9.4.2: Jury Instructions- CALCRIM No. 1000. Rape by Force, Fear, or Threats (Pen. Code, § 261(a)(2), (6) & (7))

The defendant is charged [in Count ] with rape by force [in violation of Penal Code section 261(a)].

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

prove that:

1. The defendant had sexual intercourse with a woman;

2. The woman did not consent to the intercourse;

AND

3. The defendant accomplished the intercourse by <Alternative 3A - force or fear> [force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the woman or to someone else.] <Alternative 3B - future threats of bodily harm> [threatening to retaliate in the future against the woman or someone else when there was a reasonable possibility that the defendant would carry out the threat. A threat to retaliate is a threat to kidnap, falsely imprison, or inflict extreme pain, serious bodily injury, or death.] <Alternative 3C - threat of official action> [threatening to use the authority of a public office to incarcerate, arrest, or deport someone. A public official is a person employed by federal, state, or local government who has authority to incarcerate, arrest, or deport. The woman must have reasonably believed that the defendant was a public official even if he was not.]

Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. [Ejaculation is not required.]

[To consent, a woman must act freely and voluntarily and know the nature of the act.]

[A woman who initially consents to an act of intercourse may change her mind during the act. If she does so, under the law, the act of intercourse is then committed without her consent if:

1.    She communicated through words or acts to the defendant that she no longer consented to the act of intercourse;

2.    2. A reasonable person would have understood that her words or acts expressed her lack of consent;

AND

3.    The defendant forcibly continued the act of intercourse despite her objection.][It is not required that she physically resist or fight back in order to communicate her lack of consent.]

[Evidence that the defendant and the woman (dated/were married/had been married) is not enough by itself to constitute consent.]

[Evidence that the woman (requested/suggested/communicated) that the defendant use a condom or other birth control device is not enough by itself to constitute consent.]

[Intercourse is accomplished by force if a person uses enough physical force to overcome the woman’s will.]

[Duress means a direct or implied threat of force, violence, danger, or retribution that would cause a reasonable person to do [or submit to]something that she would not do [or submit to] otherwise.

When deciding whether the act was accomplished by duress, consider all the circumstances, including the woman’s age and 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.]

[Intercourse is accomplished by fear if the woman is actually and reasonably afraid [or she is actually but unreasonably afraid and the defendant knows of her fear and takes advantage of it].]

[A woman must be alive at the time of the sexual intercourse for the crime of rape to occur.]

<Defense: Reasonable Belief in Consent>[The defendant is not guilty of rape if he actually and reasonably believed that the woman consented to the intercourse [and actually and reasonably believed that she consented throughout the act of intercourse].

The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the woman consented. If the People have not met this burden, you must find the defendant not guilty.

New January 2006; Revised February 2013, February 2014, March 2022

Example of Rape Act

Alex and Brad play video games while Brad’s sister Brandy watches. Brad tells Alex he is going to go the store and purchase some beer. While Brad is gone, Alex turns to Brandy, pulls a knife out of his pocket, and tells her to take off her pants and lie down. Brandy tells Alex, “No, I don’t want to,” but thereafter acquiesces, and Alex puts his penis into Brandy’s vagina. Alex has probably committed the criminal act element required for rape in most jurisdictions. Although Alex did not use physical force to accomplish sexual intercourse, his threat of force by display of the knife is sufficient. If the situation is reversed, and Brandy pulls out the knife and orders Alex to put his penis in her vagina, many jurisdictions would also criminalize Brandy’s criminal act as rape. If Alex does not use force or a threat of force, but Brandy is only nine years old, some jurisdictions still criminalize Alex’s act as rape, as would the Model Penal Code.

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