Criminal Law

1032. Sodomy of an Intoxicated Person

The defendant is charged [in Count ______] with sodomy of a person while that person was intoxicated.

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant committed an act of sodomy with another person;

2. The effect of (a/an) (intoxicating/anesthetic/controlled) substance prevented the other person from resisting;


3. The defendant knew or reasonably should have known that the effect of that substance prevented the other person from resisting.

Sodomy is any penetration, no matter how slight, of the anus of one person by the penis of another person. [Ejaculation is not required.]

A person is prevented from resisting if he or she is so intoxicated that he or she cannot give legal consent. In order to give legal consent, a person must be able to exercise reasonable judgment. In other words, the person must be able to understand and weigh the physical nature of the act, its moral character, and probable consequences. Legal consent is consent given freely and voluntarily by someone who knows the nature of the act involved.

[<If appropriate, insert controlled substance[s]> (is/are) [a] controlled substance[s].]

<Defense: Reasonable Belief Capable of Consent>

[The defendant is not guilty of this crime if (he/she) actually and reasonably believed that the other person was capable of consenting to the act, even if that belief was wrong. The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the other person was capable of consenting. If the People have not met this burden, you must find the defendant not guilty.]

Bench Notes

Instructional Duty

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

A space is provided to identify controlled substances if the parties agree that there is no issue of fact.

Defenses—Instructional Duty

The court has a sua sponte duty to instruct on the defense of reasonable belief the person was capable of consent if there is sufficient evidence to support the defense. (See People v. Giardino (2000) 82 Cal.App.4th 454, 472 [98 Cal.Rptr.2d 315].)

Related Instructions

CALCRIM No. 1031, Sodomy in Concert, may be given in conjunction with this instruction if appropriate.


Elements. Pen. Code, § 286(i); People v. Avila (2000) 80 Cal.App.4th 791, 802-803 [95 Cal.Rptr.2d 651].

Anesthetic Effect Defined. People v. Avila (2000) 80 Cal.App.4th 791, 798-799 [95 Cal.Rptr.2d 651].

Consent Defined. Pen. Code, § 261.6.

Controlled Substances Defined. Health & Safety Code, §§ 11054-11058; see People v. Avila (2000) 80 Cal.App.4th 791, 798, fn. 7 [95 Cal.Rptr.2d 651].

Prevented From Resisting Defined. See People v. Giardino (2000) 82 Cal.App.4th 454, 465-467 [in context of rape].

Sodomy Defined. Pen. Code, § 286(a); see People v. Singh (1923) 62 Cal.App. 450, 452 [217 P. 121] [ejaculation is not required].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Sex Offenses and Crimes Against Decency, §§ 26, 29.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.20[1][b], [5] (Matthew Bender).

Lesser Included Offenses

Assault. Pen. Code, § 240.

Attempted Sodomy of Intoxicated Person. Pen. Code, §§ 664, 286(i).

Battery. Pen. Code, § 242.

Related Issues

See the Related Issues section under CALCRIM No. 1030, Sodomy by Force, Fear, or Threats.

(New January 2006)