Return to CALJIC Part 9-12 – Contents
F 10.02 n1 Sex Offenses: Definition of “Unconsciousness” (PC 261, PC 286, PC 288a, PC 289).
PC 261(a)(4), PC 286(f), PC 288a(f) and PC 289(d), proscribing rape, sodomy, oral copulation and penetration by foreign object on an unconscious person define “unconscious of the nature of the act” to include non-awareness. The statute states that “‘unconsciousness of the nature of the act’ means incapable of resisting because the victim meets one of the following conditions: (a) Was unconscious or asleep. (b) Was not aware, knowing, perceiving or cognizant that the act occurred. (c) Was not aware, knowing, perceiving or cognizant of the essential characteristics of the act due to the perpetrator’s fraud in fact.”
The above statutory definition of unconsciousness should be added to the CJ instruction.
F 10.02 n2 Sex Offenses: Definition Of “Administer.”
SUBSEQUENT HISTORY: In the Sixth Edition, the “administered by or with privity of the perpetrator” element was removed. CJ 9.46 was amended to include FORECITE’s recommendation to include a definition of administer.
In reliance upon People v. Mack (92) 11 CA4th 1466, 1480 [15 CR2d 193], the Jan. 1994 CALJIC pocket part added a definition of “administered” which includes the following language: “The perpetrator either directly applies the substance to the body of the [victim] or caused or procured the [victim] to take the substance into his or her system.”
There is a concern with this language which was drafted from Black’s Law Dictionary by the trial judge in Mack. The Mack court recognized that the statute requires the defendant to “instigate or encourage” the victim’s ingestion of the resistance-suppressing substance. (Mack 11 CA4th at 1481.) However, the court concluded that “the alternative formulation ‘caused or procured’ sufficiently reflects this criterion of instigation or encouragement.” (Id. at 1481-82.)
This conclusion is suspect because causation does not necessarily include the elements of “instigation or encouragement”. For example, if as the defendant claimed in Mack, the victim voluntarily took drugs which the defendant simply had available for his own use, then the defendant has caused the victim to ingest the drugs by having them available but has neither “encouraged nor instigated” the victim’s use of the drugs. Accordingly, the new CALJIC instruction should be amplified to assure the jury understands that causation alone, without “encouragement or instigation,” is insufficient to establish that the defendant “administered” the drug.
In People v. Cortez (94) 30 CA4th 143 [35 CR2d 500], the court held that the phrase “administered by or with the privity of the accused” was intended to provide two distinct methods by which a defendant could be held criminally responsible for a sexual encounter he has with another person whose ability to resist is suppressed by a consumption of drugs or alcohol per PC 261(2)(3). The first method is personal application of the substance by the defendant. The second method covers situations where the accused had no personal and direct involvement with the victim in the administration of the resistance-suppressing substance. In such a case, the term “privity” requires both knowledge and that the accused encouraged, facilitated or instigated another to administer the resistance-suppressing substance to the victim. Hence, the proper definition of administer is as follows: “The direct application of an enumerated substance to the body of the victim by: (1) the accused or his agent; or (2) the victim at the direction of or in response to encouragement by the accused or his agent. The application can be accomplished by injection, inhalation, ingestion or by any other means.” (Cortez 30 CA4th at 167.)
F 10.02 n3 “Engaged In” vs. “Committed.”
(See FORECITE F 2.23.1 n1.)
F 10.02 n4 Rape Of Unconscious Person: Consent Not A Defense.
(See People v. Dancy (2002) 102 CA4th 21, 31-37 [124 CR2d 898] [court not required to instruct jury on consent in relation to offense of rape of unconscious person].)
Sex Offenses: “Should Know” Standard Requires
Consideration Of A Reasonable Person In Defendant’s Position
*Add to CJ 10.02:
[See FORECITE F 7.32a.]
Rape By Intoxication:
Improper Instruction On Negligence Standard
(PC 261(a)(1)/PC 261(a)(3)
*Modify CJ 10.02, ¶¶ 2 and 3 as follows [added language is capitalized]:
[Every person who engages in an act of sexual intercourse with another person not the spouse of the perpetrator, where that person is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this incapacity is known <<or reasonably should be known>> to the person committing the act, is guilty of the crime of rape in violation of Penal Code section 261(a)(1).]
[Every person who engages in an act of sexual intercourse with another person not the spouse of the perpetrator, when that other person is prevented from resisting by any intoxicating or anesthetic substance, and this condition was known <<or reasonably should have been known>> by the accused, is guilty of the crime of rape in violation of Penal Code section 261(a)(3).]
*Modify Element 4 as follows:
4. The other person knew <<or reasonably should have known>> of this incapability.]
[4. This condition was known<<, or reasonably should have been known>> by the accused].]
