SERIES 1000 SEX OFFENSES
F 1003 Rape Of Unconscious Woman Or Spouse (PC 261(a)(4), 262(a)(3))
TABLE OF CONTENTS
F 1003.1 Titles And Identification Of Parties
F 1003.1 Inst 1 Rape Of Unconscious Woman Or Spouse —Title
F 1003.1 Inst 2 Identification Of Prosecution And Defendant
F 1003.2 Rape Of Unconscious Woman Or Spouse—Tailoring To Facts: Persons, Places, Things And Theories
F 1003.2 Inst 1 Element 1: Tailoring To Facts; Include Definition Of Sexual Intercourse In Description Of Element
F 1003.2 Inst 2 Element 2: Tailoring To Facts
F 1003.2 Inst 3 Tailoring To Facts: “Unconscious Of The Nature Of The Act”—Specification Of “The Act”
F 1003.3 Rape Of Unconscious Woman Or Spouse—Language That Is Argumentative, Confusing, Etc.
F 1003.3 Inst 1 Deletion Of Argumentative Language
F 1003.4 Rape Of Unconscious Woman Or Spouse—Burden Of Proof Issues
F 1003.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 1003.4 Inst 2 Victim’s Lack Of Clothing Insufficient To Establish Specific Sexual Intent
F 1003.5 Rape Of Unconscious Woman Or Spouse—Elements And Definitions
F 1003.5 Inst 1 Victim Alive As Element
F 1003.5 Inst 2 Forcible Sex Offenses: “Should Have Known” Requires Consideration Of Reasonable Person In Defendant’s Situation
F 1003.5 Inst 3 Include Definition Of “Unconscious” In Description Of Elements
F 1003.5 Inst 4 Sex Offense Based On Constructive Knowledge
F 1003.6 Rape Of Unconscious Woman Or Spouse—Defense Theories
F 1003.6 Inst 1 Sex Offense: Good Faith Belief That Victim Was Dead
F 1003.7 Rape Of Unconscious Woman Or Spouse—Preliminary Fact Issues [Reserved]
F 1003.8 Rape Of Unconscious Woman Or Spouse—Unanimity/Duplicity/Multiplicity [Reserved]
F 1003.9 Rape Of Unconscious Woman Or Spouse—Lesser Offense Issues [Reserved]
F 1003 Notes
F 1003 Note 1 Rape Of Unconscious Woman Or Spouse—CALCRIM Cross References And Research Notes
F 1003 Note 2 Rape Of Unconscious Person: Consent Not A Defense
F 1003 Note 3 Sex Crimes: Entrapment
Return to Series 1000 Table of Contents.
F 1003.1 Titles And Identification Of Parties
F 1003.1 Inst 1 Rape Of Unconscious Woman Or Spouse —Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 1003.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 1003.2Rape Of Unconscious Woman Or Spouse—Tailoring To Facts: Persons, Places, Things And Theories
F 1003.2 Inst 1 Element 1: Tailoring To Facts; Include Definition Of Sexual Intercourse In Description Of Element
See FORECITE F 1000.2 Inst 1.
F 1003.2 Inst 2 Element 2: Tailoring To Facts
See FORECITE F 1000.2 Inst 2.
F 1003.2 Inst 3 Tailoring To Facts: “Unconscious Of The Nature Of The Act”—Specification Of “The Act”
*Modify CC 1003, paragraph 4, as follows [added language is underlined; deleted language is stricken]:
A woman is unconscious of the nature of the act _______________ <specify act, e.g., penetration of her genitalia or vagina> if she is (unconscious or asleep/ [or] not aware that the act is occurring/[or] not aware of the essential characteristics of the act because the perpetrator tricked, lied to, or concealed information from her/ [or] not aware of the essential characteristics of the act because the perpetrator fraudulently represented that the sexual penetration served a professional purpose when it served no professional purpose).
Points and Authorities
See FORECITE F 400.2 Inst 1.
F 1003.3 Rape Of Unconscious Woman Or Spouse—Language That Is Argumentative, Confusing, Etc.
F 1003.3 Inst 1 Deletion Of Argumentative Language
See FORECITE F 1002.3 Inst 1.
F 1003.4 Rape Of Unconscious Woman Or Spouse—Burden Of Proof Issues
F 1003.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 1003.4 Inst 2Victim’s Lack Of Clothing Insufficient To Establish Specific Sexual Intent
See FORECITE F 1000.4 Inst 5.
F 1003.5 Rape Of Unconscious Woman Or Spouse—Elements And Definitions
F 1003.5 Inst 1 Victim Alive As Element
See FORECITE F 1000.5 Inst 5.
F 1003.5 Inst 2 Forcible Sex Offenses: “Should Have Known” Requires Consideration Of Reasonable Person In Defendant’s Situation
See FORECITE F 1002.5 Inst 2.
F 1003.5 Inst 3Include Definition Of “Unconscious” In Description Of Elements
*Modify CC 1003, Element 3, as follows [added language is underlined; deleted language is stricken]:
3. The woman _______________ <name of alleged victim> was unable to resist the penetration because when it happened she was [unconscious or asleep] of the nature of the act; A woman is unconscious of the nature of the act if she is (unconscious or asleep/ [or] not aware that the act is occurring/ [or] not aware of the essential characteristics of the act because the perpetrator tricked, lied to, or concealed information from her/ [or] not aware of the essential characteristics of the act because the perpetrator fraudulently represented that the sexual penetration served a professional purpose when it served no professional purpose).
[Delete last paragraph of instruction.]
*Modify CC 1003, Element 4, as follows [added language is underlined; deleted language is stricken]:
4. The defendant knew that the woman _______________ <name of alleged victim> was unable to resist because she was unconscious of the nature of the act _______________ <insert appropriate specific allegations from Element 3, above>.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Definition Should Be Included In Element—It is unnecessarily cumbersome and potentially confusing to define an element using a term that actually means something else as defined in separate instructions not included in the element language. (See FORECITE F 417.5 Inst 2.)
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.
F 1003.5 Inst 4 Sex Offense Based On Constructive Knowledge
See FORECITE F 1002.5 Inst 4.
F 1003.6 Rape Of Unconscious Woman Or Spouse—Defense Theories
F 1003.6 Inst 1 Sex Offense: Good Faith Belief That Victim Was Dead
See FORECITE F 1000.6 Inst 3.
F 1003.7 Rape Of Unconscious Woman Or Spouse—Preliminary Fact Issues[Reserved]
F 1003.8 Rape Of Unconscious Woman Or Spouse—Unanimity/Duplicity/Multiplicity[Reserved]
F 1003.9 Rape Of Unconscious Woman Or Spouse—Lesser Offense Issues[Reserved]
F 1003 NOTES
F 1003 Note 1 Rape Of Unconscious 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 1002 [Rape of Intoxicated 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 1003 Note 2 Rape Of Unconscious Person: Consent Not A Defense
(See People v. Dancy (2002) 102 CA4th 21, 31-37 [court not required to instruct jury on consent in relation to offense of rape of unconscious person].)
CALJIC NOTE: See FORECITE F 10.02 n4.
F 1003 Note 3 Sex Crimes: Entrapment
See FORECITE F 1000 Note 5.
