Criminal Law

1005. Rape by Fraud

The defendant is charged [in Count ______] with rape by fraud.

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 submitted to the intercourse because she believed the defendant was her husband;


4. The defendant tricked her, lied to her, [used an artifice or pretense,] or concealed information from her, intending to make her believe they were married to each other.

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

Bench Notes

Instructional Duty

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


Elements. Pen. Code, § 261(a)(5).

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, 13.

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

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

(New January 2006)