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F 10.40 n1 Statutory Rape: Applicable To Both Males And Females.
Effective 1/1/94, PC 261.5 redefined statutory rape as sexual intercourse with a “person” under the age of 18 years. CJ 10.40 should be modified to change the term “female” to “person.”
NOTE: CJ 10.40 was deleted by the CALJIC Committee in the 6th Edition (1997). See FORECITE F 10.40b for the 5th Edition instruction.
F 10.40 n2 Minor Not Criminally Liable As Aider And Abetter To Statutory Rape.
[See FORECITE F 3.00 n10]
NOTE: CJ 10.40 was deleted by the CALJIC Committee in the 6th Edition (1997). See FORECITE F 10.40b for the 5th Edition instruction.
F 10.40a
Unlawful Sexual Intercourse: Mistake Of Fact As Defense
(PC 261.5)
*Add to FORECITE F 10.40b:
[See FORECITE F 4.35c.]
NOTE: CJ 10.40 was deleted by the CALJIC Committee in the 6th Edition (1997). See FORECITE F 10.40b for the 5th Edition instruction.
F 10.40b
Unlawful Sexual Intercourse–Defined
(PC 261.5(b))
[Defendant is accused in [Count[s] ______ of] the information of having committed the crime of unlawful sexual intercourse, a violation of Section 261.5 of the Penal Code.]
Every person who engages in an act of sexual intercourse with a female person under the age of eighteen years, who is not the wife of the perpetrator, is guilty of the crime of unlawful sexual intercourse in violation of Penal Code, Section 261.5.
Consent of the female is not a defense to the crime of unlawful sexual intercourse.
In order to prove such crime, each of the following elements must be proved:
1. A person engaged in an act of sexual intercourse with a female person;
2. The female was not his wife; and
3. She was under eighteen years of age.
Any sexual penetration, however slight, constitutes “engaging in act of sexual intercourse.”
[Proof of ejaculation is not required.]
NOTE: The above instruction was originally published in CJ (5th Edition) as CJ 10.40. The instruction was deleted in the CJ 6th Edition. However, the instruction is still required for violations of PC 261.5(b), as CJ 10.40.1 is for use in cases of violations of PC 261.5(c) [added element that victim is three years younger than the perpetrator] and CJ 10.40.2 is for use in cases of violations of PC 261.5(d) [added element that perpetrator was over 21 years of age and engaged in act with person under 16].
Original CJ Use Note
CJ 17.01 is required if more than one act is alleged.
If the defense of reasonable belief in majority is raised by the evidence, give CJ 10.67.
Original CJ Comment
PC 261.5; 1 Witkin & Epstein, Calif.Crim.Law (2d ed.) § 779.
People v. Montero (86) 185 CA3d 415, 427-30 [229 CR 750].
