I’m charged with a sex crime.   Am I going to be convicted? What is my defense?

The first place to look when charged with a crime is the California Jury Instructions, or CALCRIM. These jury instructions are what judges and juries use to decide whether or not to vote guilty or not guilty at trial. Although the vast majority of cases settle or resolve with a negotiated plea bargain, it is extremely important to know what the prosecutor must prove at trial in order to know precisely how to defend against these charges long before trial begins.

There are various sex offenses a person can be charged with in California. Below are just a few jury instructions for some of these offenses.

 

  1. Indecent Exposure

The defendant is charged [in Count ______] with indecent exposure.

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

  1. The defendant willfully exposed (his/her) genitals in the presence of another person or persons who might be offended or annoyed by the defendant’s actions;
[AND]
  1. When the defendant exposed (himself/herself), (he/she) acted lewdly by intending to direct public attention to (his/ her) genitals for the purpose of sexually arousing or gratifying (himself/herself) or another person, or sexually offending another person(;/.)

<Give element 3 if defendant charged with entering inhabited dwelling>

[AND] [3. The willful and lewd exposure occurred after the defendant had entered an inhabited (dwelling house/part of a building/trailer coach) without consent.]

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.

[It is not required that another person actually see the exposed genitals.] [A (house/part of a building/trailer coach) is inhabited if someone uses it as a dwelling, whether or not someone is inside at the time of the alleged indecent exposure.] [A (house/part of a building/trailer coach) is inhabited if someone used it as a dwelling and left only because a natural or other disaster caused him or her to leave.] [A (house/part of a building/trailer coach) is not inhabited if the former residents have moved out and do not intend to return, even if some personal property remains inside.] [A house includes any (structure/garage/office/ <insert other description>) that is attached to the house and functionally connected with it.] [A trailer coach is a vehicle without its own mode of power, designed to be pulled by a motor vehicle. It is made for human habitation or human occupancy and for carrying property.] [A trailer coach is [also] a park trailer that is intended for human habitation for recreational or seasonal use only and

  1. has a floor area of no more than 400 square feet;
  2. is not more than 14 feet wide;
  3. is built on a single chassis;

AND

  1. may only be transported on public highways with a permit.]

 

 

 

1122. Annoying or Molesting a Child

The defendant is charged [in Count ______] with annoying or molesting a child.

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

  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

  1. 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.] [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 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.]

 

 

  1. Rape or Spousal Rape by Force, Fear, or Threats

The defendant is charged [in Count ______] with rape [of his wife] by force.

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

  1. 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 official 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

  1. 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.]

 

Whether or not you will be convicted of these charges largely depends on mounting a strong defense. We at The Hong Firm are committed to building a fierce defense for you – always in anticipation of trial.