People v. Giardino

82 Cal. App. 4th 454, 98 Cal. Rptr. 2d 315 (2000)



In the context of rape, "against the victim's will" is synonymous with "without the victim's consent." Therefore, by specifically referring to intercourse accomplished against the victim's will, Cal. Penal Code § 261(a)(2) (force or duress), Cal. Penal Code § 261(a)(6) (threat of retaliation), and Cal. Penal Code § 261(a)(7) (threat of detention or deportation) describe instances in which the victim has not actually consented. The same is true when the victim is not aware of the nature of the act, Cal. Penal Code § 261(a)(4)(C), or has been deceived into believing that the defendant is the victim's spouse, Cal. Penal Code § 261(a)(5). In those cases, there is no actual consent because the victim lacks knowledge of the nature of the act or transaction. Cal. Penal Code § 261.6. By contrast, Cal. Penal Code § 261(a)(1) proscribes sexual intercourse with a person who lacks the capacity to give legal consent due to a mental disorder or a developmental or physical disability.


Defendant was charged with rape by intoxication and oral copulation by intoxication. The trial court refused defendant's request that the jury be instructed either that lack of consent was an element or that consent was a defence and was convicted. The case was appealed to the Court of Appeal of California.


Was the conviction proper?




Although, the court upheld the trial court’s denial of defendant's request to instruct the jury either that lack of consent was an element or that consent was a defense, the trial court erred in failing to explain to the jury the meaning of "prevented from resisting." In particular, the court should have instructed that the jury's task was to determine whether, due to her level of intoxication, the victim lacked legal capacity to give "consent." There was substantial evidence both that the victim actually consented and that she possessed the legal capacity. However, there was also evidence that the victim was not so intoxicated that she was deprived of the ability to exercise reasonable judgment, thus the trial court's failure to properly instruct the jury was not harmless.

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