Convictions for rape and sexual penetration by artifice, pretense or concealment can be based on passive, as opposed to active, concealment. Appellant entered a residence through a window and had sexual with a woman who was sleeping next to her husband. The victim was extremely drunk and believed appellant was her husband. As a result of his acts, a jury convicted appellant of, inter alia, rape and sexual penetration by artifice. (Pen. Code, §§ 261, subd. (a)(5), 289, subd. (f).) Both of these statutes proscribe sex acts where the victim consents under the mistaken belief the perpetrator is the victim’s spouse, and the perpetrator induced this belief by artifice, concealment, or pretense. On appeal, appellant challenged the sufficiency of evidence to support both convictions, particularly that he induced the victim’s mistaken belief through artifice, pretense or concealment, or that he specifically intended to induce that belief. The appellate court affirmed. A jury could reasonably conclude that appellant used deceptive methods when he quietly entered the home and proceeded to have sex with the victim. Relying on precedent which found misrepresentation by passive concealment, the court found appellant’s “silence spoke volumes.”
Assault with intent to commit rape (Pen. Code, § 220, subd. (a)) is not a lesser included offense of rape by artifice, pretense or concealment (Pen. Code, §261, subd. (a)(5)). Appellant argued his conviction for assault with intent to commit rape had to be reversed since it was a lesser included offense of rape by artifice, pretense or concealment. Applying the statutory elements test, the court found it was not. Assault with intent to commit rape requires an application of force against the victim. In contrast, rape by artifice is accomplished without force because the perpetrator induces the victim to submit by pretending to be a spouse.