Criminal Law

1034. Sodomy of a Disabled Person

The defendant is charged [in Count ______] with sodomy of a mentally or physically disabled person.

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 other person had a (mental disorder/developmental or physical disability) that prevented (him/her) from legally consenting;


3. The defendant knew or reasonably should have known that the other person had a (mental disorder/ developmental or physical disability) that prevented (him/ her) from legally consenting.

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 legally consenting if he or she is unable to understand the act, its nature, and possible consequences.

Bench Notes

Instructional Duty

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

Related Instructions

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


Elements. Pen. Code, § 286(g).

Prevented from Legally Consenting, Defined. People v. Boggs (1930) 107 Cal.App. 492, 495-496 [290 P.618].

Sodomy Defined. Pen. Code, § 286(a); see People v. Singh (1928) 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

Attempted Sodomy of Disabled Person. Pen. Code, §§ 664, 286(g).

Related Issues

See the Related Issues section under CALCRIM No. 1030, Sodomy by Force, Fear, or Threats, and CALCRIM No. 1004, Rape of a Disabled Woman.

(New January 2006)