I've got a sexual assault of a child and improper relationship case going to trial next week. Female educator and 15 year old female student. Does the defense have a valid challenge for cause if a potential juror says that they would consider the fact that this was a lesbian relationship in assessing punishment?
This will probably be an issue in my small, conservative county.

I anticipate the defendant will plead guilty so the voir dire will focus solely on punishment issues.
I can't find any caselaw specifically on point for this particular issue. Any help would be greatly appreciated, as well as any other thoughts/comments on voir dire or trial in this case.

Thanks!

On the one hand a juror is entitled to consider the facts of the case. Sadler v. State, 977 S.W.2d 140, 143 (Tex. Crim. App. 1998) ("it would be nonsensical to rule that a juror who will use the facts to fit the punishment to the crime is unqualified and thus challengeable for cause-such a juror would be doing exactly what the law requires.").

On the other hand, I would expect defense counsel to try to show that a venireperson was biased against the defendant under CCP 35.16(a)(9). See Benson v. State, 240 S.W.3d 478, 482(Tex.App. -- Eastland 2007, pet. ref'd) ("Bias exists as a matter of law when a prospective juror admits that he is biased for or against a defendant, admits prejudice against persons who use intoxicating beverages when the defendant is charged with an offense involving liquor, or admits or demonstrates prejudice toward a racial or ethnic class of which the defendant is a member. Green v. State, 840 S.W.2d 394, 404-05 (Tex.Crim.App.1992).").

It seems all but certain that a venireperson who would give a harsher sentence simply because the defendant is homosexual is biased as a matter of law and cannot be rehabilitated by further examination. But see Almendarez v. State, No. 13-01-00044-CR, 2003 WL 1387208 at *2-3 (Tex.App. - Corpus Christi March 20, 2003, no pet.)(dealing with vague questions about homosexual conduct). Maybe a juror is allowed to punish homosexual *conduct* more harshly when that is the charged offense. Benson, 240 S.W.3d at 483 ("the trial court in this cause could reasonably have determined that, like the potential veniremember in Green, the veniremember in this case harbored animosity toward those committing the offenses of burglary or theft but harbored no bias toward Benson particularly and would not allow her feelings to affect her verdict.").

Wouldn't telling the venire that this is a lesbian relationship be telling the venire about the specific facts of the case? I would file a motion in limine excluding discussion about the specific facts of the case. This would include no reading of the indictment to the venire or discussing the victim's name other than to find out if anyone knows the "witnesses". I think either party could talk generally about who has strong feelings about homosexuality without saying that will necessarily be evidence in this case. The potential jurors will probably figure it out, but I wouldn't think it would give rise to a challenge for cause. What you want to voir dire on is whether some one will hold it against your victim, or think she "wanted it" because "she's a lesbian, too," in their eyes. Maybe you can couch the discussion in terms of "you might hear something about the victim, or her family that you don't agree with. Something about their lifestyle that you disagreed with or that's diffent from how you live your life. Would you hold that against the victim?" You could ask people what are the last 3 words in the Pledge of Allegiance? ("justice for all") and what that means to them? You could always give examples of a child victim who's mother is a drug user or alcoholic, or a child who acts out at school, or some other, non-lesbian issues. Another idea is what about doing a questionnaire, so nobody feels pressured to say, "I hate homosexuals" in front of the conservative crowd? Good luck.

Very good advice, Jane.

The purpose of the sexual assault of a child (statutory rape) statute is to protect young teenagers from adults who would use them for sexual purposes or would encourage a young teenager to become sexually active.

A juror in a statutory rape case is allowed to consider a whole range of factors when deciding punishment for such a crime, prime among them the destructiveness to the child of the relationship. For example, most people would consider sex between a 15 y.o. girl and a 30 y.o. man to be far more lopsided, and more likely to be exploitative and harmful to the girl than sex between a 16 y.o. girl and a 19-1/2 year old man, and their sentences in such cases will reflect that.

Society recognizes that many young teenagers are especially vulnerable to the enticements of people older than themselves. Moreover, society has a great interest in discouraging early sexual behavior in such children. Society has all of these same concerns when the relationship is homosexual in nature, plus the concern of an older lesbian or homosexual leading a youngster into a perverted life, at a time in their lives when some are confused about their sexual identity and are therefore especially vulnerable. Jurors therefore have every right to consider such behavior even more exploitative, dangerous and destructive than a similar heterosexual relationship, and to punish the behavior more harshly. It would be improper to strike a venireman because he says he would make such a common sense distinction between perverted and normal sex.

I assume an effort to prohibit fact-specific questions would rely upon a claim the it was an improper commitment question. See 43 Dix & Dawson, Texas Practice § 35.38 ("Efforts to tailor questions of this sort more specifically to the facts of the case have been successfully thwarted by claims counsel is seeking to commit the potential jurors to a particular verdict in advance of trial."); see also Sells v. State, 121 S.W.3d 748, 756 (Tex. Crim. App. 2003) ("A question is proper if it seeks to discover a juror's views on an issue applicable to the case. However, an otherwise proper question is impermissible if the question attempts to commit the juror to a particular verdict based on particular facts. ").

But there are lots of questions that reference facts of a case that could be proper. Standefer v. State, 59 S.W.3d 177, 180 (Tex. Crim. App. 2001) ("For example, the question, '[I]f the victim is a nun, could [the prospective juror] be fair and impartial?' does not ask the prospective juror to resolve or refrain from resolving any issue. A juror could be 'fair' and still take into account the victim's status as a nun where that status is logically relevant to the issues at trial or fail to do so if the juror perceived that the victim's status as a nun should not be controlling.") (footnote omitted); Chimney v. State, 6 S.W.3d 681, 689-90 (Tex.App. -- Waco 1999, pet. ref'd) (defendant was entitled to ask whether jury could be fair if a hypothetical capital murder victim was pregnant).

Moreover, a commitment question can be proper if it only contains the facts required to make such a challenge. Boleware v. State, 2009 WL 4263682 (Tex.App. -- Waco November 25, 2009) (question asking whether jurors would disregard victim's testimony because of criminal history was proper).

Under Standefer, I can't see any reason why a question asking whether the jurors could be fair if the defendant (or the child victim) was homosexual would be improper. See generally Abron v. State, 23 S.W.2d 405, 408-09 (Tex. Crim. App. 1975) (reversible error where defendant was only allowed to ask general questions about racial prejudice and case-specific question was prohibited); State v. Thornton, 963 A.2d 1099, 1108 (Conn. Ct. App. 2009) ("In a case concerning a male on male, or female on female, sexual assault, relevant questions that delve into prejudices, beliefs and attitudes toward homosexuality should be permitted."); but cf. Ewing v. State, 157 S.W.3d 863, 866 (Tex.App. -- Fort Worth 2005, no pet.) (question asking whether jurors would lean toward conviction if the defendant was a homosexual was an improper fishing expedition). A "yes" answer -- that the juror would not be fair to the defendant -- looks like bias as a matter of law to me.

I would even think a commitment question along the lines of "would the juror automatically disbelieve the defendant because she was a homosexual" would be proper.