SERIES 1000 SEX OFFENSES
F 1000 NOTES
TABLE OF CONTENTS
F 1000 Note 1 Rape Or Spousal Rape By Force, Fear, Or Threats—CALCRIM Cross-References And Research Notes
F 1000 Note 2 Forcible Sex Offenses: Belief As To Consent—Evidence Necessary To Warrant Instruction
F 1000 Note 3 Forcible Sex Offenses: Belief As To Consent—Jury Should Consider Defendant’s Intoxication
F 1000 Note 4 Forcible Sex Offenses: Definition Of Duress And Menace—No Sua Sponte Duty
F 1000 Note 5 Sex Crimes: Entrapment (PC 261 & PC 263)
F 1000 Note 6 Forcible Sex Offenses: Consent Defined—PC 261.6 Violates Due Process As Contrary To The Common Law
F 1000 Note 7 Forcible Sex Offenses: Consent Defined—PC 261.6 Violates Due Process As Irrebuttable Presumption
F 1000 Note 8 Forcible Sex Offenses: 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)
F 1000 Note 9 Forcible Sex Offenses: Failure To Give Good Faith Consent Instruction Sua Sponte As Reversible Error
F 1000 Note 10 Spousal Rape: No Constitutional Violation For Failure To Include Cohabitants Of The Same Sex
F 1000 Note 11 Assault With Intent To Rape Not LIO Of Attempted Rape
F 1000 Note 12 Defendant Need Not Testify To Obtain Mayberry Instruction
Return to Series 1000 Table of Contents.
F 1000 Note 1 Rape Or Spousal Rape By Force, Fear, Or Threats—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 1001 [Rape or Spousal Rape in Concert]
CALCRIM 1002 [Rape of Intoxicated Woman or Spouse]
CALCRIM 1003 [Rape of Unconscious Woman or Spouse]
CALCRIM 1004 [Rape of a Disabled Woman]
CALCRIM 1005 [Rape by Fraud]
Research Notes:
See CLARAWEB Forum: CALCRIM Warnings, Sex Offenses—Series 1000.
F 1000 Note 2 Forcible Sex Offenses: Belief As To Consent—Evidence Necessary To Warrant Instruction
In People v. Williams (1992) 4 C4th 354, the court held that “because the Mayberry instruction is premised on mistake of fact, the instruction should not be given absent substantial evidence of equivocal conduct that would have led a defendant to reasonably and in good faith believe consent existed where it did not.” (4 C4th at 362.) Hence, Williams effectively requires the defendant to corroborate his own testimony with conduct by the victim in order to obtain an instruction upon reasonable belief in consent. This requirement raises 14th Amendment due process considerations by precluding the defendant from obtaining a jury determination as to the credibility of the defense upon which he/she has relied. (See U.S. v. Escobar de Bright (9th Cir. 1984) 742 F2d 1196, 1201-02 [failure to instruct on theory of defense supported by the evidence violates due process].)
NOTE: Williams stated that the jury should be further instructed, if appropriate, that a reasonable mistake of fact may not be found if the jury finds that the equivocal conduct on part of the victim was the product of “force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.” (4 C4th at 364.)
The defense of reasonable belief as to consent is well established. (See People v. Mayberry (1975) 15 C3d 143, 157-58.) Hence, when the record contains evidence that the defendant had a bona-fide and reasonable belief that the prosecutrix consented to the sexual intercourse a Mayberry instruction should be given. (See People v. Sojka (2011) 196 CA4th 733; People v. Simmons (1989) 213 CA3d 573, 579-80.)
See also FORECITE F 1000 Note 12 [Defendant need not testify to obtain Mayberry instruction].
F 1000 Note 3 Forcible Sex Offenses: Belief As To Consent—Jury Should Consider Defendant’s Intoxication
See Brief Bank # B-849 for briefing on this issue.
CALJIC NOTE: See FORECITE F 10.00 n10.
F 1000 Note 4 Forcible Sex Offenses: Definition Of Duress And Menace—No Sua Sponte Duty
See People v. Elam (2001) 91 CA4th 298 [trial court need not sua sponte instruct on the meaning of “duress” or “menace” which mean the same as their common dictionary definitions].)
CALJIC NOTE: See FORECITE F 10.00 n12.
