CALCRIM No. 1004. Rape of a Disabled Woman (Pen. Code, § 261(a)(1))

Judicial Council of California Criminal Jury Instructions (2023 edition)

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1004.Rape of a Disabled Woman (Pen. Code, § 261(a)(1))
The defendant is charged [in Count ] with raping a mentally or
physically disabled woman [in violation of Penal Code section 261(a)(1)].
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.
New January 2006; Revised August 2012, March 2022
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
Related Instructions
CALCRIM No. 1001, 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 [290 P. 618].
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].
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].
This Instruction Completely Explains Inability to Give Legal Consent. People v.
Miranda (2011) 199 Cal.App.4th 1403, 1419, fn. 13 [132 Cal.Rptr.3d 315] [in
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. Pen. Code, §§ 663, 261.
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 by Force, Fear, or
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 1-8, 19, 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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