CALCRIM No. 1004. Rape of a Disabled Woman
Judicial Council of California Criminal Jury Instructions (2017 edition)Download PDF
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
1. The defendant had sexual intercourse with a woman;
2. He and the woman were not married to each other at the time of
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
The court has a sua sponte duty to give an instruction deﬁning the elements of the
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 [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
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[a],  (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
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.
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.
CALCRIM No. 1004 SEX OFFENSES
© Judicial Council of California.