Is sexual penetration a specific intent crime rather than a general intent crime?

California, United States of America


The following excerpt is from People v. Mankini, A140740 (Cal. App. 2015):

Defendant contends the above instructions were erroneous in two respects. First, defendant argues that the court erred in instructing the jury that the offense of sexual penetration is a general intent crime when it is actually a specific intent crime. (See People v. McCoy (2013) 215 Cal.App.4th 1510, 1538 ["[T]he crime of unlawful sexual penetration requires the specific intent to gain sexual arousal or gratification or to inflict abuse on the victim."]; People v. Ngo (2014) 225 Cal.App.4th 126, 161 ["sexual penetration

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of a child under 10 is a specific intent crime, requiring the jury to find the defendant penetrated the victim 'for the purpose of sexual arousal, gratification, or abuse.' "].) The Attorney General points out that at least one court has described the offense of sexual penetration as a general intent crime. (See People v. Dillon (2009) 174 Cal.App.4th 1367, 1380 ["[C]ontrary to the trial court's instruction under CALCRIM No. 252, forcible sexual penetration is a general intent crime. . . . [T]he mental state required to be found guilty of forcible sexual penetration is not the same as the specific intent to commit that crime."].) The Attorney General also argues, however, that the distinction is largely immaterial in this case because the jury was properly instructed that "in order to convict, the act of penetration must be accompanied by the intent to achieve sexual gratification." Therefore, any potential error, the Attorney General asserts, was not prejudicial because "[t]aking the jury instructions as a whole, it is not reasonably probable that the jury found appellant guilty of count one without determining that appellant had penetrated [the victim] for the purpose of sexual abuse, arousal, or gratification."

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