1003. Rape of Unconscious Woman or Spouse
The defendant is charged [in Count ______] with raping (a woman/ his wife) who was unconscious of the nature of the act.
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 was unable to resist because she was unconscious of the nature of the act;
4. The defendant knew that the woman was unable to resist because she was unconscious of the nature of the act.
Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. [Ejaculation is not required.]
A woman is unconscious of the nature of the act if she is (unconscious or asleep/ [or] not aware that the act is occurring/ [or] not aware of the essential characteristics of the act because the perpetrator tricked, lied to, or concealed information from her/ [or] not aware of the essential characteristics of the act because the perpetrator fraudulently represented that the sexual penetration served a professional purpose when it served no professional purpose).
The court has a sua sponte duty to give an instruction defining the elements of the crime.
If spousal rape is charged, include the appropriate language throughout the instruction to indicate that the parties were married.
Select the appropriate language defining "unconscious of the nature of the act" based on the facts of the case.
CALCRIM No. 1001, Rape or Spousal Rape in Concert, may be given in conjunction with this instruction, if appropriate.
Elements. Pen. Code, §§ 261(a)(4), 262(a)(3).
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].
Unconscious of Nature of Act. People v. Howard (1981) 117 Cal.App.3d 53, 55 [172 Cal.Rptr. 539] [total unconsciousness is not required]; see Boro v. Superior Court (1985) 163 Cal.App.3d 1224, 1229-1231 [210 Cal.Rptr. 122] [rape victim not unconscious of nature of act; fraud in the inducement].
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Sex Offenses and Crimes Against Decency, §§ 1-8, 15.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.20[a],  (Matthew Bender).
The statutory language describing unconsciousness includes "was not aware, knowing, perceiving, or cognizant that the act occurred." (See Pen. Code, §§ 261(a)(4)(B)((D), 262(a)(3)(B), (C).) The committee did not discern any difference among the statutory terms and therefore used "aware" in the instruction. If there is an issue over a particular term, that term should be inserted in the instruction.
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 of Unconscious Woman. Pen. Code, §§ 663, 261(a)(4).
Attempted Rape of Unconscious Spouse. Pen. Code, §§ 663, 262(a)(3).
Neither a woman's actual "advance consent" nor a man's belief in "advance consent" eliminates the wrongfulness of a man's conduct in knowingly depriving an unconscious woman of her freedom of choice both at the initiation of and during sexual intercourse. A person who commits the prohibited act necessarily acts with a wrongful intent. (People v. Dancy (2002) 102 Cal.App.4th 21, 37 [124 Cal.Rptr.2d 898].)
See the Related Issues section in CALCRIM No. 1000, Rape or Spousal Rape by Force, Fear, or Threats.
(New January 2006)