F 1000 Note 5 Sex Crimes: Entrapment(PC 261 & PC 263)
See Annotation, Entrapment Defense in Sex Offense Prosecutions, 12 ALR4th 413 and Later Case Service.
[Research Note: See FORECITE BIBLIO 10.00, et seq.]
CALJIC NOTE: See FORECITE F 10.00 n2.
F 1000 Note 6 Forcible Sex Offenses: Consent Defined—PC 261.6 Violates Due Process As Contrary To The Common Law
ALERT: This argument was rejected in People v. Gonzalez (1995) 33 CA4th 1440, 1442-43.
CJ 1.23.1 is taken from PC 261.6. In relevant part, PC 261.6 provides that consent in a sex case “shall be defined to mean positive cooperation in act or attitude pursuant to an exercise of free will.” This definition violates the federal due process clause.
At the outset, it is essential to note that the rape, sodomy, oral copulation and penetration with a foreign object statutes all contain the element that the proscribed sex acts must be “against a person’s will” or “against the victim’s will.” (PC 261(a)(2); PC 286(c); PC 288a(d)(1) and PC 289(a).) However, pursuant to PC 261.6, the quoted elements are, in fact, defined as sex acts without the “positive cooperation in act or attitude” of the alleged victim. Clearly, this rewriting of the concept of consent is totally at odds with the principle of fairness which is inherent in the due process clause.
In this regard, the common law has always held that rape does not occur unless the sex act is against the person’s will. (People v. Barnes (1986) 42 C3d 284, 297.) Or, stated more fundamentally, the law proscribing rape protects the victim against the “outrage” of being sexually violated. (People v. Vela (1985) 172 CA3d 237, 243.)
Notwithstanding these traditional notions, PC 261.6 has drastically altered the nature of consent. Previously, society protected a victim against acts which were imposed on him or her contrary to his or her will. Now the law provides that a person’s mere neutrality or ambiguity about a sex act can turn the act into a criminal violation (i.e. a person who neither resists nor exhibits “positive cooperation in act or attitude ….”). Lest this discussion seem more theoretical than real, the following hypothetical demonstrates the problem presented by California’s new definition of consent.
Assume that a wife and husband have been married for ten years. During this time, the wife has had no desire for sexual intercourse with her husband; however, on a regular basis, the husband has engaged in sexual intercourse with the wife. On these occasions, the wife has not protested. Moreover, the wife has always remained very stationary during the sex act. Although not expressed to her husband, the wife’s attitude about these events is that it is part of the marriage contract although she does not enjoy participating.
Clearly, under the common law, the wife has not been raped. While she did not enjoy the sex acts, she manifestly consented since the acts were not against her will (i.e. she believed that it was her duty to participate); however, under PC 261.6, the wife is a victim of rape. Insofar as she did not have a “positive attitude” about having sex and did not “positively cooperate” in the sex acts, the wife has been raped.
In light of the hypothetical, the question remains whether PC 261.6 passes muster under the federal constitution. Under the due process clause, a state is free to define the elements of crimes as it sees fit. (McMillan v. Pennsylvania (1986) 477 US 79, 85 [91 LEd2d 67; 106 SCt 2411].) However, the Supreme Court has cautioned that “‘there are obviously constitutional limits beyond which the States may not go in this regard, …'” (Ibid.) Presumably, the limits set by the due process clause are those statutes which offend “‘some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” [Citation.]'” (Ibid.)
Applying the cited test, California’s definition of consent is completely out of step with traditional common law. In this regard, the 230-year-old rule in Anglo-American law is that consent will not be found when the person’s “‘will has been overborne and his capacity for self-determination critically impaired, …'” (Schneckloth v. Bustamonte (1973) 412 US 218, 225 [36 LEd2d 854, 862; 93 SCT 2041].) Under PC 261.6, this traditional rule has been cast aside as has been demonstrated in the hypothetical.
Moreover, it must be emphasized that the definition set forth in PC 261.6 cannot be squared with any rational notion of the nature of legal consent. For example, when a citizen consents to a police search of his or her property, is the consent given with a “positive attitude?” Usually not. Thus, it is simply unfair to a defendant to create a rarefied and non-traditional definition of consent when lack of consent is an element of a criminal offense. Thus, PC 261.6 defies our traditional notions of justice. (See Schad v. Arizona (1991) 501 US 624 [115 LEd2d 555, 571; 111 SCt 2491] (plurality opn. of Souter, J.); “a freakish definition of the elements of a crime that finds no analogue in history or the criminal law of other jurisdictions will lighten the defendant’s burden” of showing a due process violation.)
