1180. Incest With a Minor
The defendant is charged [in Count ______] with incest.
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant had sexual intercourse with a minor;
2. The defendant and the minor are related to each other as (parent and child/[great-]grandparent and [great-]grandchild/[half] brother and [half] sister/uncle and niece/aunt and nephew).
Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. [Ejaculation is not required.]
A minor is a person under the age of 18 years.
[Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun.]
The court has a sua sponte duty to give this instruction defining the elements of the crime.
This instruction focuses on incestuous sexual intercourse with a minor, which is the most likely form of incest to be charged. Incest is also committed by intercourse between adult relatives within the specified degree of consanguinity, or by an incestuous marriage. (See Pen. Code, § 285.)
Give the bracketed paragraph about calculating age if requested. (Fam. Code, § 6500; In re Harris (1993) 5 Cal.4th 813, 849-850 [21 Cal.Rptr.2d 373, 855 P.2d 391].)
Elements. Pen. Code, § 285.
Incestuous Marriages. Fam. Code, § 2200.
Sexual Intercourse Defined. See 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 [250 Cal.Rptr. 635, 758 P.2d 1165]].
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Sex Offenses and Crimes Against Decency, §§ 138-142.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.21 (Matthew Bender).
Lesser Included Offenses
Attempted Incest. Pen. Code, §§ 664, 285.
A minor is a victim of, not at accomplice to, incest. Accomplice instructions are not appropriate in a trial for incest involving a minor. (People v. Tobias (2001) 25 Cal.4th 327, 334 [106 Cal.Rptr.2d 80, 21 P.3d 758]; see People v. Stoll (1927) 84 Cal.App. 99, 101-102 [257 P. 583].) An exception may exist when two minors engage in consensual sexual intercourse, and thus both are victims of the other's crime. (People v. Tobias, supra, 327 Cal.4th at p. 334; see In re T.A.J. (1998) 62 Cal.App.4th 1350, 1364-1365 [73 Cal.Rptr.2d 331] [minor perpetrator under Pen. Code, § 261.5].) An adult woman who voluntarily engages in the incestuous act is an accomplice, whose testimony must be corroborated. (See People v. Stratton (1904) 141 Cal. 604, 609 [75 P. 166].)
Family Code section 2200 prohibits sexual relations between brothers and sisters of half blood, but not between uncles and nieces of half blood. (People v. Baker (1968) 69 Cal.2d 44, 50 [69 Cal.Rptr. 595, 442 P.2d 675] [construing former version of § 2200].) However, sexual intercourse between persons the law deems to be related is proscribed. A trial court may properly instruct on the conclusive presumption of legitimacy (see Fam. Code, § 7540) if a defendant uncle asserts that the victim's mother is actually his half sister. The presumption requires the jury to find that if the defendant's mother and her potent husband were living together when the defendant was conceived, the husband was the defendant's father, and thus the defendant was a full brother of the victim's mother. (People v. Russell (1971) 22 Cal.App.3d 330, 335 [99 Cal.Rptr. 277].)
Lack of Knowledge as Defense
No reported cases have held that lack of knowledge of the prohibited relationship is a defense to incest. (But see People v. Patterson (1894) 102 Cal. 239, 242-243 [36 P. 436] [dictum that party without knowledge of relationship would not be guilty]; see also People v. Vogel (1956) 46 Cal.2d 798, 801, 805 [299 P.2d 850] [good faith belief is defense to bigamy].)
(New January 2006)