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F 10.33 n1 Unlawful Penetration By Foreign Object: Consent and Unconsciousness.
For additional issues regarding consent and unconsciousness, see FORECITE F 10.02 et seq.
F 10.33 n2 Rape Of Spouse: Unconsciousness And Fraud — “Fraud In Fact” As Issue For The Jury.
F 10.33 n3 Unlawful Penetration By Foreign Object: Lack Of Consent, Intoxicants, Unconsciousness, Etc. — Jury Must Find Fraud “In Fact” (PC 289(d), (e)).
In order to commit a violation of PC 289(d), there must be a fraud “in fact.” It is an essential element of the offense which must be found beyond a reasonable doubt and cannot be a legal question solely for the court. [See Brief Bank # B-859 for briefing on this issue.]
F 10.33 n4 Penetration By Foreign Object: Definition Of Penetration.
(See FORECITE F 10.30 n2.)
F 10.33a
Unlawful Penetration By Foreign Object:
Improper To Instruct On Fraud Alone
*Modify CJ 10.33, ¶ 10 as follows:
c. Not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraud <<[>>in fact<<]]>>.<<]>>
Points and Authorities
By having the words “in fact” bracketed, the CJ instruction may suggest to judges that other types of fraud will sustain a conviction as well. That is, if fraud IN FACT were a prerequisite to a valid conviction, there shouldn’t be brackets around “in fact.” Either it’s a question for the jury, on which they should be instructed and for which brackets are inappropriate, or it’s a question for the court, in which case the bracketed “in fact” should never be given to the jury.
By leaving these instructions as they currently are, the CJ Committee creates a risk that inattentive judges will conclude they should submit other types of fraud to the jury such as fraud in the inducement. (See FORECITE F 10.33 n3.)
