Review of Rape Laws in California Law - PC 261
The crime of rape is covered under California Penal Code 261 PC and described as non-consensual sexual intercourse by means of force, threats, or fraud.
A felony rape conviction can carry a sentence of up to 8 years in prison and a mandatory requirement to register as a sex offender for life.
It should be noted that rape charges don't always involve the use of physical force. For example:
- victim is unable to give consent due to intoxication;
- victim was unconscious;
- victim is incapable of consenting due to mental illness.
This means someone can be charged with PC 261 rape if they engage in sexual intercourse with another person and certain factors are met.
For instance, the unlawful sexual intercourse could occur:
- against someone's will, or
- without consent.
Rape charges could be filed if the unlawful act was achieved not just using force or violence, but also with duress, fear of bodily harm, fear of retaliation, or fraud.
To give readers a better understanding of California rape charges, our Los Angeles criminal defense lawyers are providing a detailed review below.
What is the Definition of Penal Code 261 PC Rape?
California Penal Code 261 PC defines rape as:
- “An act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under certain circumstances.”
This definition further lays out several situations where sexual intercourse can result in rape charges, including:
- overcoming victim's will by physical force or violence;
- duress, which means a direct or implied threat sufficient enough to coerce someone into sexual activity they would not have otherwise done;
- menace, which means a threat or act showing intent to inflict an injury on someone;
- fear of bodily harm or retaliation, which means there are threats to kidnap, imprison, or inflict serious injury or death on the victim;
- fraud, which means using tricks or deceit to convince someone to have sexual intercourse.
As you can see, the common theme contained within Penal Code 261 PC rape is prohibiting sexual intercourse without consent of the other person.
Obviously, PC 261 rape is normally charged when there is some type of physical force or violence.
However, it's important to understand that someone can also face PC 261 rape charges when the lack of consent is related to threats, coercion, or trickery.
Lack of consent to sexual intercourse
It's also considered a lack of consent where the victim is:
- incapable of giving consent due to intoxication,
- lack of consciousness, or
- mental illness.
Also, someone who gave initial consent to sexual intercourse can change their mind during sex and no longer give consent.
Legally, consent means cooperation is an act or attitude as an exercise of free will.
How Do Prosecutors Prove a PC 261 Rape Case?
If you were charged with PC 261 rape, the prosecutor must be able to prove several important factors to obtain a conviction.
These are known as the “elements of the crime” and will vary some based the specific circumstances of the rape charges.
These factors include:
- you engaged in sexual intercourse with an alleged victim, where any type of penetration occurred;
- alleged victim didn't give you consent to have sexual intercourse;
- you used force, violence, duress, fear, or fraud, in order to have sexual intercourse;
- you were not married to alleged victim at the time of the incident.
In order to prove PC 261 rape, full penetration of victim is not required. In fact, even slight penetration is sufficient for a conviction and it doesn't matter if ejaculation occurred.
What Are the Penalties for A PC 261 Rape Conviction?
If you are convicted of the felony crime of Penal Code 261 rape, the penalties include:
- 3, 6, or 8 years in a California state prison;
- felony probation.
If the victim was a minor under 14 years old, the penalties include:
- 9, 11, or 13 years of incarceration.
If the victim was a minor between the ages of 14 and 18, the punishment includes:
- 7, 9, or 11 years in state prison.
If the victim sustained a great bodily injury while committing the crime, the penalty include:
- An additional 3 to 5 years in prison.
In rape cases, the defendant could be ordered to:
- pay up to $10,000 fine, and;
- may receive a “strike” under California's Three-Strikes law.
Most PC 261 rape convictions will require lifetime registration as a sex offender under California Penal Code 290 PC.
Finally, rape is considered a crime involving moral turpitude. This means an undocumented immigrant could:
- face deportation, or;
- denied entry into the United States.
What are the Related California Offenses for Rape?
- Penal Code 243.4 PC - sexual battery,
- Penal Code 261.5 PC - statutory rape,
- 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.
How Can I Fight PC 261 Rape Charges?
If you were accused of California Penal Code 261 rape, our Los Angeles criminal lawyers can use a variety of strategies to fight the charges.
The most common defenses include:
- alleged victim gave consent,
- insufficient evidence,
- false allegation.
The most crucial issue in a rape prosecution is related to consent, or the lack thereof.
We might be able to make an argument the:
- sexual activity with the alleged victim was in fact consensual, which is a complete defense to rape charges.
This could be established through cross-examination of the complaining witness.
Rape Shield laws
However, there are evidentiary protections in California, such as the “Rape Shield” laws. These laws:
- place a limit on the topics of cross-examination for any alleged victim of sexual assault.
Your criminal attorney will be able to provide you advice, if any, that are legitimate to establish consent to sex was actually present and that you have been falsely accused.
In some rape cases, we might be able to make a reasonable argument:
- there is insufficient evidence that sexual intercourse even occurred.
Perhaps you were engaged in sexual activity with the alleged victim, but it never rose to the level of sexual intercourse.
In some PC 261 rape cases, the alleged victim has falsely accused the defendant because of:
- revenge, or
There have been cases where someone was wrongfully arrested and charged after an alleged victim made false accusations of rape against them.
Contact Eisner Gorin LLP If Charged with Rape in California
Obviously, Penal Code 261 rape is a serious crime that carries a long-term prison sentence if convicted.
If you or a family member were accused a rape, call our skilled Los Angeles criminal defense lawyers to review the details of the case.
Your best chance at a favorable outcome is to retain an experienced lawyer at the earliest possible stage of the proceedings.
Through pre-filing intervention, we might be able to get the charges reduced or dismissed even before going to court.
Eisner Gorin LLP is a top-ranked criminal defense law firm located at 1875 Century Park E #705, Los Angeles, CA 90067.
Our main office is next to the Van Nuys Courthouse at 14401 Sylvan St #112 Van Nuys, CA 91401.
Contact our office for an in initial consultation at (310) 328-3776.