Return to CALJIC Part 9-12 – Contents
F 10.20 n1 Sex Offenses: Capacity To Consent — Definition Of “Developmental Disability.”
(See FORECITE F 10.00 n7.)
F 10.20a
Forcible Sodomy: Requirement That Victim Be Alive
(PC 286(c))
*To be added after paragraph 4(b) of CJ 10.20:
[5. The victim was alive at the moment of penetration.]
Points and Authorities
[See FORECITE F 10.00a.]
NOTES
Good Faith Belief That Victim Was Dead. (See FORECITE F 10.00e.)
F 10.20b
Forcible Sodomy: Definition Of Force
(PC 286(c))
*To be added at end of CJ 10.20:
The term “force” means physical force that is substantially different from or substantially greater than that necessary to accomplish the sexual intercourse itself.
Points and Authorities
[See FORECITE F 10.00b.]
F 10.20c
Forcible Sodomy: Proof Necessary To Establish Element Of Fear
(PC 286(c))
*To be added at end of CJ 10.20:
The element of fear is not established simply by a substantive feeling of fear by __________ [insert name of alleged victim]. The following must be established beyond a reasonable doubt:
1. __________ genuinely entertained a fear of immediate and unlawful bodily injury sufficient to induce [him] [her] to submit to sexual intercourse against [his] [her] will, and
2. __________’s fear was reasonable under the circumstances or, if not reasonable, the perpetrator knew of __________’s subjective fear and took advantage of it.
Points and Authorities
[See FORECITE F 10.00c.]
F 10.20d
Violent Sex Offenses: Definition Of Duress And Menace
(PC 286(c))
*To be added to CJ 10.20:
The term “duress” means a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim and [his] [her] relationship to the perpetrator are factors to consider.
Points and Authorities
See FORECITE F 10.10d.
F 10.20e
Forcible Sodomy: Actual Penetration Required
*Modify CJ 10.20 as follows [deleted language is between << >>]:
<<“Sodomy” is sexual conduct consisting of contact between the penis of one person and the anus of another person.>> Any sexual penetration, however slight, is sufficient to complete the crime of sodomy. [Proof of ejaculation is not required].
Points and Authorities
PC 286(a) defines sodomy as “sexual conduct consisting of contact between the penis of one person and the anus of another person. Any sexual penetration, however slight, is sufficient to complete the crime of sodomy.” This creates two elements, with the first one being “contact” and the second one “penetration,” and no conviction is proper unless both are proven. Since penetration, by definition, is more significant than mere “contact,” it is the second element, penetration, which is controlling; in fact, it has been held that failure to instruct on penetration is constitutional error. (See People v. Joiner (89) 204 CA3d 221 [251 CR 63].)
While the CALJIC instruction tracks the language of the statute, it erroneously suggests that “penetration, however slight” means the same thing as “contact.” It is possible to have contact with a permeable object without penetrating it. Thus, the instruction is defective in failing to explain that penetration means something more than mere “contact.” The requirement of “penetration” is an element of the charge requiring proof beyond a reasonable doubt. (See Neder v. U.S. (99) 527 US 1 [144 LEd2d 35; 119 SCt 1827].) Mere evidence of contact does not prove penetration and, hence, the current CALJIC instruction implicates the federal constitution. (Ibid.)
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).]
