California Criminal Jury Instructions (CALCRIM) (2017)

1045. Sexual Penetration by Force, Fear, or Threats

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(iv) Sexual Penetration
1045.Sexual Penetration by Force, Fear, or Threats (Pen. Code,
§ 289(a)(1), (2), (g))
The defendant is charged [in Count ] with sexual penetration by
force [in violation of Penal Code section 289].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant committed an act of sexual penetration with
another person;
2. The penetration was accomplished by using (a/an) (foreign
object[,]/ [or] substance[,]/ [or] instrument[,]/ [or] device[,]/ [or]
unknown object);
3. The other person did not consent to the act;
AND
4. The defendant accomplished the act:
<Alternative 4A—force or fear>
[by force, violence, duress, menace, or fear of immediate and
unlawful bodily injury to another person.]
<Alternative 4B—future threats of bodily harm>
[by threatening to retaliate against someone when there was a
reasonable possibility that the defendant would carry out the threat.
Athreat to retaliate is a threat to kidnap, unlawfully restrain or
confine, or inflict extreme pain, serious bodily injury, or death.]
<Alternative 4C—threat of offıcial action>
[by threatening to use the authority of a public office to incarcerate,
arrest, or deport someone. A public official is a person employed by a
government agency who has authority to incarcerate, arrest, or
deport. The other person must have reasonably believed that the
defendant was a public official even if (he/she) was not.]
Sexual penetration means (penetration, however slight, of the genital or
anal opening of the other person/ [or] causing the other person to
penetrate, however slightly, the defendant’s or someone else’s genital or
anal opening/ [or] causing the other person to penetrate, however
slightly, his or her own genital or anal opening) for the purpose of
sexual abuse, arousal, or gratification.
[A foreign object, substance, instrument, or device includes any part of
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the body except a sexual organ.] [An unknown object includes any
foreign object, substance, instrument, or device, or any part of the body,
including a penis, if it is not known what object penetrated the
opening.]
[Penetration for sexual abuse means penetration for the purpose of
causing pain, injury, or discomfort.]
[In order to consent, a person must act freely and voluntarily and know
the nature of the act.]
[Evidence that the defendant and the other person (dated/were married/
had been married) is not enough by itself to constitute consent.]
[Evidence that the other person (requested/suggested/communicated)
that the defendant use a condom or other birth control device is not
enough by itself to constitute consent.]
[An act is accomplished by force if a person uses enough physical force
to overcome the other person’s will.]
[Duress means a direct or implied threat of force, violence, danger,
hardship, or retribution that is enough to cause a reasonable person of
ordinary sensitivity to do [or submit to] something that he or she would
not otherwise do [or submit to]. When deciding whether the act was
accomplished by duress, consider all the circumstances, including the
age of the other person and (his/her) relationship to the defendant.]
[Retribution is a form of payback or revenge.]
[Menace means a threat, statement, or act showing an intent to injure
someone.]
[An act is accomplished by fear if the other person is actually and
reasonably afraid [or (he/she) is actually but unreasonably afraid and
the defendant knows of (his/her) fear and takes advantage of it].]
<Defense: Reasonable Belief in Consent>
[The defendant is not guilty of forcible sexual penetration if (he/she)
actually and reasonably believed that the other person consented to the
act. The People have the burden of proving beyond a reasonable doubt
that the defendant did not actually and reasonably believe that the
other person consented. If the People have not met this burden, you
must find the defendant not guilty.]
New January 2006; Revised August 2016
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of
sexual penetration.
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The court should select the appropriate alternative in element 4 to instruct how the
sexual penetration was accomplished.
Defenses—Instructional Duty
The court has a sua sponte duty to instruct on the defense of reasonable belief in
consent if there is “substantial evidence of equivocal conduct that would have led a
defendant to reasonably and in good faith believe consent existed where it did not.”
(See People v. Williams (1992) 4 Cal.4th 354, 362 [14 Cal.Rptr.2d 441, 841 P.2d
961]; People v. Mayberry (1975) 15 Cal.3d 143, 153–158 [125 Cal.Rptr. 745, 542
P.2d 1337].)
AUTHORITY
• Elements. Pen. Code, § 289(a)(1), (2), (g).
