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
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;
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
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
The court has a sua sponte duty to give an instruction deﬁning the elements of the
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].
• 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].
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[a],  (Matthew Bender).