(See FORECITE PG VII(C)(48).)
[See Brief Bank # B-618 and see Opinion Bank # O-178 for additional briefing discussing this issue. ]
CALJIC NOTE: See FORECITE F 1.23.1 n2.
F 1000 Note 7 Forcible Sex Offenses: Consent Defined—PC 261.6 Violates Due Process As Irrebuttable Presumption
ALERT: This argument was rejected in People v. Gonzalez (1995) 33 CA4th 1440, 1444.
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. Key (1984) 153 CA3d 888, 895; People v. Degnen (1925) 70 CA 567, 591.) The definition of “consent” in PC 261.6 violates the federal constitution (14th Amendment) by relieving the prosecution of the burden of showing nonconsent where the victim passively assents but does not show “positive cooperation.” (See generally FORECITE PG VII(C).)
CALJIC NOTE: See FORECITE F 1.23.1 n3.
F 1000 Note 8 Forcible Sex Offenses: 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)
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 (1975) 15 C3d 143, 153-58.) 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 (1992) 4 C4th 354, 361.) 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 (1986) 176 CA3d 1134, 1147.) 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 (1987) 483 US 44, 55-56 [93 LEd2d 37; 107 SCt 2704]; see also People v. Bobo (1990) 229 CA3d 1417, 1442; 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 (1956) 46 C2d 798, 805), 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 (1986) 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 (1991) 501 US 624, 640 [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 (1971) 17 CA3d 1, 21.)
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.)
CALJIC NOTE: See FORECITE F 10.65 n2.
F 1000 Note 9 Forcible Sex Offenses: Failure To Give Good Faith Consent Instruction Sua Sponte As Reversible Error
See Brief Bank # B-892for briefing on this issue.
CALJIC NOTE: See FORECITE F 10.65 n4.
F 1000 Note 10 Spousal Rape: No Constitutional Violation For Failure To Include Cohabitants Of The Same Sex
See People v. Silva (1994) 27 CA4th 1160, 1166.
CALJIC NOTE: See FORECITE F 10.00 n5.
F 1000 Note 11 Assault With Intent To Rape Not LIO Of Attempted Rape
Assault with intent to commit rape (PC 220) is not a lesser-included offense of attempted forcible rape (PC 664/261(a)(2)) because the potential punishment for the crime is greater, not lesser, than the potential punishment for attempted forcible rape. (People v. Vasquez REV GTD/DISD/DEPUB (2006) 136 CA4th 898.)
F 1000 Note 12 Defendant Need Not Testify To Obtain Mayberry Instruction
People v. Simmons (1989) 213 CA3d 573, 579-80 teaches that it is not enough to simply present evidence that the defendant and victim engaged in consensual sexual relations on prior occasions. In Simmons, the defendant presented such evidence but did not testify himself and did not present any other evidence either directly or circumstantially bearing on his state of mind at the time of the alleged offense. The Court of Appeal held that the defendant had no right to a Mayberry instruction under these circumstances.
This does not mean that the requisite evidence must come from the defendant. Circumstantial evidence of the defendant’s good faith belief in consent can be provided by the testimony of third persons. (People v. Anderson (1983) 144 CA3d 55; see also FORECITE PG X(A)(1).)
PRACTICE NOTE: Simmons illustrates the importance of obtaining pretrial rulings on jury instructions. (See FORECITE PG I(D).) If there is any question as to the sufficiency of the evidence to warrant a Mayberry instruction, counsel could make a pretrial offer of proof – in camera if possible – in order to determine whether or not the proposed evidence will be sufficient to instruct upon the defense and to allow an opportunity to develop additional evidence during trial if necessary. The disposition of this pretrial request should allow counsel to make a more informed choice as to whether or not the defendant should testify.
To avoid premature revelation of defense strategies and evidence, the request and offer of proof could be made at the close of the prosecution’s case; however, by making the request pretrial, counsel will have the added advantage of utilizing cross-examination to cure any anticipated deficiencies in the evidence necessary to obtain the requested instruction.
CALJIC NOTE: See FORECITE F 10.00 n8.