Consent Defined. Pen. Code, §§ 261.6, 261.7.
• Duress Defined. People v. Leal (2004) 33 Cal.4th 999, 1004–1010 [16
Cal.Rptr.3d 869, 94 P.3d 1071]; People v. Pitmon (1985) 170 Cal.App.3d 38, 50
[216 Cal.Rptr. 221].
• Foreign Object, Substance, Instrument, or Device Defined. Pen. Code,
§ 289(k)(2); People v. Wilcox (1986) 177 Cal.App.3d 715, 717 [223 Cal.Rtpr.
170] [a finger is a “foreign object”].
• Menace Defined. Pen. Code, § 261(c) [in context of rape].
• Sexual Penetration Defined. Pen. Code, § 289(k); see People v. Quintana
(2001) 89 Cal.App.4th 1362, 1371 [108 Cal.Rptr.2d 235] [penetration of genital
opening refers to penetration of labia majora, not the vagina].
• Threatening to Retaliate Defined. Pen. Code, § 289(l).
• Unknown Object Defined. Pen. Code, § 289(k)(3).
• Fear Defined. People v. Reyes (1984) 153 Cal.App.3d 803, 810 [200 Cal.Rptr.
651]; People v. Iniguez (1994) 7 Cal.4th 847 [30 Cal.Rptr.2d 258, 872 P.2d
1183] [in context of rape].
• Force Defined. People v. Griffın (2004) 33 Cal.4th 1015, 1023–1024 [16
Cal.Rptr.3d 891, 94 P.3d 1089].
• Intent. People v. Senior (1992) 3 Cal.App.4th 765, 776 [5 Cal.Rptr.2d 14]
[specific intent is “purpose of sexual arousal, gratification, or abuse”].
• Mistake of Fact Regarding Consent. See People v. Mayberry (1975) 15 Cal.3d
143, 153–158 [125 Cal.Rptr. 745, 542 P.2d 1337] [in context of kidnapping and
rape].
• Sexual Abuse Defined. People v. White (1986) 179 Cal.App.3d 193, 205–206
[224 Cal.Rptr. 467].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 56, 58, 178.
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3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 292.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.20[1][d], [2] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
COMMENTARY
Penal Code section 289 requires that the sexual penetration be “against the victim’s
will.” (Pen. Code, § 289(a)(1), (2), (g).) “Against the will” has been defined as
“without consent.” (See People v. Key (1984) 153 Cal.App.3d 888, 895 [203
Cal.Rptr. 144] [in context of rape]; see also People v. Young (1987) 190 Cal.App.3d
248, 257 [235 Cal.Rptr. 361].)
The instruction include an optional definition of the sufficiency of “fear” because
that term has meaning in the context of forcible sex offenses that is technical and
may not be readily apparent to jurors. (See People v. Reyes (1984) 153 Cal.App.3d
803, 810 [200 Cal.Rptr. 651] [fear in context of sodomy and oral copulation];
People v. Iniguez (1994) 7 Cal.4th 847, 856–857 [30 Cal.Rptr.2d 258, 872 P.2d
1183] [fear in context of rape].)
The court is not required to instruct sua sponte on the definition of “duress” or
“menace” and Penal Code section 289 does not define either term. (People v.
Pitmon (1985) 170 Cal.App.3d 38, 52 [216 Cal.Rptr. 221] [duress]). Optional
definitions are provided for the court to use at its discretion. The definition of
“duress” is based on People v. Leal (2004) 33 Cal.4th 999, 1004–1010 [16
Cal.Rptr.3d 869, 94 P.3d 1071], and People v. Pitmon (1985) 170 Cal.App.3d 38,
50 [216 Cal.Rptr. 221]. The definition of “menace” is based on the statutory
definitions contained in Penal Code sections 261 and 262 [rape]. (See People v.
Cochran (2002) 103 Cal.App.4th 8, 13–14 [126 Cal.Rptr.2d 416] [using rape
definition in case involving forcible lewd acts].) In People v. Leal, supra, 33
Cal.4th at pp. 1004–1010, the court held that the statutory definition of “duress”
contained in Penal Code sections 261 and 262 does not apply to the use of that
term in any other statute. The court did not discuss the statutory definition of
“menace.” The court should consider the Leal opinion before giving the definition
of “menace.”
