Section 1045 | CALCRIM (Jury Instructions)

body except a sexual organ.] [An unknown object includes any foreign
object, substance, instrument, or device, or any part of the body,
including a penis, if it is not known what object penetrated the opening.]
[Penetration for sexual abuse means penetration for the purpose of
causing pain, injury, or discomfort.]
[In order to consent, a person must act freely and voluntarily and know
the nature of the act.]
[Evidence that the defendant and the other person (dated/were married/
had been married) is not enough by itself to constitute consent.]
[Evidence that the other person (requested/suggested/communicated) that
the defendant use a condom or other birth control device is not enough
by itself to constitute consent.]
[An act is accomplished by force if a person uses enough physical force to
overcome the other person’s will.]
[Duress means a direct or implied threat of force, violence, danger,
hardship, or retribution that is enough to cause a reasonable person of
ordinary sensitivity to do [or submit to] something that he or she would
not otherwise do [or submit to]. When deciding whether the act was
accomplished by duress, consider all the circumstances, including the age
of the other person and (his/her) relationship to the defendant.]
[Retribution is a form of payback or revenge.]
[Menace means a threat, statement, or act showing an intent to injure
someone.]
[An act is accomplished by fear if the other person is actually and
reasonably afraid [or (he/she) is actually but unreasonably afraid and the
defendant knows of (his/her) fear and takes advantage of it].]
<Defense: Reasonable Belief in Consent>
[The defendant is not guilty of forcible sexual penetration if (he/she)
actually and reasonably believed that the other person consented to the
act. The People have the burden of proving beyond a reasonable doubt
that the defendant did not actually and reasonably believe that the other
person consented. If the People have not met this burden, you must find
the defendant not guilty.]
New January 2006; Revised August 2016, April 2020, October 2021, March 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of
sexual penetration.
CALCRIM No. 1045
SEX OFFENSES
792

143, 153–158 [125 Cal.Rptr. 745, 542 P.2d 1337] [in context of kidnapping and
rape]; People v. Duarte-Lara (2020) 49 Cal.App.5th 332, 339 [262 Cal.Rptr.3d
774] [noting minor over 14].
•
Sexual Abuse Defined. People v. White (1986) 179 Cal.App.3d 193, 205–206
[224 Cal.Rptr. 467].
COMMENTARY
Penal Code section 289 requires that the sexual penetration be “against the victim’s
will.” (Pen. Code, § 289(a)(1), (2), (g).) “Against the will” has been defined as
“without consent.” (See People v. Key (1984) 153 Cal.App.3d 888, 895 [203
Cal.Rptr. 144] [in context of rape]; see also People v. Young (1987) 190 Cal.App.3d
248, 257 [235 Cal.Rptr. 361].)
The instruction includes an optional definition of the sufficiency of “fear” because
that term has m