California, United States of America
The following excerpt is from People v. Enloe, C071987 (Cal. App. 2015):
The jurors were therefore instructed on the principles of law closely and openly connected with the issue of consent as applied to each of the charged offenses. (People v. Sedeno (1974) 10 Cal.3d 703, 715.) But the evolution of the law can trigger some unintended consequences. Here defendant contends that the attempt to clarify the parameters of withdrawing consent during a rape leads to a mistaken implication that the same rules regarding the withdrawal of consent during penetration do not apply before penetration and before a sexual battery or forcible sexual penetration. We examine the evolution of the instructions given, assess how a reasonable juror would construe the instructions when taken as a whole, determine whether defendant's attorney should have requested a clarification and, if so, whether the failure to do so was harmless beyond a reasonable doubt.
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