CALCRIM No. 1000. Rape or Spousal Rape by Force, Fear, or Threats (Pen. Code, § 261(a)(2), (6) & (7))

Judicial Council of California Criminal Jury Instructions (2020 edition)

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A. AGAINST ADULT OR MINOR
(i) Rape
1000.Rape or Spousal Rape by Force, Fear, or Threats (Pen.
Code, § 261(a)(2), (6) & (7))
The defendant is charged [in Count ] with rape [of his wife] by
force [in violation of Penal Code section 261(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant had sexual intercourse with a woman;
2. He and the woman were (not married/married) to each other at
the time of the intercourse;
3. The woman did not consent to the intercourse;
AND
4. The defendant accomplished the intercourse by
<Alternative 4A - force or fear>
[force, violence, duress, menace, or fear of immediate and unlawful
bodily injury to the woman or to someone else.]
<Alternative 4B - future threats of bodily harm>
[threatening to retaliate in the future against the woman or someone
else when there was a reasonable possibility that the defendant would
carry out the threat. A threat to retaliate is a threat to kidnap, falsely
imprison, or inflict extreme pain, serious bodily injury, or death.]
<Alternative 4C - threat of offıcial action>
[threatening to use the authority of a public office to incarcerate,
arrest, or deport someone. A public official is a person employed by
federal, state, or local government who has authority to incarcerate,
arrest, or deport. The woman must have reasonably believed that the
defendant was a public official even if he was not.]
Sexual intercourse means any penetration, no matter how slight, of the
vagina or genitalia by the penis. [Ejaculation is not required.]
[To consent, a woman must act freely and voluntarily and know the
nature of the act.]
[A woman who initially consents to an act of intercourse may change her
749
mind during the act. If she does so, under the law, the act of intercourse
is then committed without her consent if:
1. She communicated through words or acts to the defendant that
she no longer consented to the act of intercourse;
2. A reasonable person would have understood that her words or
acts expressed her lack of consent;
AND
3. The defendant forcibly continued the act of intercourse despite
her objection.]
[It is not required that she physically resist or fight back in order to
communicate her lack of consent.]
[Evidence that the defendant and the woman (dated/were married/had
been married) is not enough by itself to constitute consent.]
[Evidence that the woman (requested/suggested/communicated) that the
defendant use a condom or other birth control device is not enough by
itself to constitute consent.]
[Intercourse is accomplished by force if a person uses enough physical
force to overcome the woman’s will.]
[Duress means a direct or implied threat of force, violence, danger, or
retribution that would cause a reasonable person to do [or submit to]
something that she would not do [or submit to] otherwise. When
deciding whether the act was accomplished by duress, consider all the
circumstances, including the woman’s age and her relationship to the
defendant.]
[Retribution is a form of payback or revenge.]
[Menace means a threat, statement, or act showing an intent to injure
someone.]
[Intercourse is accomplished by fear if the woman is actually and
reasonably afraid [or she is actually but unreasonably afraid and the
defendant knows of her fear and takes advantage of it].]
[A woman must be alive at the time of the sexual intercourse for the
crime of rape to occur.]
<Defense: Reasonable Belief in Consent>
[The defendant is not guilty of rape if he actually and reasonably
believed that the woman consented to the intercourse [and actually and
reasonably believed that she consented throughout the act of
intercourse]. The People have the burden of proving beyond a
reasonable doubt that the defendant did not actually and reasonably
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750
believe that the woman consented. If the People have not met this
burden, you must find the defendant not guilty.]
New January 2006; Revised February 2013, February 2014
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of rape
or spousal rape. If spousal rape is charged, the court must include the appropriate
bracketed language throughout the instruction to indicate that the parties were
married.
The court should select the appropriate alternative in element 4 describing how the
sexual intercourse was allegedly accomplished.
Rape requires that the victim be alive at the moment of intercourse. (People v.
Ramirez (1990) 50 Cal.3d 1158, 1175-1177 [270 Cal.Rptr. 286, 791 P.2d 965];
People v. Carpenter (1997) 15 Cal.4th 312, 391 [63 Cal.Rptr.2d 1, 935 P.2d 708].)
Intercourse with a deceased victim may constitute attempted rape if the defendant
intended to rape a live victim. (People v. Kelly (1992) 1 Cal.4th 495, 524-526 [3
Cal.Rptr.2d 677, 822 P.2d 385].) If this is an issue in the case, give the bracketed
sentence that begins with “A woman must be alive . . .”
The defendant must continue to actually and reasonably believe in the victim’s
consent throughout the act. If the act of intercourse begins consensually and the
victim then changes her mind, the victim must clearly and unequivocally
communicate to the defendant her withdrawal of consent to the act. If, however, the
defendant initiates the use of nonconsensual duress, menace, or force during the act,
the victim’s subsequent withdrawal of consent to the act may be inferred from the
circumstances and need not be expressed. (People v. Ireland (2010) 188 Cal.App.4th
328, 338 [114 Cal.Rptr.3d 915]). If there is an issue regarding the defendant’s
continued belief in the victim’s consent, give the second optional first sentence in
the definition of “Defense: Reasonable Belief in Consent.”
