Criminal Law

1000. Rape or Spousal Rape by Force, Fear, or Threats

The defendant is charged [in Count ______] with rape [of his wife] by force.

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;


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 official 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 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 to the defendant that she objected to the act of intercourse and attempted to stop the act;

2. She communicated her objection through words or acts that a reasonable person would have understood as showing her lack of consent;


3. The defendant forcibly continued the act of intercourse despite her objection.]

[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. The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the woman consented. If the People have not met this burden, you must find the defendant not guilty.]

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 . . ."

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.



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).

Sexual Intercourse 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. Griffin (2004) 33 Cal.4th 1015, 1023-1024 [16 Cal.Rptr.3d 891, 94 P.3d 1089].

Mistake of Fact Regarding Consent. People v. Mayberry (1975) 15 Cal.3d 143, 153-158 [125 Cal.Rptr. 745, 542 P.2d 1337]; People v. May (1989) 213 Cal.App.3d 118, 124 [261 Cal.Rptr. 502].

Withdrawal of Consent. In re John Z. (2003) 29 Cal.4th 756, 760 [128 Cal.Rptr.2d 783, 60 P.3d 183].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Sex Offenses and Crimes Against Decency, §§ 1-12.

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).

Spousal Rape:

Elements. Pen. Code, § 262(a)(1), (4) & (5).

Duress Defined. Pen. Code, § 262(c).

Menace Defined. Pen. Code, § 262(d).

Mistake of Fact Regarding Consent. People v. Burnham (1986) 176 Cal.App.3d 1134, 1148-1149 [222 Cal.Rptr. 630]; see People v. Mayberry (1975) 15 Cal.3d 143, 153-158 [125 Cal.Rptr. 745, 542 P.2d 1337]; People v. May (1989) 213 Cal.App.3d 118, 124 [261 Cal.Rptr. 502].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Sex Offenses and Crimes Against Decency, § 18.

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).


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 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. (2003) 29 Cal.4th 756, 760 [128 Cal.Rptr.2d 783, 60 P.3d 183].)

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(c) [duress] and (d) [menace]; People v. Iniguez (1994) 7 Cal.4th 847, 856-857 [30 Cal.Rptr.2d 258, 872 P.2d 1183] [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. Griffin (2004) 33 Cal.4th 1015, 1023-1024 [16 Cal.Rptr.3d 891, 94 P.3d 1089].) In People v. Griffin, supra, 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. Griffin, supra, 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 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].)

Reporting Requirement for Spousal Rape

The threshold requirement that an allegation of spousal rape be corroborated to avoid the reporting requirement (see Pen. Code, § 262(b)) is not a factual determination for the jury. (People v. Garcia (2001) 89 Cal.App.4th 1321, 1336-1337 [107 Cal.Rptr.2d 889].)

Resistance Is Not Required

Resistance by the victim is not required for rape; any instruction to that effect is erroneous. (People v. Barnes (1986) 42 Cal.3d 284, 292, 302 [228 Cal.Rptr. 228, 721 P.2d 110].)

(New January 2006)