The Element of ''Force'' in Sex Crimes - Case Law: In People v. Griffin (2004) 33 Cal.4th 1015, the court looked to the statutory definition of rape in Penal Code section 261, subdivision (a)(2): "Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator . . . . . . (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." ( 261, subd. (a)(2).) The Supreme Court discerned no evidence that the Legislature intended "force" to have a specialized legal definition. (Griffin, supra, at pp. 1022-1023.) The Supreme Court observed that there was nothing in the common use of the term "force" or the language of section 261 that would suggest a heightened force requirement like that in People v. Cicero (1984) 157 Cal.App.3d 465 at page 474. (Griffin, supra, at p. 1023.) In contrasting the rape statute with section 288, the court emphasized that the Cicero court was focused on the distinctions between nonforcible lewd acts and forcible lewd acts, while that distinction does not arise in the context of the rape statute. (Griffin, supra, 33 Cal.4th at p. 1027.) The court reasoned: "The element of force in forcible rape does not serve to differentiate between two forms of unlawful sexual contact as it does under section 288. When two adults engage in consensual sexual intercourse, whether with or without physical force greater than that normally required to accomplish an act of sexual intercourse, the forcible rape statute is not implicated. The gravamen of the crime of forcible rape is a sexual penetration accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury." (Ibid.) The Supreme Court concluded that in a rape case, the "question for the trier of fact . . . is simply whether defendant used force to accomplish intercourse with the victim against the victim's will, not whether the force he used overcame the victim's physical strength or ability to resist him." (Griffin, supra, 33 Cal.4th at p. 1028.) In People v. Guido (2005) 125 Cal.App.4th 566, the Court of Appeal considered what amount of force was necessary to establish the aggravated sexual assault of a child by forcible oral copulation under section 269, subdivision (a)(4). That section provided that aggravated sexual assault of a child takes place when a person commits oral copulation (within the meaning of paragraph (2) or (3) of subdivision (c), or (d), of section 288a) on a child under 14 years of age and the perpetrator is more than a specified number of years older than the victim. (Guido, supra, at pp. 574-575.) At the time of the offenses in Guido, the perpetrator had to be 10 or more years older than the victim; the period is now seven years. ( 269, subd. (a) as amended by Stats. 2006, ch. 337, 6.) Considering both Cicero and Griffin, the Guido court observed that the statute prohibiting forcible oral copulation was more like that prohibiting rape than the lewd acts statute. "These concepts from Griffin, supra, 33 Cal.4th 1015 apply equally to the crime of forcible oral copulation. Consensual oral copulation, with or without physical force greater than that normally required to accomplish the act, is not unlawful except when accomplished under circumstances violative of section 288a. As with forcible rape, the gravamen of the crime of forcible oral copulation is a sexual act accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. As with forcible rape, it is only when one participant in the act uses force to commit the act against the other person's will that an otherwise lawful act becomes unlawful." (Guido, supra, 125 Cal.App.4th at p. 576.) The Guido court concluded that a special definition of "force" is not necessary and oral copulation by force is established when a reasonable trier of fact finds beyond a reasonable doubt that defendant accomplished an act of oral copulation by the use of force sufficient to overcome the victim's will. (Guido, supra, 125 Cal.App.4th at p. 576.) In comparing the acts of oral copulation and sodomy, the Guido court noted that both crimes were required to be "accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury." (Ibid.) In In re Asencio (2008) 166 Cal.App.4th 1195, the defendant was convicted of aggravated sexual assault of a child, not by means of forcible oral copulation as in Guido, supra, 125 Cal.App.4th 566, but by violating section 269, subdivision (a)(5), forcible sexual penetration within the meaning of section 289, subdivision (a). Section 289, subdivision (a)(1)(A) (former subdivision (a)(1)) provides, "Any person who commits an act of sexual penetration when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years." Rejecting the analysis of Cicero, and guided by the reasoning in Griffin, the In re Asencio court found that "the element of force in a forcible sexual penetration offense 'does not serve to differentiate between two forms of unlawful sexual contact as it does under section 288.'" (In re Asencio, supra, 166 Cal.App.4th at p. 1204 citing Griffin, supra, 33 Cal.4th at p. 1027.) The court reasoned that because "consensual sexual intercourse between adults does not violate the law against rape, then the law against forcible sexual penetration is not violated when adults engage in consensual sexual penetration, even if that penetration is accomplished by physical force greater than that normally required to accomplish an act of sexual penetration." (In re Asencio, supra, at pp. 1204-1205.) The court added: "The gravamen of the crime of forcible sexual penetration is a sexual penetration accomplished against the victim's will by means of force, violence, duress, menace, or the fear of immediate and unlawful bodily injury on the victim or another person, just as forcible rape under section 261, subdivision (a)(2) is sexual intercourse accomplished against the victim's will by force or other listed coercive means. (See Griffin, supra, at p. 1027; see also Guido, supra, 125 Cal.App.4th at pp. 574-576 applying Griffin rationale to forcible oral copulation.)" (In re Asencio, supra, at p. 1205.) In concluding that the forcible sexual penetration statute is conceptually akin to the rape statute, and seeing no reason to apply a different concept of the term "force" to forcible rape and forcible oral copulation on the one hand (per Griffin and Guido), and to forcible sexual penetration on the other, the In re Asencio court stated: "We conclude that forcible sexual penetration within the meaning of section 289, subdivision (a)(1) is proven when a trier of fact finds beyond a reasonable doubt that the defendant accomplished an act of sexual penetration by the use of force sufficient to overcome the victim's will. (Griffin, supra, 33 Cal.4th at p. 1028; Guido, supra, 125 Cal.App.4th at p. 576.)" (In re Asencio, supra, 166 Cal.App.4th at p. 1205.) In sum, in People v. Griffin (2004) 33 Cal.4th 1015, the California Supreme Court held that the definition of force developed by the Cicero court for application in forcible lewd conduct prosecutions did not apply to forcible rape as defined in section 261, subdivision (a)(2). (Griffin, supra, 33 Cal.4th at pp. 1018-1019.) The court explained there is a considerable difference between forcible rape and the crime of forcible lewd conduct that is set forth in section 288, subdivision (b)(2). (Griffin, supra, at p. 1026.) Penal Code Section 288 is broken down into forcible and nonforcible lewd acts against a child under age 14. ( 288, subds. (a) & (b).) " 'Subdivisions (b) now (b)(1) and (a) of section 288 on their face draw a distinction between those lewd acts that are committed by force and those that are not.' " (Griffin, supra, 33 Cal.4th at p. 1026.) The People v. Cicero (1984) 157 Cal.App.3d 465 court's definition of "force" turned on the need to distinguish between forcible and nonforcible lewd acts in section 288. According to the Supreme Court in Griffin, "that same distinction does not arise in the context of the rape statute. The element of force in forcible rape does not serve to differentiate between two forms of unlawful sexual contact as it does under section 288. When two adults engage in consensual sexual intercourse, whether with or without physical force greater than that normally required to accomplish an act of sexual intercourse, the forcible rape statute is not implicated. ... In a forcible rape prosecution the jury determines whether the use of force served to overcome the will of the victim to thwart or resist the attack, not whether the use of such force physically facilitated sexual penetration or prevented the victim from physically resisting her attacker." (Griffin, supra, 33 Cal.4th at p. 1027.) Thus, the question for the jury in a forcible rape case is "simply whether the defendant used force to accomplish intercourse with the victim against her will, not whether the force he used overcame the victim's physical strength or ability to resist him." (Id. at p. 1028.)