Section 1001 | CALCRIM (Jury Instructions)

New January 2006; Revised February 2013, February 2014, March 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of
rape.
Penal Code section 261, as amended by Assembly Bill 1171 (Stats. 2021, ch. 626),
became effective on January 1, 2022. If the defendant’s alleged act occurred before
this date, the court should give the prior version of this instruction.
The court should select the appropriate alternative in element 3 describing how the
sexual intercourse was allegedly accomplished.
Rape requires that the victim be alive at the moment of intercourse. (People v.
Ramirez (1990) 50 Cal.3d 1158, 1175–1177 [270 Cal.Rptr. 286, 791 P.2d 965];
People v. Carpenter (1997) 15 Cal.4th 312, 391 [63 Cal.Rptr.2d 1, 935 P.2d 708].)
Geistcourse with a deceased victim may constitute attempted rape if the defendant
intended to rape a live victim. (People v. Kelly (1992) 1 Cal.4th 495, 524–526 [3
Cal.Rptr.2d 677, 822 P.2d 385].) If this is an issue in the case, give the bracketed
sentence that begins with “A woman must be alive . . .”
The defendant must continue to actually and reasonably believe in the victim’s
consent throughout the act. If the act of intercourse begins consensually and the
victim then changes her mind, the victim must clearly and unequivocally
communicate to the defendant her withdrawal of consent to the act. If, however, the
defendant initiates the use of nonconsensual duress, menace, or force during the act,
the victim’s subsequent withdrawal of consent to the act may be inferred from the
circumstances and need not be expressed. (People v. Ireland (2010) 188 Cal.App.4th
328, 338 [114 Cal.Rptr.3d 915]). If there is an issue regarding the defendant’s
continued belief in the victim’s consent, give the second optional first sentence in
the definition of “Defense: Reasonable Belief in Consent.”
Defenses—Instructional Duty
The court has a sua sponte duty to instruct on the defense of reasonable belief in
consent if there is “substantial evidence of equivocal conduct that would have led a
defendant to reasonably and in good faith believe consent existed where it did not.”
(See People v. Williams (1992) 4 Cal.4th 354, 362 [14 Cal.Rptr.2d 441, 841 P.2d
961]; People v. Mayberry (1975) 15 Cal.3d 143, 153–158 [125 Cal.Rptr. 745, 542
P.2d 1337].)
Related Instructions
CALCRIM No. 1001, Rape in Concert, may be given in conjunction with this
instruction, if appropriate.
AUTHORITY
•
Elements. Pen. Code, § 261(a)(2), (6) & (7).
•
Consent Defined. Pen. Code, §§ 261.6, 261.7.
•
Duress Defined. Pen. Code, § 261(b).
SEX OFFENSES
CALCRIM No. 1000
735

Cal.App.3d 724, 730 [109 Cal.Rptr. 287] [where forcible rape is charged].
•
Attempted Rape. Pen. Code, §§ 664, 261.
•
Battery. Pen. Code, § 242.
•
Rape. Pen. Code, § 261.
RELATED ISSUES
Need Not Personally Participate
A defendant may be convicted of rape in concert if he or she was at the general
scene of the rape and aided and abetted another person in accompli