Chapter 21
Sexual Offenses
21.22 Instruction—Sexual Assault of Child—Affirmative Defense of Minimal Age Difference
[Insert instructions for underlying offense.]
If you all agree the state has proved, beyond a reasonable doubt, the two elements listed above, and you all agree on the same incident or incidents when these elements occurred, you must next consider whether the defendant is not guilty because of the defense of minimal age difference.
Minimal Age Difference
It is a defense to the offense of sexual assault of a child that—
- the person was not more than three years older than the child; and
- the child was fourteen years old or older.
Burden of Proof
[Choose one of the following.]
Minimal age difference is an affirmative defense. That means the burden is on the defendant to prove minimal age difference by a preponderance of the evidence.
[or]
The burden is on the defendant to prove minimal age difference by a preponderance of the evidence.
Definitions
Preponderance of the Evidence
The term “preponderance of the evidence” means the greater weight of credible evidence presented in this case. For a fact to be proved by a preponderance of the evidence, you must find that the fact is more likely true than not true.
Application of Law to Facts
To decide the issue of minimal age difference, you must determine whether the defendant has proved, by a preponderance of the evidence, two elements. The elements are that—
- the defendant was not more than three years older than [name]; and
- [name] was fourteen years old or older.
If you all agree the defendant has proved, by a preponderance of the evidence, both of the two elements listed above, you must find the defendant “not guilty.”
If you all agree the state has proved, beyond a reasonable doubt, each of the elements of the offense of sexual assault of a child, and you all agree the defendant has not proved, by a preponderance of the evidence, both elements 1 and 2 listed above, you must find the defendant “guilty.”
[Insert any other instructions raised by the evidence. Then continue with the verdict form found in >CPJC 2.1, the general charge.]
Comment
As the affirmative defense of minimal age difference is defined in Texas Penal Code section 22.011, it includes several elements in addition to those reflected in the charge:
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 these 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”).
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.