California Criminal Jury Instructions (CALCRIM) (2017)
1002. Rape of Intoxicated Woman or SpouseDownload PDF
1002.Rape of Intoxicated Woman or Spouse (Pen. Code,
§§ 261(a)(3), 262(a)(2))
The defendant is charged [in Count ] with raping (a woman/his
wife) while she was intoxicated [in violation of <insert
appropriate code section[s]>].
To prove that the defendant is guilty of this crime, the People must
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]
<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.]
New January 2006; Revised August 2012
The court has a sua sponte duty to give an instruction deﬁning the elements of the
A space is provided to identify controlled substances, if the parties agree.
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].)
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].
• 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].
• 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].
• This Instruction Upheld. People v. Smith (2010) 191 Cal.App.4th 199,
204–205 [120 Cal.Rptr.3d 52].
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[a], , 142.23[e] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
Gender-speciﬁc language is used because rape usually occurs between a man and a
CALCRIM No. 1002 SEX OFFENSES
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).
• Assault. Pen. Code, § 240.
• 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 offense of attempted rape].
Administering Drugs to Assist Commission of Felony
Aperson 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.
SEX OFFENSES CALCRIM No. 1002