In People v. Garcia (2014) ___ Cal.App.4th ____, the Fourth Appellate District, Division Three Court of Appeal Court of Appeal reversed a judgment for sexual abuse because the prosecutor relied on the defendant’s sexual orientation as a lesbian to provide a motive for abusing a girl she babysat.The sexual abuse started when the minor was six years old and continued for four years. The defendant was hired as the family’s live-in babysitter. She used digital penetration, sometimes forcefully, and threatened the minor. The minor had previously complained about the defendant’s inappropriate touching but the mother did nothing until she caught them “in the act” when she discovered them sexually touching in the bedroom.
The prosecutor argued that sexual preference was an issue in the case. Evidence of defendant’s relationships (or lack of them) came in. The defense made a motion for mistrial, but the trial court denied the motion. During closing arguments, the prosecutor urged the jury to consider defendant’s sexual orientation as a motive to abuse the girl.
The appellate court concluded “sexual orientation had no logical bearing on whether [defendant] was guilty of sexually abusing (the minor].” The trial court did not take the issue off the table in his pretrial rulings. The appellate court stated, “The lid of the evidentiary box having been left open, the prosecutor pried at it like Pandora until the legal consequences leaped out in closing argument.” (Opn., pg. 10.)
The court found the prosecutor linked the defendant’s sexual orientation with motive, i.e., the defendant chose to victimize the minor because she was gay. The court stated,
“We have grown beyond that notion. ‘[T]he modern understanding of pedophilia is that it exists wholly independently from homosexuality. The existence or absence of one neither establishes nor disproves the other.’ . . . California courts have long recognized that a defendant’s sexual attraction to adults of the same sex has nothing to do with whether they are sexually attracted to children of the same sex.”
(Opn., pgs. 12-13.) (Citations omitted; italics in original.)
The court concluded it did not believe the evidence and argument concerning the defendant’s sexual orientation can be considered harmless beyond a reasonable doubt. As a result, the judgment must be reversed. “Due process and the interests of fairness dictate that appellant be judged by what she did, not who she is. Nothing less will do.” (Opn., pg. 19.)