Defenses - Instructional Duty
The court has a sua sponte duty to instruct on the defense of reasonable belief in
consent if there is “substantial evidence of equivocal conduct that would have led a
defendant to reasonably and in good faith believe consent existed where it did not.”
(See People v. Williams (1992) 4 Cal.4th 354, 362 [14 Cal.Rptr.2d 441, 841 P.2d
961]; People v. Mayberry (1975) 15 Cal.3d 143, 153-158 [125 Cal.Rptr. 745, 542
P.2d 1337].)
Related Instructions
CALCRIM No. 1001, Rape or Spousal Rape in Concert, may be given in
conjunction with this instruction, if appropriate.
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751
AUTHORITY
Rape:
• Elements. Pen. Code, § 261(a)(2), (6) & (7).
• Consent Defined. Pen. Code, §§ 261.6, 261.7.
• Duress Defined. Pen. Code, § 261(b).
• Menace Defined. Pen. Code, § 261(c).
• Penetration Defined. Pen. Code, § 263; People v. Karsai (1982) 131
Cal.App.3d 224, 233-234 [182 Cal.Rptr. 406], disapproved on other grounds by
People v. Jones (1988) 46 Cal.3d 585, 600 [250 Cal.Rptr. 635, 758 P.2d 1165].
• Fear Defined. People v. Iniguez (1994) 7 Cal.4th 847, 856-857 [30
Cal.Rptr.2d 258, 872 P.2d 1183] [level of fear].
• Force Defined. People v. Griffın (2004) 33 Cal.4th 1015, 1023-1024 [16
Cal.Rptr.3d 891, 94 P.3d 1089].
• Mistake of Fact Regarding Consent. People v. Mayberry,supra, 15 Cal.3d at
pp. 153-158; People v. May (1989) 213 Cal.App.3d 118, 124 [261 Cal.Rptr.
502].
• Circumstances Requiring Mayberry Instruction. People v. Dominguez (2006)
39 Cal.4th 1141 [47 Cal.Rptr.3d 575, 140 P.3d 866].
• Withdrawal of Consent. In re John Z. (2003) 29 Cal.4th 756, 760 [128
Cal.Rptr.2d 783, 60 P.3d 183].
• Inferring Lack of Consent From Circumstances. People v. Ireland (2010) 188
Cal.App.4th 328, 338 [114 Cal.Rptr.3d 915].
• Victim Need Not Resist. People v. Barnes (1986) 42 Cal.3d 284, 297-302 [228
Cal.Rptr. 228, 721 P.2d 110].
Spousal Rape:
• Elements. Pen. Code, § 262(a)(1), (4) & (5).
• Duress Defined. Pen. Code, § 262(b).
• Menace Defined. Pen. Code, § 261(c).
• Mistake of Fact Regarding Consent. People v. Burnham (1986) 176
Cal.App.3d 1134, 1148-1149 [222 Cal.Rptr. 630, 542 P.2d 1337]; see People v.
Mayberry,supra, 15 Cal.3d at pp. 153-158; People v. May (1989) 213
Cal.App.3d 118, 124 [261 Cal.Rptr. 502].
COMMENTARY
Gender-specific language is used because rape usually occurs between a man and a
woman. In keeping with plain English principles, the committee used those terms to
make the instruction clear and concrete.
Penal Code section 262 requires that the intercourse be “against the person’s [or
victim’s] will.” (Pen. Code, § 262(a)(1), (4) & (5).) “Against the will” has been
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defined as without consent. (People v. Key (1984) 153 Cal.App.3d 888, 895 [203
Cal.Rptr. 144]; see also People v. Young (1987) 190 Cal.App.3d 248, 257 [235
Cal.Rptr. 361].)
“[T]he offense of forcible rape occurs when, during apparently consensual
intercourse, the victim expresses an objection and attempts to stop the act and the
defendant forcibly continues despite the objection . . . . ‘[I]t is immaterial at what
point the victim withdraws her consent, so long as that withdrawal is communicated
to the male and he thereafter ignores it.’ ” (In re John Z.,supra, 29 Cal.4th at p.
760.)
The instruction includes definitions of “duress,” “menace,” and the sufficiency of
“fear” because those terms have meanings in the context of rape that are technical
and may not be readily apparent to jurors. (See Pen. Code, §§ 262(b) [duress] and
(c) [menace]; People v. Iniguez,supra, 7 Cal.4th at pp. 856-857 [fear].)