Points and Authorities
CJ 10.02 is incorrect because of use of the phrase “reasonably should have known” for a crime which is clearly malum in se and for which an ordinary negligence standard is not permitted. (See People v. Simon (95) 9 C4th 493, 521 [37 CR2d 278] [offenses which are not malum prohibitum “are subject to the requirements of PC 20″].) Ordinary negligence is not a constitutionally permissible mental state for a malum in se felony criminal offense. (Simon, 9 C4th at 521-22; see also People v. Smith (97) 57 CA4th 1470, 1479 [67 CR2d 604] [use of natural and probable consequences standard for assault liability was erroneous since it improperly stated a “negligence” standard]; People v. Martin (89) 211 CA3d 699, 711-12 [259 CR 770] [“should have foreseen” instructional language improperly permitted jury to convict on a negligence standard]; U.S. v. Batt (D. Kan. 1993) 811 FSupp 625, 626-28; State v. Carrasco (NM 1997) 946 P2d 1075, 1079-80 [natural and probable consequences doctrine disapproved as, inter alia, “inconsistent with the culpability level for accomplice liability established by the Model Penal Code” (§ 2.06)].)
Moreover, because the prohibition against negligence-based criminal liability is firmly rooted in the common law (see generally LaFave, Scott, Substantive Criminal Law § 6.8(b) (West, 1986) p. 158), a state’s violation of that prohibition is a fundamental due process abridgement. (See Montana v. Eglehoff (96) 518 US 37 [135 LEd2d 361; 116 SCt 2013] [plurality opinion] [limitation on intoxication defense does not offend due process because intoxication was not a defense at common law]; see also Schad v. Arizona (91) 501 US 624 [115 LEd2d 555; 111 SCt 2491].)
(See FORECITE PG VII(C)(48).)
Rape By Intoxication:
Honest And Reasonable Belief As To Consent Negates Element
*Add to CJ 10.02/CJ 10.05 when appropriate:
One of the elements the prosecution must prove beyond a reasonable doubt is that the defendant knew that _____________ (alleged victim) was so intoxicated that she did not have the legal capacity to consent to the alleged sex act.
However, even if this element is proven, the prosecution must also prove beyond a reasonable doubt that the defendant actually knew that ________________ (alleged victim) was so intoxicated that she did not have the legal capacity to consent to the alleged sex act.
In deciding whether the prosecution has met this burden, consider all the evidence including any evidence that the defendant honestly and reasonably believed that ________________ (alleged victim) did have the legal capacity to consent. Unless the prosecution proves beyond a reasonable doubt that the defendant did not have such a belief, you must find the defendant not guilty.
Points and Authorities
PC 261(a)(3) provides that the accused is guilty of rape by intoxication only if the victim’s incapacitating level of intoxication “was known, or reasonably should have been known by the accused.” Therefore, an honest and reasonable but mistaken belief that a sexual partner is not too intoxicated to give legal consent should negate rape by intoxication. (People v. Giardino (2000) 82 CA4th 454, 471 [98 CR2d 315]; see also People v. Mayberry (75) 15 C3d 143 [125 CR 745].)
(See FORECITE F 10.65b.)
Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII(C).]
Rape By Intoxication: “Prevented From Resisting” Defined
*Add to CJ 10.02/CJ 10.05 when appropriate:
Your task is to decide whether, as a result of the alleged victim’s level of intoxication, the alleged victim lacked the legal capacity to give consent as that term has been defined elsewhere in these instructions. Legal capacity is the ability to exercise reasonable judgment, i.e., to understand and weigh not only the physical nature of the act, but also its moral character and probable consequences.
In deciding whether the level of the alleged victim’s intoxication deprived the alleged victim of legal capacity to consent, consider all the circumstances, including the alleged victim’s age and maturity. It is not enough that the alleged victim was intoxicated to some degree, or that the intoxication reduced the alleged victim’s sexual inhibitions. Instead, the level of intoxication and the resulting mental impairment must have been so great that the alleged victim could no longer exercise reasonable judgment concerning the issue.
If, after consideration of all the evidence you have a reasonable doubt that the alleged victim’s intoxication deprived [him] [her] of legal capacity to consent you must resolve that doubt in favor of the defendant and find [him] [her] not guilty.
Points and Authorities
Although the statutory language of PC 261(a)(3) suggests that the factual issue involved in rape by intoxication cases is whether the intoxicating substances prevented the victim from physically resisting, “the correct interpretation focuses on whether the victim’s level of intoxication prevented him or her from exercising judgment.” (People v. Giardino (2000) 82 CA4th 454, 465-71 [98 CR2d 315] [trial court prejudicially erred by failing to explain the meaning of “prevented from resisting”].)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]