California Criminal Jury Instructions (CALCRIM) (2017)

1005. Rape by Fraud

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1005.Rape by Fraud (Pen. Code, § 261(a)(5))
The defendant is charged [in Count ] with rape by fraud [in
violation of Penal Code section 261(a)(5)].
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 defendant 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 someone she knew, other than the defendant;
AND
4. The defendant tricked her, lied to her, [used an artifice or
pretense,] or concealed information from her, intending to make
her believe he was someone she knew, while intending to hide his
own identity.
Sexual intercourse means any penetration, no matter how slight, of the
vagina or genitalia by the penis. [Ejaculation is not required.]
New January 2006; Revised February 2015
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Penal Code section 261(a)(5) was amended effective September 9, 2013, in
response to People v. Morales (2013) 212 Cal.App.4th 583 [150 Cal.Rptr.3d 920].
AUTHORITY
• Elements. Pen. Code, § 261(a)(5).
• 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].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 16–17.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.20[1][a], [6] (Matthew Bender).
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Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
COMMENTARY
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.
1006–1014. Reserved for Future Use
CALCRIM No. 1005 SEX OFFENSES
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