Sex Crimes

Penal Code Section 288 States:

“(a) Except as provided in subdivision (i), any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.

(b) (1) Any person who commits an act described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years.

(2) Any person who is a caretaker and commits an act described in subdivision (a) upon a dependent person by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, with the intent described in subdivision (a), is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years.”

People convicted of sex crimes often receive more severe sentences than those convicted of murder, manslaughter, or violent crimes.

LEWD CONDUCT UPON A CHILD: What the Prosecutor MUST Prove Beyond a Reasonable Doubt

Jury Instruction 1110. Lewd or Lascivious Act: Child Under 14 Years

The defendant is charged [in Count ] with committing a lewd or lascivious act on a child under the age of 14 years [in violation of Penal Code section 288(a)].

To prove that the defendant is guilty of this crime, the People must prove that:

<Alternative 1A—defendant touched child>

[1A. The defendant willfully touched any part of a child’s body either on the bare skin or through the clothing;]

[OR]

<Alternative 1B—child touched defendant>

[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.

The touching need not be done in a lewd or sexual manner.

Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.

[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.]

[Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun.]

The social stigma of being convicted of a sex crime, including, lifetime registration on the Internet as a sex offender, follows a convicted offender for the rest of his or her life. Many sex offenders are never able to restore their reputation or secure employment. Indeed, because even the location of their residence is government controlled, convicted offenders are compelled to live their lives in the constant shadow of their previous convictions. Tragically, many of those convicted are falsely accused.

Sex offenses include all forms of illegal sexual activity, ranging from the crime of rape, usually defined as sexual penetration without consent, to the crime of prostitution, usually defined as sex for hire. The most serious crimes involve the sexual assault of children “molestation” or include physical injury. Other sex offenses include:

• Public indecency
• Child annoyance
• Voyeurism
• Prostitution
• Solicitation
• Pornography
• Date rape
• Lewd acts
• Pandering
• Pimping
• Statutory rape
• Unlawful sodomy

Penal Code Section 261.5 States:

“(a) Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For the purposes of this section, a “minor” is a person under the age of 18 years and an “adult” is a person who is at least 18 years of age.

(b) Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor.

(c) Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison.

(d) Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison for two, three, or four years.”

Sex crimes in general are serious offenses with many extraordinarily serious consequences if convicted.

STATUTORY RAPE: What the Prosecutor MUST Prove Beyond a Reasonable Doubt

Jury Instruction 1070. Unlawful Sexual Intercourse with a Minor – Defendant 21 or Older

The defendant is charged [in Count ] with having unlawful sexual intercourse with a person who was under the age of 16 years at a time after the defendant had reached (his/her) 21st birthday [in violation of Penal Code section 261.5(d)].

To prove that the defendant is guilty of this crime, the People must prove that:

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.]

[Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun.]

<Defense: Good Faith Belief 18 or Over>

[The defendant is not guilty of this crime if (he/she) reasonably and actually believed that the other person was age 18 or older. In order for reasonable and actual belief to excuse the defendant’s behavior, there must be evidence tending to show that (he/she) reasonably and actually believed that the other person was age 18 or older. If you have a reasonable doubt about whether the defendant reasonably and actually believed that the other person was age 18 or older, you must find (him/her) not guilty.]

Penal Code Section 261 States:

“(a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:

(1) Where a person is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act. Notwithstanding the existence of a conservatorship pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving consent.

(2) Where it is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.

(3) Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused.

(4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, “unconscious of the nature of the act” means incapable of resisting because the victim meets one of the following conditions:

(A) Was unconscious or asleep.

(B) Was not aware, knowing, perceiving, or cognizant that the act occurred.

(C) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraud in fact.

(D) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose.

(5) Where a person submits under the belief that the person committing the act is the victim’s spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief.

(6) Where the act is accomplished against the victim’s will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph, “threatening to retaliate” means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death.

(7) Where the act is accomplished against the victim’s will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official. As used in this paragraph, “public official” means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official.”

If you are not a United States citizen, your immigration status or application for citizenship will be in jeopardy if convicted of a sex crime.

RAPE: What the Prosecutor MUST Prove Beyond a Reasonable Doubt

Jury Instruction 1000. Rape or Spousal Rape by Force, Fear, or Threats

The defendant is charged [in Count ] with rape [of his wife] by force [in violation of Penal Code section 261(a)].

To prove that the defendant is guilty of this crime, the People must prove that:

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

<Alternative 4A—force or fear>

[force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the woman or to someone else.]

<Alternative 4B—future threats of bodily harm>

[threatening to retaliate in the future against the woman or someone else when there was a reasonable possibility that the defendant would carry out the threat. A threat to retaliate is a threat to kidnap, falsely imprison, or inflict extreme pain, serious bodily injury, or death.]

<Alternative 4C—threat of offıcial action>

[threatening to use the authority of a public office to incarcerate, arrest, or deport someone. A public official is a person employed by federal, state, or local government who has authority to incarcerate, arrest, or deport. The woman must have reasonably believed that the defendant was a public official even if he was not.]

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.]

[A woman who initially consents to an act of intercourse may change her mind during the act. If she does so, under the law, the act of intercourse is then committed without her consent if:

1. She communicated to the defendant that she objected to the act of intercourse and attempted to stop the act;

2. She communicated her objection through words or acts that a reasonable person would have understood as showing her lack of consent;

[AND]

3. The defendant forcibly continued the act of intercourse despite her objection.]

[Evidence that the defendant and the woman (dated/were married/ had been married) is not enough by itself to constitute consent.]

[Evidence that the woman (requested/suggested/communicated) that the defendant use a condom or other birth control device is not enough by itself to constitute consent.]

[Intercourse is accomplished by force if a person uses enough physical force to overcome the woman’s will.]

[Duress means a direct or implied threat of force, violence, danger, or retribution that would cause a reasonable person to do [or submit to] something that she would not do [or submit to] otherwise. When deciding whether the act was accomplished by duress, consider all the circumstances, including the woman’s age and 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.]

[Intercourse is accomplished by fear if the woman is actually and reasonably afraid [or she is actually but unreasonably afraid and the defendant knows of her fear and takes advantage of it].]

[A woman must be alive at the time of the sexual intercourse for the crime of rape to occur.]

<Defense: Reasonable Belief in Consent>

[The defendant is not guilty of rape if he actually and reasonably believed that the woman consented to the 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. If the People have not met this burden, you must find the defendant not guilty.]