CALCRIM No. 1045

§ 289(a)(1) & (2), (g))

The defendant is charged [in Count] with sexual penetration by

force [in violation of Penal Code section 289].

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

prove that:

1. The defendant committed an act of sexual penetration with

another person;

2. The penetration was accomplished by using (a/an) (foreign

object[,]/ [or] substance[,]/ [or] instrument[,]/ [or] device[,]/ [or]

unknown object);

3. The other person did not consent to the act;

AND

4. The defendant accomplished the act:

<Alternative 4A—force or fear>

[by force, violence, duress, menace, or fear of immediate and unlawful

bodily injury to another person.]

<Alternative 4B—future threats of bodily harm>

[by threatening to retaliate against someone when there was a

reasonable possibility that the defendant would carry out the threat.

A threat to retaliate is a threat to kidnap, unlawfully restrain or

confine, or inflict extreme pain, serious bodily injury, or death.]

<Alternative 4C—threat of offıcial action>

[by threatening to use the authority of a public office to incarcerate,

arrest, or deport someone. A public official is a person employed by a

government agency who has authority to incarcerate, arrest, or

deport. The other person must have reasonably believed that the

defendant was a public official even if (he/she) was not.]

Sexual penetration means (penetration, however slight, of the genital or

anal opening of the other person/ [or] causing the other person to

penetrate, however slightly, the defendant’s or someone else’s genital or

anal opening/ [or] causing the other person to penetrate, however

slightly, his or her own genital or anal opening) for the purpose of sexual

abuse, arousal, or gratification.

[A foreign object, substance, instrument, or device includes any part of the

body except a sexual organ.] [An unknown object includes any foreign

object, substance, instrument, or device, or any part of the body,

including a penis, if it is not known what object penetrated the opening.]

[Penetration for sexual abuse means penetration for the purpose of

causing pain, injury, or discomfort.]

[To consent, a person must know the nature of the act or transaction

involved, act freely and voluntarily, and positively cooperate by act or

attitude.]

[Evidence that the defendant and the other person (dated/were married/

had been married) is not enough by itself to constitute consent.]

[Evidence that the other person (requested/suggested/communicated) that

the defendant use a condom or other birth control device is not enough

by itself to constitute consent.]

[An act is accomplished by force if a person uses enough physical force to

overcome the other person’s will.]

[Duress means a direct or implied threat of force, violence, danger,

hardship, or retribution that is enough to cause a reasonable person of

ordinary sensitivity to do [or submit to] something that he or she would

not otherwise do [or submit to]. When deciding whether the act was

accomplished by duress, consider all the circumstances, including the age

of the other person and (his/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.]

[An act is accomplished by fear if the other person is actually and

reasonably afraid [or (he/she) is actually but unreasonably afraid and the

defendant knows of (his/her) fear and takes advantage of it].]

<Defense: Reasonable Belief in Consent>

[The defendant is not guilty of forcible sexual penetration if (he/she)

actually and reasonably believed that the other person consented to the

act. The People have the burden of proving beyond a reasonable doubt

that the defendant did not actually and reasonably believe that the other

person consented. If the People have not met this burden, you must find

the defendant not guilty.]

New January 2006; Revised August 2016, April 2020, October 2021, March 2022,

February 2026

SEX OFFENSES CALCRIM No. 1045