Brief Bank # B-618
NOTE: The text of the footnotes appear at the end of the document.
PENAL CODE SECTION 261.6 VIOLATES DUE PROCESS BY CREATING A PRESUMPTION THAT A RAPE VICTIM HAS NOT CONSENTED UNLESS SHE POSITIVELY COOPERATES IN THE ACT OF SEXUAL INTERCOURSE
Penal Code section 261.6, enacted in 1982, defines “consent” as follows:
“In prosecutions under Section 261, 286, 288a, or 289, in which consent is at issue, ‘consent’ shall be defined to mean positive cooperation in act or attitude pursuant to an exercised free will. The person must act freely and voluntarily and have knowledge or the nature of the act or transaction involved.” [Footnote 1]
CALJIC No. 1.23.1 was drafted to conform to section 261.6 and was read to the jury in the present case. (RT 578.) According to the instruction, if there is no “positive cooperation in act or attitude pursuant to an exercise of free will,” there is no consent. This instruction ignores the possibility that the woman may passively assent to sexual intercourse, even though she does not show positive cooperation. In that situation, according to the instruction, the jury must presume that the woman did not consent, even though the sex act was not against her will. This presumption removes from the prosecution its burden to show that the intercourse was against the will of the victim. Accordingly, CALJIC No. 1.23.1 is an unconstitutional mandatory burden shifting instruction. It must be disapproved, and appellant’s conviction must be reversed.
A. Passive Assent Is A Defense To A Rape Charge
The law with respect to resistance and consent to unlawful sexual intercourse has shifted significantly in the past decade. The common law required that the female complainant demonstrate “utmost resistance” to the act of intercourse. In California, there was formerly a requirement that the rape victim “resists, but the person’s resistance if overcome by force of violence.” (Former Penal Code section 261, subd. (2).) This was held to require only such resistance as would reasonably manifest refusal to consent to the act of sexual intercourse. (People v. Hunt (1977) 72 Cal.App.3d 190, 194.) Nevertheless, some degree of resistance was required, and a feeble or equivocal resistance was deemed insufficient to sustain a rape charge. (See cases cited in People v. Barnes (1986) 42 Cal.3d 284, 297-298.)
This state of the law was justifiably criticized on the grounds that a terrorized woman might not physically resist at all, and that resistance itself often increases the woman’s risk of physical harm or death. (See Note, Recent Statutory Developments in the Definition of Forcible Rape (1975) 61 Va.L.Rev. 1500 and Comment, Towards a Consent Standard in the Law of Rape (1976) 43 Univ. Chi-L.Rev. 613.) Accordingly, in 1980 Section 261 was amended. (Stats, 1980, ch. 587.) All reference to resistance was deleted. Rape was defined simply as sexual intercourse “where it is accomplished against a person’s will by means of force or fear of immediate and unlawful bodily injury on the person of another.” (sub. 2.) (See People v. Barnes, supra, upholding the application of the amendment.)
Although consent was still recognized as a defense, there was initially no definition of consent specifically tailored for sex crimes. In 1982, the Legislature adopted Penal Code section 261.6, which defines consent as “positive cooperation in act or attitude pursuant to an exercise of free will.” (Stats. 1982, ch. 1111.) The section was adopted as part of a bill changing the definitions and penalties of certain sex crimes; there is no illumination of its purpose from the legislative history. (See v. Superior Court (1985) 163 Cal.App.3d 1224, 1230.) [Footnote 2] The apparent purpose, or at least the effect, of section 261.6 is to provide a definition of consent for use in all rape prosecutions. That definition picks up where the old “resistance” element left off; whatever is not consented to is deemed to be against the person’s will.
The error in the definition is that it denies the defendant the consent defense unless the victim shows “positive cooperation in act or attitude” in the act of sexual intercourse. However, rape as well as oral copulation and penetration with a foreign object, is only that sexual intercourse which is accomplished “against a person’s will.” (Section 261, subd. (2).) A person may engage in sexual intercourse willingly yet passively, and not display any sign of “positive cooperation”; the female may not kiss or hug the male, and yet she may invite and even welcome the act of intercourse. [Footnote 3] A jury which has a reasonable doubt whether the victim passively assented to an act of intercourse, which act was not against her will, should be instructed to acquit.
The critical nature of the “consent” definition is demonstrated by the definition of rape itself, embodied in CALJIC 10.00. Accordingly to that instruction, rape is intercourse which was committed “against the will of the female person” and by means of force, violence, or fear of immediate and unlawful bodily injury. The instruction specifically states that “‘against such person’s will’ means without the consent of the female person.” (Emphasis added.) The jury is thus referred immediately to the consent definition. If there is no consent, i.e., “positive cooperation,” then the act is deemed to be against the female person’s will.
Since the act may not be against the will of the female person, even though she shows no sign of “positive cooperation,” the definition from section 261.6 creates an irrebuttable resumption of guilt.
