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F 10.61.1 n1 Prior Sexual Intercourse: Conflict Between CJ 10.61 and CJ 10.61.1 / CJ 10.66.
See FORECITE F 10.61 n1.
F 10.61.1a
Consent: Previous Sexual Relations With Victim
*Modify CJ 10.61.1 ¶ 2 lines 1 & 2 to provide as follows [deleted language is between <<>>]:
Such evidence, if believed, may be considered for the <<limited>> purpose of proving that …
Points and Authorities
When instructing the jury upon evidence which has a limited purpose the better approach is to state the relevance of the evidence in positive terms and provide separate limiting language. (See, e.g., People v. Leever (85) 173 CA3d 853, 865-66 [219 CR 581].) CALJIC already provides separate limiting language in paragraph 3.
Jury consideration of improper matters lessens the prosecution’s burden of proof in violation of the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See FORECITE PG VII(C).]
NOTES
Even though PC 1127d specifically applies to rape, statutory rape and assault with intent to commit rape there is no reason why a similar instruction should not be given with respect to other types of sexual activity. If the defendant is charged with a specific sexual activity it is probative and relevant to the issue of consent that the victim and defendant previously engaged in such conduct. Hence, even though such an instruction is not mandatory under PC 1127d it should be given upon request since it focuses upon the defendant’s theory of the case. (See, e.g., FORECITE F 2.92b.)
In the same session that it enacted PC 1127d, the legislature also amended PC 261.6 defining consent to include the following: “A current or previous dating relationship shall not be sufficient to constitute consent…” (See CJ 1.23.1a.) However, it may be argued that instruction upon this language is not required. (See FORECITE F 1.23.1a.)
F 10.61.1b
Evidence Of Other Sexual Activity With Same Victim:
Consideration As To Actual Consent And/Or Good Faith
Belief In Consent
*Replace CJ 10.61.1 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
At first glance, CJ 10.61.1 appears to be intended solely for rape, statutory rape and sexual assault cases where the defendant and complaining witness allegedly have had prior consensual sex. It indicates, correctly, that evidence of such prior consensual sex may be considered by the jury in deciding: (1) if the alleged sex crime was consensual, and (2) if the defendant honestly and reasonably believed it was consensual. This is a correct statement of the law. (See EC 1103(c)(3).)
However, the title and wording of CJ 10.61.1 suggests that it is intended solely for the aforementioned types of sex prosecutions, and that it applies solely to prior “sexual intercourse,” i.e., penile/vaginal sex. Moreover, a review of the title, substance and Use Note of CJ 10.61 suggests it is intended for other sex offense prosecutions–i.e., sodomy, unlawful oral copulation and object penetration–or prior consensual sex acts other than “sexual intercourse.”
These suggestions are wrong on both scores. Prior consensual sexual activities are as relevant in a prosecution for sodomy, oral copulation or object penetration as they are in a rape case. Moreover, prior consensual acts of sodomy, fellatio, cunnilingus and object penetration are as relevant to a present consent issue as are prior acts of penile/vaginal intercourse.
In People v. John Doe* (F031831), the defendant and complaining witness allegedly had engaged in prior consensual acts of oral sex and “sexual intercourse.” Because the defendant was charged with forcible oral copulation, rather than forcible rape, the trial court gave CJ 10.61, telling the jurors the prior sexual activities could be considered only in assessing “the disposition or intent of the defendant toward the other person,” and not for any other purpose.
The Fifth Appellate District reversed, thus agreeing that prior consensual acts are as relevant in a PC 288a prosecution as in a PC 261 prosecution. In so doing, the court essentially ruled the jury should have been instructed in language similar to that in CJ 10.61.1. The above instruction is the one proposed by the court. (See Opinion Bank # O-264, p. 10.) As explained in a prior FORECITE entry (F 10.61a), this is only common sense, as the applicable legal principles should not depend on which kind of sex act occurred, either previously or in the case at hand.
Hence, when the defendant and complaining witness have allegedly engaged in prior consensual sex acts, and the defendant stands charged under PC 286, PC 288a or PC 289, the court should instruct the jury as set forth above or as set forth in CJ 10.61.1, with appropriate modification.
To give an unmodified version of CJ 10.61 would be clear error. [See Opinion Bank # O-264 for the unpublished opinion supporting the use of the above instruction.]
*NOTE: This is not the true case name. The name of the defendant has been redacted by FORECITE to protect his identity during incarceration.