Leal

Penal Code section 288, subdivision (b)(1), makes it a felony to commit a lewd act upon a child under the age of 14 years “by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury . . . .” Nearly two decades ago, the Court of Appeal defined the term “duress” as used in this statute to include a threat of hardship. (People v. Pitmon (1985) 170 Cal.App.3d 38, 49 [ 216 Cal.Rptr. 221 ].) The Legislature later incorporated this definition of “duress” into the statute defining rape (former Pen. Code, § 261, subd. (b), added by Stats. 1990, ch. 630, § 1, p. 3097) but in 1993 amended the definition of duress in the rape statute to delete the term “hardship,” and incorporated the same definition into the spousal rape statute. (Pen. Code, §§ 261, subd. (b), 262, subd. (c).)

For the reasons that follow, we conclude that the 1993 amendments of the rape and spousal rape statutes, to delete the term “hardship” from the definition of “duress” in rape, and incoiporate that definition into spousal rape did not alter the previously existing judicial definition of the term “duress” as used in Penal Code section 288, subdivision (b)(1), which did, and…