California Penal Code Section 261 - Sexual Battery by Fraudulent Representation
In People v. Dancy (2002) 102 Cal.App.4th 21, the defendant was convicted of raping an unconscious person ( 261, subd. (a)(4)).
The charging statute prohibits the rape of a person who "is at the time unconscious of the nature of the act, and this is known to the accused." (Ibid.)
The statute explains that " 'unconscious of the nature of the act' means incapable of resisting because the victim" met one of several specified conditions. ( 261, subd. (a)(4).)
At the time, section 261, subdivision (a)(4) recited three conditions which would qualify the victim as "unconscious of the nature of the act."
They were: "(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."
Ehen the Legislature created the crime of sexual battery by fraudulent representation, section 261 was amended to add subdivision (a)(4)(D) setting forth another condition qualifying as "unconscious of the nature of the act." Paragraph (D) reads: "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." ( 261, subd. (a)(4)(D).)
On appeal, the defendant contended that the trial court had erred in failing to instruct the jury on consent and reasonable belief in consent. (Dancy, supra, 102 Cal.App.4th at pp. 31, 34.)
He argued that although lack of consent was not a statutory element of rape of an unconscious person, the statute necessarily implied an element of lack of consent. (Id. at p. 34.)
The Dancy court rejected the contention.
First, the Dancy court found it significant that while the subdivision defining rape of an unconscious person does not contain a lack of consent element, other subdivisions of section 261 defining additional types of rape do contain the element of lack of consent.
Based upon the rule of statutory construction that a court should not imply a missing phrase in one portion of a statute when the Legislature uses it in another portion of the statute, the appellate court concluded: "By including a lack of consent element in the subdivisions setting forth the elements of several types of rape but not including a lack of consent element in the subdivision setting forth the elements of rape of an unconscious person, the Legislature obviously made an explicit choice not to require proof of lack of consent where the victim was unconscious at the time of the act of sexual intercourse." (Dancy, supra, 102 Cal.App.4th at p. 35.)
Second, the Dancy court reasoned that the phrase "incapable of resisting" "described the victim's actual lack of awareness of the act rather than ... the victim's hypothetical lack of consent to the act. Had the Legislature actually intended to require proof of the victim's actual or hypothetical lack of consent as an element of rape of an unconscious person, it would have been simple for the Legislature to include a lack of consent element as it did in other subdivisions of Penal Code section 261.
Its failure to do so is indicative of its decision that sexual intercourse with an unconscious person is a criminal sexual offense regardless of real or hypothetical consent." (Dancy, supra, 102 Cal.App.4th at p. 35.)