(concurring in part and dissenting in part).
{30} I respectfully dissent on the issue of consent as an affirmative defense and Defendant’s right to an instruction thereon.
{31} I find the majority’s discussion of two different kinds or types of consent defenses somewhat irrelevant. I believe that with the evidence presented and testimony given, Defendant was entitled to an instruction on consent as an affirmative defense. I would have so concluded, even before the UJI had been changed to accommodate such an affirmative defense. I would reverse and remand for a new trial.
{32} The majority states that “[t]he jury, having found that Defendant used force, necessarily found that Wife did not consent.” Majority Opinion ¶ 26. I disagree.
{33} As anyone who has read the hundreds of medical and sociological reports and studies, or even watched “CSI” or a similar television show, knows there are people who willingly participate in what might be called “rough sex,” which would contain elements of force, or even violence. It could probably qualify as common knowledge that these people do so on a consensual basis and apparently enjoy some sense of brutality. An element of force is very much a part of it. See Charles Moser, Ph.D., Professor of Sexology of the Institute for Advanced Study of Human Sexuality, The Forensic Echo: Behavioral and Forensic Sciences in the Courts, Sado-Masochism: Harmless or Ominous?, Issue 1, Vol. 5 (2001), available at http://echo.forensicpanel.eom/2001/l/3/sadomasochismharmless.html. Therefore, having consensual sexual intercourse, containing both force and violence, may not be illegal. That is what the jury, properly instructed, must decide.
{34} If an affirmative defense of consent is not a true defense, the effect is to make legal activity illegal. If a party cannot consent to sex involving force or violence, then each act of “rough sex” in the State of New Mexico before 2005 was illegal. There are cases in which consensual actions are prohibited for a good purpose. In the case of statutory rape, the public has a proper interest in the protection of persons under the age of consent, who cannot be said to have the ability to consent themselves. See NMSA 1978, § 30-9-13 (2005) (defining criminal sexual contact of a minor as being on a child under thirteen years of age, or on a child thirteen to eighteen years of age, when the perpetrator is in a position of authority, uses force, coercion, or is armed with a deadly weapon). With the issue at hand, what would be the public interest in prohibiting an intimate activity between consenting adults? In Lawrence v. Texas, 539 U.S. 558, 560, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), the United States Supreme Court held that a Texas statute criminalizing sodomy between consenting homosexual males “furthers no legitimate state interest which can justify its intrusion into the individual’s personal and private life.”
{35} However, I cannot find ineffective assistance of counsel because, as the majority points out, defense counsel was following the law as it existed at the time of trial and that is all we expect of any reasonably competent attorney. State v. Savage, 115 N.M. 250, 255, 849 P.2d 1073, 1078 (Ct.App.1992).
{36} I reach the conclusion that we should reverse and remand based upon fundamental error because a reasonable jury could be confused or misled when a jury is not properly instructed. See State v. Parish, 118 N.M. 39, 42, 878 P.2d 988, 991 (1994); see also State v. Baca, 1997-NMSC-045, ¶ 41, 124 N.M. 55, 946 P.2d 1066 (“Fundamental error only applies in exceptional circumstances when ... it would shock the judicial conscience to allow the conviction to stand.”).
{37} I do not agree with the majority’s conclusion that Defendant does not have a “true affirmative defense” here. Majority Opinion ¶ 25.
{38} I respectfully dissent.