B. The Presumption Of Non-Consent Embodied In Section 261.6 Violates Due Process As Guaranteed By The Fourteenth Amendment To The United States Constitution
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. Kay (1984) 153 Cal.App.3d 888, 895; People v. Degnan (1925) 70 Cal-App. 567, 591.) The definition of “consent” in section 261.6 relieves the prosecution of the burden of showing nonconsent, where the victim passively assents but does not show “positive cooperation.”
The United States Supreme court has recently summarized the law with respect to conclusive or burden-shifting instructions in Carella v. California (1989) ___ U.S. ___ 109 S.Ct. 2419, 2420, 103 L.Ed.2d 218:
“The Due Process Clause of the Fourteenth Amendment denies States the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense. In re Winship, 397 U.S. 358, 364, 95 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). Jury instructions relieving States at this burden violate a defendant’s due process rights. See Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985); Sandstrom v. Montana, 442 U.S. 510, 99 S-Ct. 2450, 61 L.Ed.2d 39 (1979). Such directions subvert the presumption of innocence accorded to accused persons, and also invade the truth finding task assigned solely to juries in criminal cases.”
In the Carella decision it was held that California Vehicle Code section 10855 creates an unconstitutional mandatory presumption by presuming that a person who keeps a rental car over 20 days from the date of written demand by the owner necessarily does so with the intent to commit the theft. The prejudicial effect of the instruction was left to the lower court on remand. The concurring opinion in opinion in Carella, together with the plurality opinion in Connecticut v. Johnson (1983) 460 U.S. 73, would hold that a conclusive presumption of guilt contained in jury instructions would seldom be deemed harmless error unless the issue had been resolved against the defendant in another context. (109 S.Ct. at 2424.) [Footnote 4] As will be seen below, the conclusive presumption that a willing but passive participant in sexual intercourse has not given legal consent is reversible error in the present case.
C. In View Of All The Evidence, The Failure To Correctly Define Consent Is Reversible Error In The Present Case
The evidence presented by the prosecution is ambiguous on the issue of consent. Ms. K voluntarily went riding with appellant for several hours that night hoping that he would score some crank for her. She was very flirtatious with appellant, i.e., sitting on his lap, kissing him, and allowing him to fondle her breasts. Appellant repeatedly made sexual advances toward her which she ignored. (RT 150.) According to Ms. K, appellant threatened her with the gun but no other threat or abuse was reported. Ms. K claimed she begged appellant to stop but her recollection of the events was faulty given the amount of alcohol she consumed.
Perhaps more important is her conduct after the intercourse. Ms. K fell asleep after the alleged rape and when Ms. T and Mr. C returned with help she did not mention anything about the rape to either Mr. C or Ms. T. Before leaving appellant, she hugged him and agreed to meet appellant late– in the day to go horseback riding. Moreover, Ms. K did not report the incident until late the next day.
The total circumstances of the case may have suggested to the jury that Ms. K was threatened but later assented (without “positive cooperation”) to sexual intercourse with appellant. She made no fresh complaint, but decided the following day that she had been poorly treated and ultimately decided to call it rape. In People v. Vela (1985) 172 Cal.App.3d 237, 243, it was held that a woman may consent to sexual intercourse and then change her mind and withdraw her consent after penetration has occurred. In those circumstances, the defendant cannot be convicted of rape. (Ibid.)
By the same token, Ms. K may have been in a state of fear, or simply sick, at some point in the evening, but she may have assented to the intercourse later either out of desire or for some other reason not amounting to fear of bodily injury. If that was the case, then the jury should not have been instructed that there was no consent without “Positive Cooperation.” The erroneous presumption contributed to the verdict, and the conviction must now be reversed.
The statute was amended in 1990 to include a provision that a current or previous relationship shall not be sufficient to constitute consent and to state that nothing in this section shall affect the admissibility of evidence or the burden of proof.
There is speculation that section 261.6 was adopted as a response to the Supreme Court’s decision in People v. Mayberry (1975) 15 Cal.3d 143, which establishes a reasonable and good faith belief in consent as a defense to rape. See Review of 1982 Legislation (1983) 14 Pacific L. J. 357, 547. There may be some truth in this observation, but the section applies wherever consent (not merely belief in consent) is in issue. Consent is in issue in every rape prosecution, for lack of consent is an element of the prosecution case For this reason CALJIC 1.23.1 has become a standard instruction for all rape prosecutions, and is not linked to the Mayberry defense.
Conversely, the true rape victim may, because of terror, smile, even initiate acts, and may appear relaxed and calm, (People v. Barnes, supra, 42 Cal.3d at 299, quoting Symonds, The Rape Victim: Psychological Patterns of Response (1976) 36 Am. J. Psychoanalysis 27, 30.)
As pointed out by Justice Scalia’s concurring opinion in Carella, the Supreme Court has not precisely determined the standard of review in these circumstances despite numerous recent decisions in the area. (But see People v. Odle (1988) 45 Cal.3d 386, 415, and People v. Joiner (1988) 204 Cal.App.3d 222, 225.)