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Rape in Several California Statutory Forms

Posted by Dmitry Gorin | Sep 22, 2021

Review of California's Rape Laws, Penalties, and Best Defenses

The serious felony crime of rape is described as non-consensual sexual intercourse by means of force, threats, or fraud.

A rape conviction carries a sentence of up to 8 years in California state prison and a mandatory requirement to register as a sex offender for life.

Rape in Several California Statutory Forms
California's rape laws don't always involve someone using force for non-consensual sex.

If the victim was a minor between the ages of 14 and 18, then the penalties include up to 11 years in prison.  

Rape cases don't always involve someone using physical force. Examples include a situation where the victim is unable to give sexual consent due to intoxication, was unconscious, or they were incapable of consenting due to mental illness.

Put simply, anyone can be charged with Penal Code 261 PC rape if they engage in sexual intercourse with someone and specific factors are met, such as it was against their will or without consent.

Further, someone can face rape charges if the act was achieved by not just use of force or violence, but also fear of bodily harm or retaliation, duress, menace, or fraud.

Our Los Angeles criminal defense lawyers are providing a review below of all the various statutes related to rape.

Rape – Penal Code 261 PC

California Penal Code 261 PC defines the state's several forms of rape crime. While some states label the crime sexual assault or criminal sexual conduct (CSC) in various degrees, California calls the crime by its traditional name rape.

Under Penal Code 261(a). rape is:

  • “an act of sexual intercourse accomplished with a person not the spouse of the perpetrator.”

This is under at least one of the statute's listed conditions equivalent to the absence of lawful consent.

PC 261 rape prohibits sexual intercourse without consent of both parties. Further, someone who initially gives consent to sexual intercourse can change their mind during sex and withdraw consent.

In order for the prosecution to prove PC 261 rape, full penetration of victim is not required. Even just slight penetration is sufficient for a conviction and it does not matter if ejaculation occurred.

Those differing ways in which perpetrators accomplish non-consensual sexual intercourse are Penal Code 261's several forms of rape crime.

Rape by Force or Threat – Penal Code 261(a)(2) PC

The most obvious form of a rape crime is rape by force or coercion. Penal Code 261(a)(2) PC defines forceful rape as sexual intercourse:

  • “against a person's will by means of force, violence, duress, menace, or fear of immediate unlawful bodily injury on the person or another.”

Subsection (a)(6) extends the rape by threat form to include threats of future harm if a reasonable possibility exists that the perpetrator will follow through on the threat.

Subsection (a)(7) further extends the rape by threat to include threats made by use of “the authority of a public official to incarcerate, arrest, or deport the victim or another,” if the victim reasonably believes that the perpetrator is a public official.

Rape of the Mentally Disabled – Penal Code 261(a)(1) PC

Penal Code 261(a)(1) PC defines another form of a rape crime as sexual intercourse with a person:

  • “incapable, because of a mental disorder or developmental or physical disability, of giving legal consent.”

This applies if the perpetrator knew or should have known of the victim's incapability.

An actor who reasonably believes that a person has given consent, without knowing that the person was mentally disabled and under circumstances where the actor should not reasonably have known, has not committed rape, even though the person was mentally disabled.

Rape of One Incapable of Consent – Penal Code 261(a)(3) PC

Penal Code 261(a)(3) and (a)(4) extend the mentally incapable form of the rape crime to include not just persons with mental disorders but also the intoxicated, anesthetized, unconscious, asleep, or otherwise unaware or incapable of resisting.

This form of rape crime would include date rape, where the perpetrator induces the victim to ingest a substance that makes the victim incapable of resisting.

Statutory Rape – Penal Code 261.5 PC

Penal Code 261.5 PC extends a rape crime to include sexual intercourse with a person who is not the perpetrator's spouse and who is a minor, defined as under age eighteen.

Put simply, PC 261.5 statutory rape laws makes it a crime to have sex with someone under 18 years old, but not all prosecutions are the same.

If the perpetrator and victim are within three years of one another, then Penal Code 261.5(b) limits the statutory rape crime to a misdemeanor.

