Criminal Law

1004. Rape of a Disabled Woman

The defendant is charged [in Count ______] with raping a mentally or physically disabled woman.

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 to each other at the time of the intercourse;

3. The woman had a (mental disorder/developmental or physical disability) that prevented her from legally consenting;


4. The defendant knew or reasonably should have known that the woman had a (mental disorder/developmental or physical disability) that prevented her from legally consenting.

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

A woman is prevented from legally consenting if she is unable to understand the act, its nature, and possible consequences.

Bench Notes

Instructional Duty

The court has a sua sponte duty to give an instruction defining the elements of the crime.

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)(1).

Consent Defined. Pen. Code, § 261.6; People v. Boggs (1930) 107 Cal.App. 492, 495-496.

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].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Sex Offenses and Crimes Against Decency, §§ 1-8, 17.

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

Related Issues

No Duty to Define "Developmental Disability"

There is no sua sponte duty to define "developmental disability" under Welfare and Institutions Code section 4512(a) or Penal Code section 1370.1(a)(1). The Legislature did not intend to limit this phrase to such technical medical or legal definitions, although a pinpoint instruction may be requested if it helps the jury in any particular case. (People v. Mobley (1999) 72 Cal.App.4th 761, 781-783 [85 Cal.Rptr.2d 474] [in context of oral copulation].)

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

(New January 2006)