Justia Criminal Law Center California Criminal Jury Instructions (CALCRIM) (2023) Sex Offenses CALCRIM No. 1000. Rape by Force, Fear, or Threats (Pen. Code, § 261(a)(2), (6) & (7))

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

Judicial Council of California Criminal Jury Instructions (2023 edition)

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A. AGAINST ADULT OR MINOR

(i) Rape

1000.Rape by Force, Fear, or Threats (Pen. Code, § 261(a)(2), (6)

& (7))

The defendant is charged [in Count ] with rape 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. The woman did not consent to the intercourse;

AND

3. The defendant accomplished the intercourse by

[force, violence, duress, menace, or fear of immediate and unlawful

bodily injury to the woman or to someone else.]

[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.]

[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:

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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

believe that the woman consented. If the People have not met this

burden, you must find the defendant not guilty.]

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New January 2006; Revised February 2013, February 2014, March 2022

BENCH NOTES

Instructional Duty

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

rape.

Penal Code section 261, as amended by Assembly Bill 1171 (Stats. 2021, ch. 626),

became effective on January 1, 2022. If the defendant’s alleged act occurred before

this date, the court should give the prior version of this instruction.

The court should select the appropriate alternative in element 3 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 in Concert, may be given in conjunction with this

instruction, if appropriate.

AUTHORITY

• Elements. Pen. Code, § 261(a)(2), (6) & (7).

• Consent Defined. Pen. Code, §§ 261.6, 261.7.

• Duress Defined. Pen. Code, § 261(b).

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• 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].

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.

“[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

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,

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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.

• 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

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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.)

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 §§ 12:18, 12:19

(The Rutter Group).

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Page last reviewed May 2023