Criminal Law

1002. Rape of Intoxicated Woman or Spouse

The defendant is charged [in Count ______] with raping (a woman/ his wife) while she was intoxicated.

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 effect of (a/an) (intoxicating/anesthetic/controlled) substance prevented the woman from resisting;


4. The defendant knew or reasonably should have known that the effect of (a/an) (intoxicating/anesthetic/controlled) substance prevented the woman from resisting.

Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. [Ejaculation is not required.]

A person is prevented from resisting if he or she is so intoxicated that he or she cannot give legal consent. In order to give legal consent, a person must be able to exercise reasonable judgment. In other words, the person must be able to understand and weigh the physical nature of the act, its moral character, and probable consequences. Legal consent is consent given freely and voluntarily by someone who knows the nature of the act involved.

[ <If appropriate, insert controlled substance> (is/are) [a] controlled substance[s].]

<Defense: Reasonable Belief Capable of Consent>

[The defendant is not guilty of this crime if he actually and reasonably believed that the woman was capable of consenting to sexual intercourse, even if that belief was wrong. The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the woman was capable of consenting. 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 the crime.

A space is provided to identify controlled substances, if the parties agree.

Defenses—Instructional Duty

The court has a sua sponte duty to instruct on the defense of reasonable belief the person was capable of consent if there is sufficient evidence to support the defense. (See People v. Giardino (2000) 82 Cal.App.4th 454, 472 [98 Cal.Rptr.2d 315].)

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)(3), 262(a)(2).

Consent Defined. Pen. Code, § 261.6.

Controlled Substances(Health & Safety Code, §§ 11054-11058; see People v. Avila (2000) 80 Cal.App.4th 791, 798, fn. 7 [95 Cal.Rptr.2d 651].

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].

Anesthetic Effect. See People v. Avila (2000) 80 Cal.App.4th 791, 798-799 [95 Cal.Rptr.2d 651] [in context of sodomy].

General Intent and Knowledge Requirements. People v. Linwood (2003) 105 Cal.App.4th 59, 67-72 [129 Cal.Rptr.2d 73] [statute is not impermissibly vague and uses appropriate criminal negligence standard].

"Prevented From Resisting" Defined. People v. Giardino (2000) 82 Cal.App.4th 454, 465-466 [98 Cal.Rptr.2d 315].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Sex Offenses and Crimes Against Decency, §§ 1-8, 16, 18.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, §§ 142.20[1][a], [5], 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.

Lesser Included Offenses

Attempted Rape. Pen. Code, §§ 663, 261(a)(3).

Attempted Rape of Intoxicated Spouse. Pen. Code, §§ 663, 262(a)(2).

Related Issues

Administering Drugs to Assist Commission of Felony

A person who administers to someone else any chloroform, ether, laudanum, or any controlled substance, anesthetic, or intoxicating agent, with the intent to enable or assist himself or herself or any other person to commit a felony is guilty of a felony. (Pen. Code, § 222.)

See the Related Issues section to CALCRIM No. 1000, Rape or Spousal Rape by Force, Fear, or Threats

(New January 2006)