The term “force” as used in the rape statutes does not have a specialized meaning
and court is not required to define the term sua sponte. (People v. Griffın,supra, 33
Cal.4th at pp. 1023-1024.) In People v. Griffın, the Supreme Court further stated,
Nor is there anything in the common usage definitions of the term “force,” or in
the express statutory language of section 261 itself, that suggests force in a
forcible rape prosecution actually means force “substantially different from or
substantially greater than” the physical force normally inherent in an act of
consensual sexual intercourse. [People v. Cicero (1984) 157 Cal.App.3d 465,
474 [204 Cal.Rptr. 582].] To the contrary, it has long been recognized that “in
order to establish force within the meaning of section 261, subdivision (2), the
prosecution need only show the defendant used physical force of a degree
sufficient to support a finding that the act of sexual intercourse was against the
will of the [victim].” (People v. Young (1987) 190 Cal.App.3d 248, 257-258
[235 Cal.Rptr. 361] . . . .)
(Ibid. [emphasis in original].)
The committee has provided a bracketed definition of “force,” consistent with
People v. Griffın,supra, 33 Cal.4th at pp. 1023-1024, that the court may give on
request.
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
• Assault With Intent to Commit Rape. Pen. Code, § 220; In re Jose M. (1994)
21 Cal.App.4th 1470, 1477 [27 Cal.Rptr.2d 55]; People v. Moran (1973) 33
Cal.App.3d 724, 730 [109 Cal.Rptr. 287] [where forcible rape is charged].
• Attempted Rape. Pen. Code, §§ 663, 261.
• Attempted Spousal Rape. Pen. Code, §§ 663, 262.
• Battery. Pen. Code, § 242; People v. Guiterrez (1991) 232 Cal.App.3d 1624,
1636 [284 Cal.Rptr. 230], disapproved on other grounds in People v. Cromer
(2001) 24 Cal.4th 889, 901, fn. 3 [103 Cal.Rptr.2d 23, 15 P.3d 243]; but see
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People v. Marshall (1997) 15 Cal.4th 1, 38-39 [61 Cal.Rptr.2d 84, 931 P.2d 262]
[battery not a lesser included of attempted rape].
RELATED ISSUES
Consent Obtained by Fraudulent Representation
A person may also induce someone else to consent to engage in sexual intercourse
by a false or fraudulent representation made with an intent to create fear, and which
does induce fear and would cause a reasonable person to act contrary to his or her
free will. (Pen. Code, § 266c.) While section 266c requires coercion and fear to
obtain consent, it does not involve physical force or violence. (See People v.
Cardenas (1994) 21 Cal.App.4th 927, 937-938 [26 Cal.Rptr.2d 567] [rejecting
defendant’s argument that certain acts were consensual and without physical force,
and were only violations of section 266c].)
Minor Victim and Unanimity
“Generic testimony” by a victim who was 15 and 16 years old does not deprive a
defendant of a due process right to defend against the charges. If the victim
“specifies the type of conduct involved, its frequency, and that the conduct occurred
during the limitation period, nothing more is required to establish the substantiality
of the victim’s testimony.” (People v. Matute (2002) 103 Cal.App.4th 1437, 1446
[127 Cal.Rptr.2d 472] [affirming conviction for multiple counts of rape under Pen.
Code, § 261(a)(2); citing People v. Jones (1990) 51 Cal.3d 294, 316 [270 Cal.Rptr.
611, 792 P.2d 643]].)
When there is no reasonable likelihood the jury will disagree on particular acts of
molestation, and the only question is whether or not the defendant in fact committed
all of them, the jury should be given a modified unanimity instruction which, in
addition to allowing a conviction if the jurors unanimously agree on specific acts,
also allows a conviction if the jury unanimously agrees the defendant committed all
the acts described by the victim. (People v. Matute, supra, 103 Cal.App.4th at p.
1448; People v. Jones, supra, 51 Cal.3d at pp. 321-322; see CALCRIM No. 3501,
Unanimity: When Generic Testimony of Offense Presented.)
Mistake-of-Fact Defense and Developmental Disability
A defendant cannot base a reasonable-belief-of-consent defense on the fact that he is
developmentally disabled and, as a result, did not act as a reasonable person would
have acted. (People v. Castillo (1987) 193 Cal.App.3d 119, 124-125 [238 Cal.Rptr.
207].)
Multiple Rapes
A penetration, however slight, completes the crime of rape; therefore a separate
conviction is proper for each penetration that occurs. (People v. Harrison (1989) 48
Cal.3d 321, 329-334 [256 Cal.Rptr. 401, 768 P.2d 1078].)
Resistance Is Not Required
Resistance by the victim is not required for rape; any instruction to that effect is
erroneous. (People v. Barnes,supra, 42 Cal.3d at pp. 292, 302.)
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SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 1-15, 20, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, §§ 142.20[1][a], [2], 142.23[1][e] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
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