Comment

Affirmative Defense. Texas Penal Code section 21.11(b) provides an affirmative defense if the contact was consensual and the defendant was not more than three years older than the victim and of the opposite sex of the victim. This affirmative defense, known traditionally as the “boyfriend defense,” will not protect homosexual contact or indecency even when the contact or exposure is consensual and the defendant is not more than three years older than the victim. The Committee notes that Penal Code section 21.06, which criminalized homosexual conduct, was held unconstitutional by the U.S. Supreme Court in Lawrence v. Texas, 539 U.S. 558 (2003). The Lawrence court held that criminalizing voluntary “deviate sexual intercourse” violated the “right to privacy” protected by substantive due process, enshrined in the Due Process Clause of the Fourteenth Amendment. This case may give rise to a defense argument that the boyfriend defense must, as a matter of constitutional law, apply to both homosexual and heterosexual contact or exposure.

Additional Elements of Defense. As the affirmative defense of minimal age difference is defined in Penal Code section 21.11, it includes elements in addition to those reflected in the charge:

• (3) at the time of the offense [the defendant]:
  • (A) was not required under Chapter 62, Code of Criminal Procedure, to register for life as a sex offender; or
  • (B) was not a person who under Chapter 62 had a reportable conviction or adjudication for an offense under this section.

Tex. Penal Code § 21.11(b)(3). The Committee believed that generally there would be no dispute about whether the evidence showed these matters. Thus they could generally be resolved by the trial judge as a matter of law. This avoids the need for the very complex charge that would be required for submission of those matters to the jury.

A very unusual case could arise in which the trial judge determines that the evidence clearly fails to show one or more of the elements of the affirmative defense but the defendant nevertheless seeks jury submission of the defense. The Committee did not address whether, under those circumstances, the defendant would be entitled to jury submission under a charge requiring the defendant to prove the contested elements. See Tex. Penal Code § 2.04(c) (affirmative defense is to be submitted to the jury if “evidence is admitted supporting the defense”).

Note that the age element of the affirmative defense of minimal age difference in Penal Code section 21.02(g) is five years, whereas the age difference in the parallel defense in section 21.11(b) is three years, and the elements concerning registration under chapter 62 of the Code of Criminal Procedure vary slightly as well. See CPJC 21.2 for the elements of the defense based on Penal Code section 21.02(g).

Defining “Preponderance of the Evidence.” The Penal Code does not define “preponderance of the evidence.” While terms left undefined by the legislature should generally remain so in the charge, there is an exception for terms that have a known and established legal meaning. See Medford v. State, 13 S.W.3d 769, 772 (Tex. Crim. App. 2000) (inappropriate for jurors to apply own definitions of “arrest”). The court of criminal appeals has not determined whether “preponderance of the evidence” qualifies under this exception, but it long ago upheld an insanity instruction defining preponderance as “the greater weight of credible testimony.” McGee v. State, 238 S.W.2d 707, 716 (Tex. Crim. App. 1950) (op. on reh’g). Unlike the more common “reasonable doubt” standard—which it is better not to attempt to define, Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000)—further explanation of the term “preponderance” may be of appreciable help to jurors. See Murff v. Pass, 249 S.W.3d 407, 411 (Tex. 2008) (per curiam) (finding no error in judge’s explanations to counter venire’s confusion between clear-and-convincing and preponderance standards). The “greater weight” or “greater weight and degree” definitions have long been used in both civil and criminal jury charges. See, e.g., Harrell v. State, 65 S.W.3d 768, 772 n.2 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d) (voluntary release in safe place of kidnapping victim); Watts v. State, 680 S.W.2d 667, 672 (Tex. App.—Fort Worth 1984, pet. ref’d) (defense of insanity); Benton v. State, 107 S.W. 837, 838 (Tex. Crim. App. 1908) (jury charge on former jeopardy). That definition is part of the instruction on preponderance of the evidence required in civil cases. Tex. R. Civ. P. 226a (defining preponderance as “the greater weight of credible evidence presented in this case” and explaining that a fact must be “more likely true than not true” to be proved by a preponderance). The Committee thus concluded it would not be error to define the term for jurors and may frequently be helpful.

Alternate Language for Affirmative Defenses. The Committee concluded that when an affirmative defense is the only defense raised in a trial, jurors are not usually aided by use of the technical term. It typically only has meaning to jurors when used in comparison to a non-affirmative defense. As a result, trial judges have the option of dropping the word “affirmative” from the instruction. Where any party prefers the technical term, or when both a defense and an affirmative defense are submitted in the same trial (such as with necessity and duress), the bracketed “affirmative defense” language should be used, as well as the first selection under the burden of proof unit of the instruction.