CALCRIM No. 1005. Rape by Fraud (Pen. Code, § 261(a)(5))

Judicial Council of California Criminal Jury Instructions (2023 edition)

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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 woman submitted to the intercourse because she believed the
defendant was someone she knew, other than the defendant;
AND
3. 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, March 2022
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, as amended by Assembly Bill 1171 (Stats. 2021, ch. 626),
became effective on January 1, 2022. If the defendant’s alleged act occurred before
this date, the court should give the prior version of this instruction.
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].
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.
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RELATED ISSUES
See the Related Issues section to CALCRIM No. 1000, Rape by Force, Fear, or
Threats.
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).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:18, 12:19
(The Rutter Group).
1006-1014. Reserved for Future Use
SEX OFFENSES CALCRIM No. 1005
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