T.P.I. -- CRIM. 40.12

DEFENSE:  PRIOR SEXUAL ACTIVITY OF VICTIM

(Applicable to Statutory Rape)

(FOR OFFENSES COMMITTED PRIOR TO JULY 1, 1994)

            Included in the defendant's plea of not guilty is [his] [her] plea that the alleged victim had engaged in sexual penetration promiscuously.

            It is a defense to a statutory rape prosecution that:¹

            (1)  at the time of the defendant's alleged offense, the alleged victim was at

                   least fourteen (14) years of age;

 and

            (2)  prior to the time of the defendant's alleged offense, the alleged victim

                   had engaged promiscuously in sexual penetration.

            "Promiscuous" means consensual sexual conduct with a variety of partners, but does not include a single prior act of sexual intercourse.²

           "Sexual penetration" means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of the alleged victim's, the defendant's, or any other person's body, but emission of semen is not required.³

            If evidence is introduced supporting the defense of prior sexual activity of the alleged victim, then the burden is on the state to prove beyond a reasonable doubt that the alleged victim had not engaged in sexual penetration promiscuously.⁴

            If, from all the facts and circumstances in the case, you find that the alleged victim, at the time of the defendant's alleged offense, was at least fourteen (14) years of age and, prior to the time of the alleged offense, the alleged victim had engaged promiscuously in sexual intercourse, or if you have a reasonable doubt as to those matters, then you must find the defendant not guilty.⁵

FOOTNOTES

  1.  Tenn. Code Ann. § 39-13-506(b)(now repealed).

  2.  This definition comes from Law Revision Commission, Tennessee Criminal

       Code and Code of Criminal Procedure, § 39-1306 comment (Proposed Final

       Draft 1973).

  3.  Tenn. Code Ann. § 39-13-501(7).

  4.  Tenn. Code Ann. § 39-11-201(a)(3).

  5.  Tenn. Code Ann. § 39-11-203(d).

COMMENTS

            1.  This defense was abolished effective July 1, 1994.  See 1994 Public Acts of Tennessee, Chapter 719.