California does not have a Romeo and Juliet statute decriminalizing sex between teenagers. If the victim is more than three years younger than the perpetrator, the statutory rape crime can be a misdemeanor or felony.

Under the current legal definition, you could be charged with statutory rape even if the:

  • sexual activity was consensual;
  • sexual act was initiated by the minor; or
  • you are also a minor.

Penal Code 261.5 also imposes civil penalties from $2,000 to $25,000, depending on the ages of the perpetrator and victim.

Rape by Fraud or Artifice – Penal Code 261(a)(5) PC

Penal Code 261(a)(5) PC extends the rape crime to include where the perpetrator induces the victim to believe that the perpetrator is someone else the victim knows and to whom the victim would consent. The inducement may be:

  • “by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief.”

Penal Code 261(a)(4)(c) and (4)(d) extend the rape crime not just to fraud as to the perpetrator's identity but also fraud as to the act that the perpetrator intends.

Punishments for a Rape Conviction in California

Penal Code 264 PC provides for the punishment of rape by a penalty of:

  • three, six, or eight years in prison,
  • felony probation.

The penalties increase to seven, nine, or eleven years in prison for the rape of a minor age fourteen or older, and to nine, eleven, or thirteen years for rape of a minor under age fourteen.

If the victim sustained a great bodily injury while committing the crime, then the punishment includes an additional 3 to 5 years in prison.

In rape cases, the defendant could be ordered to pay up to $10,000 fine, and might receive a “strike” under California's three strikes law.

Most PC 261 rape convictions will require a defendant to register as a sex offender under California Penal Code 290 PC.

Rape is considered a crime involving moral turpitude, meaning an undocumented immigrant could face deportation or denied entry into the United States.

Related Crimes

While Penal Code 261 excludes non-consensual sex between spouses from its definition of rape crime, violence between spouses, including non-consensual sex, may be a domestic violence crime.

Penal Code 13700 defines domestic violence as abuse committed against a spouse, former spouse, or another cohabitant.

Penal Code 273.5 PC also criminalizes corporal injury of a spouse, former spouse, or another cohabitant. Other California domestic violence crimes related to rape include:

  • domestic battery under Penal Code 243(e)(1);
  • criminal threats under Penal Code 422;
  • stalking under Penal Code 646.9;
  • aggravated trespass under Penal Code 601; and
  • revenge porn under Penal Code 647(j)(4).

There are also several other types of crimes that are related to PC 261 rape, including the following:

  • Penal Code 243.4 PC - sexual battery;
  • Penal Code 262 PC - spousal rape;
  • Penal Code 289 PC - forcible penetration with a foreign object;
  • Penal Code 287 PC - oral copulation by force or fear;
  • Penal Code 288a PC - oral copulation with a minor;
  • Penal Code 220 PC - assault with intent to commit a felony;
  • Penal Code 286 PC - sodomy.

Defenses to Rape Crimes

Defenses to rape crimes may begin with evidence of the alleged victim's consent.

The most crucial issue in a rape prosecution is directly related to consent, or the lack thereof.  We might be able to argue sexual activity with the alleged victim was in fact consensual, which is a complete defense to rape charges.

Defenses to Rape Crimes in California
Contact our law firm to review all the details of the case and discuss legal options.

This might be established through cross-examination of the complaining witness. 

That evidence may raise a reasonable doubt that the defendant committed any form of rape crime.

A defendant may also defend certain forms of a rape crime with evidence that the defendant reasonably believed in the putative victim's capability of giving consent, such as when the victim has a mental disorder about which the defendant did not know.

The defendant may also be able to prove that there was no sexual intercourse, or there is insufficient evidence to prove it beyond a reasonable doubt.

In some PC 261 rape cases, the alleged victim made false allegations against a defendant because of jealously, revenge, or anger.

We might be able to persuade the prosecutor from filing formal charges before court through a process known as prefiling intervention, or negotiate to get the rape charges reduced or dismissed.

Eisner Gorin LLP is located in Los Angeles County and you can contact our law firm for an initial consultation at (877) 781-1570.

About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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