SERIES 1000 SEX OFFENSES
F 1002.6 Rape Of Intoxicated Woman Or Spouse—Defense Theories
F 1002 NOTES
TABLE OF CONTENTS
F 1002.6 Rape Of Intoxicated Woman Or Spouse—Defense Theories
F 1002.6 Inst 1 Sex Offense: Good Faith Belief That Victim Was Dead
F 1002.6 Inst 2 Consent Defined—Deletion Of Prior “Dating” Relationship
F 1002.6 Inst 3 Rape By Intoxication: “Prevented From Resisting”—Pinpoint Instruction (PC 261(a)(3)
F 1002.7 Rape Of Intoxicated Woman Or Spouse—Preliminary Fact Issues [Reserved]
F 1002.8 Rape Of Intoxicated Woman Or Spouse—Unanimity/Duplicity/Multiplicity [Reserved]
F 1002.9 Rape Of Intoxicated Woman Or Spouse—Lesser Offense Issues [Reserved]
F 1002 NOTES
F 1002 Note 1 Rape Of Intoxicated Woman Or Spouse—CALCRIM Cross References And Research Notes
F 1002 Note 2 Rape Of Intoxicated Woman Or Spouse—Additional Notes
Return to Series 1000 Table of Contents.
F 1002.6 Rape Of Intoxicated Woman Or Spouse—Defense Theories
F 1002.6 Inst 1 Sex Offense: Good Faith Belief That Victim Was Dead
See FORECITE F 1000.6 Inst 3.
F 1002.6 Inst 2 Consent Defined—Deletion Of Prior “Dating” Relationship
See FORECITE F 1000.6 Inst 7.
F 1002.6 Inst 3 Rape By Intoxication: “Prevented From Resisting”—Pinpoint Instruction (PC 261(a)(3)
*Add to CC 1002, paragraph 4, when appropriate:
In evaluating 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’sage 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
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Extent Of Intoxication As Factual Element—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 [trial court prejudicially erred by failing to explain the meaning of “prevented from resisting”].)
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases additional, federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 10.02d.
F 1002.7 Rape Of Intoxicated Woman Or Spouse—Preliminary Fact Issues[Reserved]
F 1002.8 Rape Of Intoxicated Woman Or Spouse—Unanimity/Duplicity/Multiplicity[Reserved]
F 1002.9 Rape Of Intoxicated Woman Or Spouse—Lesser Offense Issues[Reserved]
F 1002 NOTES
F 1002 Note 1 Rape Of Intoxicated Woman Or Spouse—CALCRIM Cross References And Research Notes
CALCRIM Cross-References:
CALCRIM 1000 [Rape or Spousal Rape by Force, Fear, or Threats]
CALCRIM 1001 [Rape or Spousal Rape in Concert]
CALCRIM 1003 [Rape of Unconscious Woman or Spouse]
CALCRIM 1004 [Rape of a Disabled Woman]
CALCRIM 1005 [Rape by Fraud]
Research Notes:
See CLARAWEB Forum: CALCRIM Warnings, Sex Offenses—Series 1000.
F 1002 Note 2 Rape Of Intoxicated Woman Or Spouse—Additional Notes
See FORECITE F 1000 Notes.