1019. Oral Copulation of a Disabled Person

The defendant is charged [in Count ______] with oral copulation of a mentally or physically disabled person.

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant committed an act of oral copulation with someone else;

2. The other person had a (mental disorder/developmental or physical disability) that prevented (him/her) from legally consenting;

AND

3. The defendant knew or reasonably should have known that the other person had a (mental disorder/ developmental or physical disability) that prevented (him/ her) from legally consenting.

Oral copulation is any contact, no matter how slight, between the mouth of one person and the sexual organ or anus of another person. Penetration is not required.

A person is prevented from legally consenting if he or she is unable to understand the act, its nature, and possible consequences.

Bench Notes

Instructional Duty

The court has a sua sponte duty to give an instruction defining the elements of the crime.

Related Instructions

CALCRIM No. 1016, Oral Copulation in Concert, may be given in conjunction with this instruction, if appropriate.

Authority

Elements. Pen. Code, § 288a(a), (g).

Consent Defined. Pen. Code, § 261.6; People v. Boggs (1930) 107 Cal.App. 492, 495-496 [290 P. 618].

Oral Copulation Defined. People v. Grim (1992) 9 Cal.App.4th 1240, 1242-1243 [11 Cal.Rptr.2d 884].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Sex Offenses and Crimes Against Decency, §§ 31-33, 35.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.20[1][c], [5] (Matthew Bender).

Lesser Included Offenses

Attempted Oral Copulation. Pen. Code, §§ 663, 288a.

Related Issues

See the Related Issues Section to CALCRIM No. 1015, Oral Copulation by Force, Fear, or Threats, and CALCRIM No. 1004, Rape of a Disabled Woman.

(New January 2006)