For the Defense - Vol. 8, Issue 3 - 64

Rules
Committee
Report
Jordan Barnett
and Ashley Shapiro
T
he Pennsylvania Association of Criminal Defense Lawyers
submitted comments to the Pennsylvania Suggested
Standard Criminal Jury Instruction Committee regarding
revisions being proposed by victim advocate groups on the issue
of sexual offense prosecutions. PACDL shared concerns to ensure
the perspective of the criminal defense attorney community
were included. Highlights of its comments are listed below.
Proposed Amendments to Jury Instructions on
Consent
PACDL has significant concerns with the victim advocate
groups' proposal to add an " affirmative consent " requirement
to the suggested standard jury instructions relating to " consent. "
Arguments in support of such a change misclassified Pennsylvania
as an " affirmative consent " jurisdiction, misrepresented the
prevailing legal sentiment on " affirmative consent " in criminal
matters, and sought to avoid the legislative process. Additionally,
the proposed amendments also raised serious due process
concerns by impermissibly shifting the burden of proof to the
defendant to disprove guilt, infringing on the presumption of
innocence, and making sexual assault a strict liability offense.
Along with these more general objections, PACDL raised
specific objections to the proposal on consent changes. First,
PACDL suggested rejecting proposed amendments to the
instructions on rape, involuntary deviate sexual intercourse
(IDSI), and aggravated indecent assault by forcible compulsion
because they eliminate the prosecution's burden of proving
lack of consent beyond a reasonable doubt and instead require
that the defendant prove consent as an affirmative defense.
64 For The Defense l Vol. 8, Issue 3
Second, PACDL noted that the recommended jury charge that
" [s]ilence, inaction, and lack of resistance do not mean consent "
is inconsistent with Pennsylvania law, which maintains that
consent must be viewed considering all the circumstances. Third,
the proposed amendments to the instructions relating to sexual
assault, aggravated indecent assault, and indecent assault fail to
clarify that the burden is on the Commonwealth to prove lack
of consent beyond a reasonable doubt. Fourth, the proposed
instruction on indecent assault needlessly removes the existing
guidance that the age and mentality of the alleged victim must
be considered when assessing whether consent was present.
Finally, PACDL argued that the proposed definition of " consent "
as " [c]onsent must be ongoing and may be withdrawn or
revoked at any time " should be rejected because it fails to
provide any legal authority to support this recommendation,
and the recommendation is unworkable without guidance on
how to assess whether the withdrawal of consent was legally
effective.
Proposed Amendment of Jury Instruction on
Corruption of a Minor Pa. SSJI (Crim) § 15.6301A
(Crim)
PACDL also objected to a proposed amendment related to
changes to two provisions in paragraph 2 of the suggested
standard jury instruction. First, the proposed instruction removes
statutory language in §6301(a)(1)(ii) that the defendant engage
in " any course of conduct " in violation of Chapter 31. " Excising
the language makes the instruction less accurate and potentially
confusing.1

For the Defense - Vol. 8, Issue 3

Table of Contents for the Digital Edition of For the Defense - Vol. 8, Issue 3

Contents
For the Defense - Vol. 8, Issue 3 - 1
For the Defense - Vol. 8, Issue 3 - 2
For the Defense - Vol. 8, Issue 3 - Contents
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