F 10.61

F 10.61 n1 Prior Sexual Intercourse: Conflict Between CJ 10.61 and CJ 10.61.1 / CJ 10.66.

CJ 10.61, CJ 10.61.1 and former CJ 10.66 (5th Edition) instruct the jury on the limited purpose for which previous sexual intercourse between the defendant and victim may be used. CJ 10.61 limits such evidence to the defendant’s “disposition or intent” while CJ 10.61.1 and former CJ 10.66 only allow the evidence to prove consent or good faith belief in consent. Each instruction tells the jury that “you must not consider the evidence for any other purpose.”

Therefore, when CJ 10.61 is given together with CJ 10.61.1 and/or former CJ 10.66 the instructions direct the jury to use the evidence for two distinctly separate purposes and, in each case, for no other purpose. Such a conflict is apt to confuse the jurors raising a danger that they will fail to consider the evidence for either purpose. (See People v. Parker UNPUBLISHED (6/10/91, F013203).) [A copy of the Parker opinion is available to FORECITE subscribers. Ask for Opinion Bank # O-162.] “Inconsistent instructions have frequently been held to constitute reversible error where it is impossible to tell which of the conflicting rules was followed by the jury.” (People v. Dail (43) 22 C2d 642, 653 [140 P2d 828].)

F 10.61 n2 “Engaged In” vs. “Committed.”

(See FORECITE F 2.23.1 n1.)

F 10.61a

Evidence Of Other Sexual Activity

With Same Victim To Show Actual Consent

Or Reasonable Belief In Consent

*Modify CJ 10.61 as follows [added language is capitalized; deleted language is between << >>]:

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.

If you believe this evidence, you should consider it only for the limited purpose of tending to show <<the disposition or intent of the defendant toward the other person>> THAT [____(ALLEGED VICTIM)____ CONSENTED TO THE ACT[S] OF ____(SEXUAL ACTIVITY)____ CHARGED IN THIS CASE] [,OR] [THE DEFENDANT HAD 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.

Points and Authorities

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 (82) 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 (97) 56 CA4th 703, 707 [65 CR2d 687]; Cf. People v. Belmontes (83) 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 (81) 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 (64) 61 C2d 529 [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, 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.

However, CJ 10.61 fails to inform a jury of this crucial principle. Worse yet, it forbids a jury to consider prior consensual sex acts in determining anything other than “the disposition or intent of the defendant toward the other person.” In other words, it forbids the jury to consider such prior acts in determining if the complaining witness consented to the charged act(s), and/or if the defendant reasonably believed she did. (Compare CJ 10.61.1 [prior consensual sexual intercourse may be considered on issue of actual consent and/or reasonable belief in consent].)

Accordingly, any 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. CJ 10.61 should, therefore, be modified as set forth above. [See Brief Bank # B-776 for additional briefing on this issue.]

Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII(C).]

NOTE: CJ 10.61 presently is in itself unclear (“tending to show the disposition or intent of the defendant toward the other person”) which is further reason for modifying the instruction.

[See Opinion Bank # O-264 for an unpublished opinion reversing for giving CJ 10.61 without modification.]