CALIFORNIA SEX CRIMES

 

Rape (Pen. Code, § 261(a)

To prove a person is guilty of rape, the prosecution must prove: 1.

The defendant had sexual intercourse with a woman; 2. He and the woman were (not married/married) to each other at the time of the intercourse; 3.

The woman did not consent to the intercourse; and 4. The defendant accomplished the intercourse by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the woman or to someone else.

Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. Ejaculation is not required.

To consent, a woman must act freely and voluntarily and know the nature of the act.

The defendant is not guilty of rape if he actually and reasonably believed that the woman consented to the intercourse and actually and reasonably believed that she consented throughout the act of intercourse. The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the woman consented.

 

Rape of Intoxicated Woman or Spouse (Pen. Code, §§ 261(a)(3), 262(a)(2)) 

 

To prove a defendant guilty of raping (a woman/his wife) while she was intoxicated in violation of Penal Code section 261 subdivision (a)(3), the prosecution must prove: 1. The defendant had sexual intercourse with a woman; 2. He and the woman were (not married/married) to each other at the time of the intercourse; 3. The effect of (a/an) (intoxicating/anesthetic/controlled) substance prevented the woman from resisting; AND The defendant knew or reasonably should have known that the effect of (a/an) (intoxicating/anesthetic/controlled) substance prevented the woman from resisting.

The defendant is not guilty of this crime if he actually and reasonably believed that the woman was capable of consenting to sexual intercourse, even if that belief was wrong. The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the woman was capable of consenting.

 

Rape of Unconscious Woman or Spouse (Pen. Code, §§ 261(a)(4), 262(a)(3))

 

To prove that the defendant is rape of an unconscious woman or spouse, the prosecution must prove: 1. The defendant had sexual intercourse with a woman; 2. He and the woman were (not married/married) to each other at the time of the intercourse; 3. The woman was           unable to resist because she was unconscious of the nature of the act; AND 4. The defendant knew that the woman was unable to resist because she was unconscious of the nature of the act.

Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. Ejaculation is not required.

A woman is unconscious of the nature of the act if she is unconscious or asleep/ or not aware that the act is occurring/ or not aware of the essential characteristics of the act because the perpetrator tricked, lied to, or concealed information from her/ or not aware of the essential characteristics of the act because the perpetrator fraudulently represented that the sexual penetration served a professional purpose when it served no professional purpose.

 

Oral Copulation by Force, Fear, or Threats (Pen. Code, § 288a(c)(2) & (3), (k))

 

To prove a person guilty of Oral Copulation by Force, Fear, or Threats (Pen. Code, § 288a(c)(2) & (3), (k)), the prosecution must

prove: 1. The defendant committed an act of oral copulation with someone else; 2. The other person did not consent to the act; and 3. The defendant accomplished the act by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to someone.

Oral copulation is any contact, no matter how slight, between the mouth of one person and the sexual organ or anus of another person. Penetration is not required.

To consent, a person must act freely and voluntarily and know the nature of the act.

Evidence that the defendant and the person (dated/were married/had been married) is not enough by itself to constitute consent. Evidence that the person (requested/suggested/communicated) that the defendant use a condom or other birth control device is not enough by itself to constitute consent.

 

Sodomy by Force, Fear, or Threats (Pen. Code, § 286(c)(2), (3), (k))

 

To prove a person committed the crime of Sodomy by Force, Fear, or Threats (Pen. Code, § 286(c)(2), the prosecution must prove that: 1. The defendant committed an act of sodomy with another person; 2. The other person did not consent to the act; and 3. The defendant accomplished the act: by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to another person.

 

Sexual Penetration by Force, Fear, or Threats (Pen. Code, § 289(a)(1), (2), (g)) 

 

To prove a person guilty of Sexual Penetration by Force, Fear, or Threats (Pen. Code, § 289(a)(1), (2), (g)), the prosecution must prove that:

  1. The defendant committed an act of sexual penetration with another person; The penetration was accomplished by using (a/an) (foreign object[,]/ [or] substance[,]/ [or] instrument[,]/ [or] device[,]/ [or] unknown object); 3. The other person did not consent to the act; and 4. The defendant accomplished the act: by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to another person.

Unlawful Sexual Intercourse (Pen. Code, § 261.5(a) & (d))

To prove a person is guilty of Unlawful Sexual Intercourse: Defendant 21 or Older (Pen. Code, § 261.5(a) & (d)), the prosecution must prove: 1.

The defendant had sexual intercourse with another person; 2. The defendant and the other person were not married to each other at the time of the intercourse; 3. The defendant was at least 21 years old at the time of the intercourse; and 4. The other person was under the age of 16 years at the time of the intercourse.

Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. Ejaculation is not required. It is not a defense that the other person may have consented to the intercourse.

 

Unlawful Sexual Intercourse: Minor More Than Three Years Younger (Pen. Code, § 261.5(a) & (c))

 

To prove a person guilty of Unlawful Sexual Intercourse: Minor More Than Three Years Younger (Pen. Code, § 261.5(a) & (c)), the People must prove: 1. The defendant had sexual intercourse with another person; 2.

The defendant and the other person were not married to each

other at the time of the intercourse; and 3. At the time of the intercourse, the other person was under the age of 18 and more than three years younger than the defendant.

Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. Ejaculation is not required. It is not a defense that the other person may have consented to the intercourse.

 

Oral Copulation of a Person Under Age 14 (Pen. Code, § 288a(c)(1).)

 

To prove a person guilty of the crime of Unlawful Oral Copulation of a Person under 14 years old, the prosecution must prove that: 1. The defendant participated in an act of oral copulation with another person; and

  1. At the time of the act, the other person was under the age of 14 and was at least 10 years younger than the

Oral copulation is any contact, no matter how slight, between the mouth of one person and the sexual organ or anus of another person. Penetration is not required.

It is not a defense that the other person may have consented to the

act.

 

Lewd or Lascivious Act - Child under 14 Years Old (Pen. Code, § 288(a). )

 

To prove a person guilty of lewd or Lascivious Act on a Child under the Age of 14 Years, the prosecution must prove: [1A. The defendant willfully touched any part of a child’s body either on the bare skin or through the clothing;] [OR] [1B. The defendant willfully caused a child to touch (his/her) own body, the defendant’s body, or the body of someone else, either on the bare skin or through the clothing;] 2. The defendant committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of (himself/herself) or the child; AND 3.

The child was under the age of 14 years at the time of the act.

Actually arousing, appealing to, or gratifying the lust, passions, or sexual desires of the perpetrator or the child is not required.

It is not a defense that the child may have consented to the act.

 

Continuous Sexual Abuse (Pen. Code, § 288.5(a))

 

To prove a person guilty of continuous sexual abuse, the prosecution must prove: 1. The defendant (lived in the same home with/ [or] had recurring access to) a minor child; 2. The defendant engaged in

three or more acts of (substantial sexual conduct/ [or] lewd or lascivious conduct) with the child; 3. Three or more months passed between the first and last acts; AND 4. The child was under the age of 14 years at the time of the acts.

Substantial sexual conduct means oral copulation or masturbation of either the child or the perpetrator, or penetration of the child’s or perpetrator’s vagina or rectum by (the other person’s penis/ [or] any foreign object).

Oral copulation is any contact, no matter how slight, between the mouth of one person and the sexual organ or anus of another person. Penetration is not required.

Lewd or lascivious conduct is any willful touching of a child accomplished with the intent to sexually arouse the perpetrator or the child. Contact with the child’s bare skin or private parts is not required.

Any part of the child’s body or the clothes the child is wearing may be touched. Lewd or lascivious conduct also includes causing a child to

touch his or her own body or someone else’s body at the instigation of a perpetrator who has the required intent.

The person must have committed three or more acts over a period of at least three months.

Actually arousing, appealing to, or gratifying the lust, passions, or sexual desires of the perpetrator or child is not required for lewd or lascivious conduct.

It is not a defense that the child may have consented to the act.

 

Annoying or Molesting a Child (Pen. Code, § 647.6(a)–(c))

 

To prove a person committed the crime of annoying or molesting a child, the prosecution must prove: 1. The defendant engaged in conduct directed at a child; 2. A normal person, without hesitation, would have been disturbed, irritated, offended, or injured by the defendant’s conduct; 3. The defendant’s conduct was motivated by an unnatural or abnormal sexual interest in the child; AND 4. The child was under the age of 18 years at the time of the conduct.

It is not necessary that the child actually be irritated or disturbed. It is also not necessary that the child actually be touched.

It is not a defense that the child may have consented to the act.

<Defense: Good Faith Belief Over 18> The defendant is not guilty of this crime if (he/she) actually and reasonably believed that the child was at

least 18 years of age. The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe the child was at least 18 years of age. If the People have not met this burden, you must find the defendant not guilty of this crime.

 

Aggravated Sexual Assault of Child Under 14 Years (Pen. Code, § 269(a))

 

To prove a person guilty of Aggravated Sexual Assault of Child Under 14 Years (Pen. Code, § 269(a)), the prosecution must prove that: 1. The defendant committed [a sex offense specified in Pen. Code, § 269 (a)(1)–(5) on another person; AND 2. When the defendant acted, the other person was under the age of 14 years and was at least seven years younger than the defendant.

