CALCRIM No. 1003. Rape of Unconscious Woman (Pen. Code, § 261(a)(4))

Judicial Council of California Criminal Jury Instructions (2023 edition)

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1003.Rape of Unconscious Woman (Pen. Code, § 261(a)(4))
The defendant is charged [in Count ] with raping a woman who
was unconscious of the nature of the act [in violation of
<insert appropriate code section[s]>].
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 was unable to resist because she was unconscious of
the nature of the act;
3. 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).
New January 2006; Revised August 2012, August 2013, March 2022
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
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.
Select the appropriate language defining “unconscious of the nature of the act”
based on the facts of the case.
Related Instructions
CALCRIM No. 1001, Rape in Concert, may be given in conjunction with this
instruction, if appropriate.
Elements. Pen. Code, § 261(a)(4).
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].
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].
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].
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).) 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.
Attempted Rape of Unconscious Woman. Pen. Code, §§ 663, 261(a)(4).
Advance Consent
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
See the Related Issues section in CALCRIM No. 1000, Rape by Force, Fear, or
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 1-8, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.20[1][a], [5] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:18, 12:19
(The Rutter Group).

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