CALCRIM No. 1002. Rape of Intoxicated Woman or Spouse (Pen. Code, §§ 261(a)(3), 262(a)(2))
Judicial Council of California Criminal Jury Instructions (2020 edition)Download 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
[<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
New January 2006; Revised August 2012, March 2018
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.
Defenses - Instructional Duty
There is no sua sponte duty to instruct on the defense of reasonable belief that the
person was capable of consent. (People v. Lujano (2017) 15 Cal.App.5th 187 [223
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. Lujano (2017) 15 Cal.App.5th
187, 192-193 [223 Cal.Rptr.3d 105] [CALCRIM 1032 has correct definition];
People v. Giardino (2000) 82 Cal.App.4th 454, 465-466 [98 Cal.Rptr.2d 315].
• Reasonable Belief in Capacity to Consent. People v. Lujano (2017) 15
Cal.App.5th 187, 191-192 [223 Cal.Rptr.3d 105]; People v. Giardino (2000) 82
Cal.App.4th 454, 471-472 [98 Cal.Rptr.2d 315].
• This Instruction Upheld. People v. Smith (2010) 191 Cal.App.4th 199, 204-205
[120 Cal.Rptr.3d 52].
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).
CALCRIM No. 1002 SEX OFFENSES
• 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
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.
6 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 1-8, 18, 20, 178.
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).
SEX OFFENSES CALCRIM No. 1002