People v. Williams

KENNARD, J., Concurring.

I agree with the majority that the defendant in this case was not entitled to a jury instruction under People v. Mayberry (1975) 15 Cal.3d 143 [125 Cal.Rptr. 745, 542 P.2d 1337] to the effect that a reasonable belief in the victim’s1 consent negates the criminal intent for rape. I also agree that the Mayberry instruction is proper only in a limited class of forcible rape cases. It is indeed a rare case in which the evidence would support jury findings that the defendant reasonably believed that the victim consented to sexual intercourse but that, because the victim did not in fact consent, this reasonable belief was mistaken.

According to the majority, a Mayberry instruction should be given when the evidence shows “equivocal conduct” by the victim. (Maj. opn., ante, p. 362.) By “equivocal conduct” the majority means, presumably, behavior by a nonconsenting victim that might reasonably be misinterpreted as a manifestation of consent. In my view, the majority’s “equivocal conduct” test to determine when to give the Mayberry instruction is too amorphous a standard to provide useful guidance for the trial courts. Moreover, because in a Mayberry situation it is the defendant’s state of mind that is at issue, the victim’s conduct should not be the only consideration in deciding whether to give the Mayberry instruction. I therefore write separately to set forth the narrow circumstances that, in my view, warrant such an instruction.

*373I

California law defines forcible rape as an act of sexual intercourse with a person not the spouse of the perpetrator “accomplished against [the] person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. . . .’’ (Pen. Code, § 261, subd. (a)(2).)2 We have recognized that most rapes are accomplished by the use or threat of force. (See People v. Barnes (1986) 42 Cal.3d 284, 294-295 [228 Cal.Rptr. 228, 721 P.2d 110].) Indeed, although it was once thought of as a deviant form of sexual behavior, rape is now regarded primarily as an act of violence. (See Estrich, Real Rape (Harv.U. Press 1987) pp. 82-83.)

A determination that the defendant accomplished sexual intercourse by threat or use of force generally precludes a finding by the trier of fact that the victim consented to have intercourse. As one court aptly put it, “[c]on-sent [to sexual intercourse] induced by fear is no consent at all.” (People v. Hinton (1959) 166 Cal.App.2d 743, 749 [333 P.2d 822].)

Whether the victim actually consented to sexual intercourse, however, is not at issue in a Mayberry situation. This court’s holding in People v. Mayberry, supra, 15 Cal.3d at page 155, was that an accused who reasonably and in good faith believed that sexual intercourse was not against the victim’s will lacked the criminal intent necessary for forcible rape. In a prosecution for forcible rape, a defendant who raises a Mayberry defense challenging the existence of criminal intent does not, by raising that defense, contest the other elements of the statutory definition of forcible rape. This is the reason: The statutory definition of the offense focuses on the victim’s frame of mind, asking whether her participation in the sexual act was coerced by threat or use of force, whereas the criminal intent requirement articulated in Mayberry focuses on the defendant’s mental state, asking whether the defendant held a reasonable belief that the victim’s participation was voluntary.

The crux of the Mayberry claim is that even though the defendant may have used or threatened force, he nonetheless had a reasonable and good faith belief that the victim consented to sexual intercourse. Thus, evidence showing only that the victim actually consented to the act of intercourse will not support a Mayberry claim, although it tends to demonstrate that an essential element of the definition of forcible rape is lacking. To warrant the *374Mayberry instruction, the evidence must be sufficient for a jury to find both of the following: (1) the defendant accomplished the sexual intercourse against the victim’s will by the threat or use of force, and (2) the defendant believed reasonably and in good faith that the victim voluntarily consented to the act of intercourse.

II

Under what state of facts could a jury conclude both that the defendant used or threatened force and that it was reasonable for him to believe the victim consented to sexual intercourse? Two fact patterns that would support both findings have been proposed in an amicus curiae brief filed in this case by Queen’s Bench, a professional organization of women lawyers in the San Francisco Bay area. The first involves evidence that the amount of force used or threatened by the defendant was slight—sufficient to accomplish the sexual intercourse against the victim’s will but not so great as to render unreasonable a belief by the defendant that the victim consented notwithstanding the use or threat of force. The second situation involves the rare circumstance in which the evidence would support a reasonable belief by the defendant that the victim consented to his use of force. I agree with Queen’s Bench that a Mayberry instruction is appropriate in each of these two situations.

I would, however, add a third fact pattern to those proposed by Queen’s Bench: when, because of the substantial passage of time between the defendant’s use or threat of force and the act of sexual intercourse, the defendant could reasonably believe that the victim’s participation in the act of sexual intercourse was not coerced.

Unless the evidence presented during a trial of a forcible rape case falls within one of these three fact patterns, the defendant is not, in my view, entitled to a jury instruction under People v. Mayberry, supra, 15 Cal.3d 143, that a reasonable and good faith belief in the victim’s consent negates the requisite criminal intent for rape.

Here, there was no evidentiary basis for a Mayberry instruction. The victim testified that she acquiesced to sexual intercourse shortly after the defendant punched her in the eye and threatened her. According to defendant, however, it was the victim who initiated sexual intercourse, and defendant denied using or threatening force or violence before the intercourse. Thus the evidence at trial was either that defendant used no force, or that he used substantial force immediately preceding the sexual intercourse. This evidence does not fit any of the three fact patterns articulated earlier: there was

*375no evidence that defendant used only a slight amount of force, or that the victim agreed to defendant’s use of force, or that the act of sexual intercourse took place a substantial time after defendant’s use or threat of force. Therefore, defendant was not entitled to a jury instruction under People v. Mayberry, supra, 15 Cal.3d 143, that a reasonable and good faith belief in the victim’s consent to intercourse would negate the intent for forcible rape. On this basis, I concur in the reversal of the judgment of the Court of Appeal.

For convenience, I use the term “victim,” rather than the more technically correct “alleged victim,” to refer to the person whom the accused is charged with raping.

I do not here address the application of the Mayberry defense to those situations chargeable under Penal Code section 261, subdivision (a)(2), in which the evidence shows sexual intercourse induced by “duress” involving threatened “hardship” or “retribution” (see Pen. Code, § 261, subd. (b)) or by “menace” (see id., § 261, subd. (c)).