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F 10.66 n1 Rape: Belief As To Consent — Evidence Necessary To Warrant Instruction (PC 261 & PC 263).
This entry has been renumbered FORECITE F 10.00 n8.
F 10.66 n2 Rape: Belief As To Consent — The “Equivocal Conduct” Limitation On The Defense Of Reasonable Good Faith Belief Is Violative Of Due Process (PC 261 & PC 263).
NOTE: CJ 10.66 was deleted by the CALJIC Committee in the 6th Edition (1997). See FORECITE F 10.66a for the 5th Edition instruction.
In 1975, the California Supreme Court announced the rule that a defendant must be acquitted of sexual assault if he or she had a reasonable and good faith belief that the alleged victim consented to the sex acts in question. (People v. Mayberry (75) 15 C3d 143, 153-58 [125 CR 745].) Recently, the court has placed a severe limitation on the defense. Now, “a defendant must adduce evidence of the victim’s equivocal conduct on the basis of which he erroneously believed there was consent.” (People v. Williams (92) 4 C4th 354, 361 [14 CR2d 441].) Without doubt, the newly created limitation is unconstitutional.
At the outset, it is essential to note that Williams contains absolutely no explanation as to why “equivocal conduct” is a prerequisite to raising a mistake of fact defense. Indeed, no explanation exists since logic requires the opposite result. This is so because “[p]roof of unequivocal consent by the victim actually constitutes stronger evidence in support of a defendant’s belief, and the reasonableness of that belief, than evidence of equivocal conduct.” (People v. Burnham (86) 176 CA3d 1134, 147 [222 CR 630].) Stated otherwise, if the defendant testifies that the alleged victim unequivocally consented, there is manifestly substantial evidence of a reasonable and good faith belief that consent was given.
Aside from the illogic of the Williams holding, the critical point is that it is at odds with the constitution. A defendant has an absolute right to present relevant evidence with respect to the elements of the offense charged. (Rock v. Arkansas (87) 483 US 44, 55-56 [93 LEd2d 37; 107 SCt 2704]; see also People v. Bobo (90) 229 CA3d 1417, 1442 [3 CR2d 747]; but see FORECITE F 4.21 n11.) Indeed, the defendant’s constitutional right to present relevant evidence necessarily triumphs over a state’s contrary rule of exclusion. (Rock, 483 US at 55-56.)
Importantly, the California sexual assault statutes all require proof of at least general intent. Insofar as the defense of honest and reasonable belief as negating criminal intent was always a good defense at English common law (People v. Vogel (56) 46 C2d 798, 805 [299 P2d 850]), the question is whether California may irrationally dilute the defense by making it dependent on the alleged victim’s “unequivocal conduct.” Clearly, the constitution forbids the limitation devised in Williams.
In this regard, the due process clause forbids a state from defining its criminal laws in such a way as to offend “‘”some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” [Citation].’” (McMillan v. Pennsylvania (86) 477 US 79, 85 [91 LEd2d 67; 106 SCt 2411].) Thus, due process is violated if a state uses “a freakish definition … [which] finds no analogue in history or the criminal law or other jurisdictions ….” (Schad v. Arizona (91) 501 US 624 [115 LEd2d 555, 571; 111 SCt 2491] (plurality opn. of Souter, J.).)
In light of these principles, the “equivocal conduct” limitation certainly qualifies as being both “freakish” and contrary to traditional common law. Indeed to the extent that the limitation is truly irrational, it cannot be countenanced under both procedural and substantive due process principles. (See, e.g., Gray v. Whitmore (71) 17 CA3d 1, 21 [94 CR 904].)
In short, the constitution specifically allows a defendant to present relevant evidence in support of his cause, (Rock v. Arkansas, supra, 483 US 44, 55-56.) In any system of ordered liberty, a defendant must have the right to have the jury consider any competent evidence offered to disprove criminal intent. Our traditional notions of fair play require no less. (McMillan v. Pennsylvania, supra, 477 US 79, 85.)
F 10.66 n3 Rape: Belief As To Consent — Conflict Between CJ 10.61 and CJ 10.61.1 / CJ 10.66 (PC 261 & PC 263).
CJ 10.66, 5th Edition (Forcible Rape–Evidence Of Prior Consensual Sexual Acts With Defendant) was deleted in the CJ 6th Edition. However, CJ 10.61.1 contains virtually the same language.
F 10.66 n4 Rape: Belief As To Consent — CJ 10.66 Deletion in 6th Edition.
CJ 10.66, 5th Edition (Forcible Rape–Evidence Of Prior Consensual Sexual Acts With Defendant) was deleted in the CJ 6th Edition. However, CJ 10.61.1 contains virtually the same language.
F 10.66a
Forcible Rape–Evidence Of Prior Consensual
Sexual Acts With Defendant
NOTE: CJ 10.66 was deleted in the CALJIC 6th Edition and no reason was given for the deletion. However, CJ 10.61.1 contains virtually the same language.
The former Comment to CJ 10.66 was the following: 1 Witkin, Calif.Evid. (3d ed.) § 343. People v. Barnes (86) 42 C3d 284, 301-302 [228 CR 228].
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 (87) 194 CA3d 525, 528-30 [239 CR 569].
