Tobias

In this case, we decide whether a child under 18 who has a consensual sexual relationship with a parent is, like the parent, guilty of incest (Pen. Code, § 285) 1 and therefore an accomplice to the parent’s crime, whose testimony against the parent is subject to the cautionary rules governing accomplice testimony. The Court of Appeal held that such a child is an accomplice and therefore the trial court should have given accomplice instructions to the jury. Nevertheless, the court found the error harmless and affirmed defendant’s conviction.

We conclude that a child under 18 who has an incestuous sexual relationship with an adult is a victim, not a perpetrator, of the incest, and this conclusion remains valid even when the child consents to the sex. In short, the law puts the burden on the adult, not the minor child, to refrain from a sexual relationship. Therefore, a child in this situation can never be an accomplice, and accomplice instructions are not appropriate. We affirm the judgment of the Court of Appeal, but reject that court’s reasoning.

Factual and Procedural Background

In July 1995, when defendant was 38, his 16-year-old daughter, V., moved into his home…

I concur fully in the majority’s holding that a child less than 18 years of age who engages in consensual incestuous sexual relations *339 with an adult is not an accomplice to the crime of incest (Pen. Code, § 285). 1 Unlike the majority, however, I believe this conclusion continues to be supported by the rationale of prior decisions relying upon the circumstance that a minor is incapable of giving legal consent to sexual intercourse with an adult. The 1970 amendment of section 261 (defining the crime of rape) and enactment of section 261.5 (defining the crime of unlawful sexual intercourse with a minor) did not abrogate the principle that a minor lacks the capacity to give legal consent to sexual intercourse.

Before 1970, rape was defined to include “an act of sexual intercourse accomplished with a female not the wife of the perpetrator, ... [10 1-Where the female is under the age of eighteen years; . . .” (Stats. 1913, ch. 122, § 1, p. 212.) Thus, a minor who voluntarily engaged in sexual intercourse with an adult was deemed unable to give legal consent to such an act, and actual consent was no defense to rape or related crimes. In People v. Verdegreen (1895) 106 Cal. 211 [ 39…

I concur in the majority’s conclusion that accomplice instructions should not have been given. As the majority writes, “[d]espite the unambiguous wording of [Penal Code section 285], which malee[s] no express exception for minors, the Court of Appeal has held, in a consistent line of cases dating back nearly 75 years, that a minor who has incestuous sexual intercourse with an adult is not guilty of incest, even if the minor is older than 14 and participates voluntarily in the incestuous act.” (Maj. opn., ante, at p. 332.) Under these circumstances, the principle of stare decisis has more than sufficient force to justify the court’s conclusion. The principle has special importance in substantive criminal law, because changes in that law can raise ex post facto and due process concerns. “Adherence to precedent must then be the rule rather than the exception if litigants are to have faith in the even-handed administration of justice in the courts.” (Cardozo, The Nature of the Judicial Process (1921) p. 34.)

While I join in the majority’s conclusion, I cannot endorse its analysis. The opinion reflects a strained effort to ground the court’s conclusion in *344 legislative intent. The…

In this case, we decide whether a child under 18 who has a consensual sexual relationship with a parent is, like the parent, guilty of incest (Pen.Code, § 285) [1] and therefore an accomplice to the parent's crime, whose testimony against the parent is subject to the cautionary rules governing accomplice testimony. The Court of Appeal held that such a child is an accomplice and therefore the trial court should have given accomplice instructions to the jury. Nevertheless, the court found the error harmless and affirmed defendant's conviction.

We conclude that a child under 18 who has an incestuous sexual relationship with an adult is a victim, not a perpetrator, of the incest, and this conclusion remains valid even when the child consents to the sex. In short, the law puts the burden on the adult, not the minor child, to refrain from a sexual relationship. Therefore, a child in this situation can never be an accomplice, and accomplice instructions are not appropriate. We affirm the judgment of the Court of Appeal, but reject that court's reasoning.

In July 1995, when defendant was 38, his 16-year-old daughter, V., moved into his home with her infant child. Prior to…