Evidence has been introduced to show that the defendant and the alleged victim engaged in __________________ <sexual activity> on one or more occasions prior to the charge against the defendant in this case. This evidence may be considered as it relates to the questions of whether the alleged victim consented to the act of ____________ <sexual act> charged in this case, and/or whether the defendant had a good faith reasonable belief that the alleged victim consented to the charged act of ____________<sexual act>.
[Source: Case No. F031831, p. 10.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Prior Consensual Sex: Improper To Limit To Sexual Intercourse—Countless 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 [179 Wis.2d 687, 702 fn 5] [“generally, 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 (1982) 436 NE2d 167 [386 Mass 484] [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 EC 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 (1997) 56 CA4th 703, 707; Cf. People v. Belmontes (1983) 34 C3d 335, 341 [noting that statute was amended to add applicability to sodomy and oral copulation].)
This concept is further illustrated by People v. Peterson (1981) 126 CA3d 396, 397. 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 (1964) 61 C2d 529.) 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, as is its significance here. 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.
The CALCRIM Deficiency—CALCRIM 1194 fails to inform a jury of the above principle.
Accordingly, any jury instructions on the issue of prior consensual sexual activity of the alleged victim with the defendant should not be limited to sexual intercourse but should include any form of consensual sexual activity. CC 1194 should, therefore, be modified as set forth above. [See Brief Bank # B-776 for additional briefing on this issue.]
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 4.5 [Right To Present Evidence And Fair Opportunity To Defend]
In death penalty cases additional, federal claims should be added including, but not limited to, those in FORECITE CG 13.
[See Opinion Bank # O-264 for an unpublished opinion reversing for giving CJ 10.61 without modification.]
CALJIC NOTE: See FORECITE F 10.61a.
F 1194.2 Inst 3 Jurors Must Consider Relevant Evidence
*Modify CC 1194, sentence 2, as follows [added language is underlined; deleted language is stricken]:
You may Consider this evidence only to help you decide (whether the alleged victim consented to the charged act[s]/ [and] whether the defendant reasonably and in good faith believed that ( _________<insert name of complaining witness>/Jane Doe/John Doe) consented to the charged act[s]).
Points and Authorities
See FORECITE F 105.2 Inst 1.
F 1194.2 Inst 4 Consent: Prior Sodomy
*Modify CC 1194, sentence 1, as follows [added language is underlined; deleted language is stricken]:
You have heard evidence that ( ________ <insert name of complaining witness>/Jane Doe/John Doe) had engaged in consensual sexual intercourse sodomy with the defendant before the act that is charged in this case.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency – Even though PC 1127d does not expressly include sodomy equal protection should require the statute to apply to sodomy. (See, e.g., People v. Hofsheier (2006) 37 CA4th 1185.) Moreover, regardless of whether PC 1127d applies to sodomy “a criminal defendant is entitled, on request, to instructions that pinpoint the theory of the defense case.” (People v. Gutierrez (2002) 28 C4th 1083; 1142-43; see also PG III(A).)
Identification Of Parties – See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization – To preserve federal claims counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 1194 NOTES
F 1194 Note 1 [Reserved]
F 1194 Note 2 Forcible Rape—Evidence Of Prior Consensual Sexual Acts With Defendant
Where there is evidence of a good faith reasonable belief that the victim consented, the jury must be instructed to consider such evidence on the issue of consent. People v. Perez (1987) 194 CA3d 525, 528-30.
CALJIC NOTE: See FORECITE F 10.66a.