The term “force” as used in the forcible sex offense statutes does not have a
specialized meaning and court is not required to define the term sua sponte.
(People v. Griffın (2004) 33 Cal.4th 1015, 1023–1024 [16 Cal.Rptr.3d 891, 94 P.3d
1089].) In People v. Griffın, supra, the Supreme Court further stated,
Nor is there anything in the common usage definitions of the term “force,” or
in the express statutory language of section 261 itself, that suggests force in a
forcible rape prosecution actually means force “substantially different from or
substantially greater than” the physical force normally inherent in an act of
consensual sexual intercourse. [People v. Cicero (1984) 157 Cal.App.3d 465,
474 [204 Cal.Rptr. 582].] To the contrary, it has long been recognized that “in
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order to establish force within the meaning of section 261, subdivision (2), the
prosecution need only show the defendant used physical force of a degree
sufficient to support a finding that the act of sexual intercourse was against the
will of the [victim].” (People v. Young (1987) 190 Cal.App.3d 248, 257–258
[235 Cal.Rptr. 361] . . . .)
(Ibid. at 1023–1024 [emphasis in original].)
The committee has provided a bracketed definition of “force,” consistent with
People v. Griffın, supra, that the court may give on request.
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
Assault With Intent to Commit Forcible Sexual Penetration. See Pen. Code,
§ 220; In re Jose M. (1994) 21 Cal.App.4th 1470, 1477 [27 Cal.Rptr.2d 55] [in
context of rape].
• Attempted Forcible Sexual Penetration. Pen. Code, §§ 664, 289(a)(1), (2), (g).
• Battery. Pen. Code, § 242.
• Sexual Battery. Pen. Code, §§ 243.4(a), (e)(1) under the expanded accusatory
pleading test; People v. Ortega (2015) 240 Cal.App.4th 956, 967–970 [193
Cal.Rptr.3d 142].
Nonforcible sex crimes requiring the perpetrator and victim to be within certain age
limits are not lesser included offenses of forcible sex crimes. (People v. Scott
(2000) 83 Cal.App.4th 784, 794 [100 Cal.Rptr.2d 70].)
RELATED ISSUES
Consent Obtained by Fraudulent Representation
Aperson may also induce someone else to consent to engage in sexual penetration
by a false or fraudulent representation made with an intent to create fear, and
which does induce fear and would cause a reasonable person to act contrary to his
or her free will. (Pen. Code, § 266c [wobbler offense].) While section 266c requires
coercion and fear to obtain consent, it does not involve physical force or violence.
(See People v. Cardenas (1994) 21 Cal.App.4th 927, 937–938 [26 Cal.Rptr.2d 567]
[rejecting defendant’s argument that certain acts were consensual and without
physical force, and were only violations of section 266c].)
Consent Withdrawn
A forcible rape occurs when, during apparently consensual intercourse, the victim
expresses an objection and attempts to stop the act and the defendant forcibly
continues despite the objection. (In re John Z. (2003) 29 Cal.4th 756, 760 [128
Cal.Rptr.2d 783, 60 P.3d 183].) If there is an issue whether consent to sexual
penetration was withdrawn, see CALCRIM No. 1000, Rape or Spousal Rape by
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Force, Fear, or Threats, for language that may be adapted for use in this
instruction.
Minor Victim
When sexual penetration is committed against the will of a person who is incapable
of consent, such as a baby, and is accomplished by physical force that results in
physical injury to the victim, the statutory requirements “against the will” and “use
of force” are fully satisfied. (People v. White (1986) 179 Cal.App.3d 193, 202 [224
Cal.Rptr. 467].)
Multiple Penetrations
A violation of section 289 is complete when “slight” penetration occurs. A new and
separate violation is completed each time a new and separate penetration, however
slight, occurs. (People v. Harrison (1989) 48 Cal.3d 321, 329, 334 [256 Cal.Rtpr.
401, 768 P.2d 1078] [disapproving People v. Hammon (1987) 191 Cal.App.3d
1084, 1097 [236 Cal.Rptr. 822]].)
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