 

Arranging Meeting With Minor for Lewd Purpose (Pen. Code, § 288.4(a)(1))

 

To prove a person is guilty of Arranging Meeting With Minor for Lewd Purpose (Pen. Code, § 288.4(a)(1)), the prosecution must prove: 1. The defendant arranged a meeting with (a minor / [or] a person (he/she) believed to be a minor); 2. When the defendant did so, (he/she) was motivated by an unnatural or abnormal sexual interest in children; [AND]

  1. At that meeting, the defendant intended to (expose (his/her) genitals or pubic or rectal area/ [or] have the minor expose (his/ her) genitals or pubic or rectal area/ [or] engage in lewd or lascivious behavior).

A minor is a person under the age of 18.

Lewd and lascivious behavior includes any touching of a person with the intent to sexually arouse the perpetrator or the other person. Lewd or lascivious behavior includes touching any part of the person’s body,

either on the bare skin or through the clothes the person is wearing. A lewd or lascivious act includes causing someone to touch his or her own body or someone else’s body at the instigation of the perpetrator who has the required intent.

 

Penal Code section 288.2 Exhibiting[,]/sending[,]/ distributing[,]/ [or] offering to exhibit or distribute) harmful material to a minor [or to a person the defendant believed was a minor]

 

To prove that a person guilty of (exhibiting[,]/ sending[,]/ distributing[,]/ [or] offering to exhibit or distribute) harmful material to a minor [or to a person the defendant believed was a minor] [in violation of Penal Code section 288.2], the prosecution must prove:

[1. The defendant (exhibited[,]/ sent[,]/ caused to be sent[,]/ distributed[,]/ [or] offered to exhibit or distribute) harmful material depicting a minor or minors engaging in sexual conduct to another person by any means;] or

[1. The defendant (exhibited[,]/ sent[,]/ caused to be sent[,]/ distributed[,]/ [or] offered to exhibit or distribute) harmful material to another person by any means;] 2. When the defendant acted, (he/she) knew the character of the material; 3. When the defendant acted, (he/she) knew, should have known, or believed that the other person was a minor; 4.

When the defendant acted, (he/she) intended to arouse, appeal to, or gratify the lust, passions, or sexual desires of (himself/herself) or of the other person; AND 5. When the defendant acted, (he/she) intended to engage in sexual intercourse, sodomy, or oral copulation with the other person or to have either person touch an intimate body part of the other person.

 

Failing to Register as a Sex Offender (Pen. Code, § 290(b).) 

 

To prove a person is guilty of failing to register as a sex offender [in violation of Penal Code section 290(b)], the prosecution must prove: 1. The defendant was previously (convicted of/found to have committed) an offense for which the person is required to register>; 2. The defendant resided a city, an unincorporated area or a city with no police department, on the campus or in the facilities of a university or college in California; 3.

The defendant actually knew (he/she) had a duty under Penal Code section 290 to register as a sex offender and that (he/she) had to register within  five working days AND [4. The defendant willfully failed to register as a   sex offender with the (police chief of that city/sheriff of that county/the police chief of that campus or its facilities) within five working days of (coming  into/ [or] changing (his/her) residence within) that (city/ county/campus).] <Alternative 4B—birthday> [4. The defendant willfully failed                        to annually update (his/her) registration as a sex offender with the (police chief of that city/ sheriff of that county/the police chief of that campus)  within five working days of (his/her) birthday.]

 

Distributing Child Pornography (Obscene Matter Showing Sexual Conduct by a Minor. (Pen. Code, §§ 311.1(a) 311.2

 

To prove a person is guilty of distributing child pornography, the prosecution must prove: [1. The defendant (sent/ [or] brought) obscene matter into California or caused obscene matter to be (sent/ [or] brought) into California; or [1. The defendant (possessed[,]/ [or] prepared[,]/ [or] published[,]/ [or] produced[,]/ [or] developed[,]/ [or] duplicated[,]/ [or] printed) obscene matter;] or [1. The defendant offered to distribute obscene matter to someone else;] or [1. The defendant (distributed/ [or] showed/ [or] exchanged) obscene matter (to/with) someone else;] 2. When the defendant acted, (he/she) knew the character of the matter; [AND] 3. When the defendant acted, (he/she) knew that the matter showed a person under the age of 18 years who was personally participating in or simulating sexual conduct(;/.) [AND 4. When the defendant acted, (he/she) intended to      (sell or distribute/distribute, show, or exchange/distribute) the matter to someone else [for money or other commercial benefit].]

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