In California, the terms “rape” and “sexual assault” are often used interchangeably in everyday conversation, but legally, these terms carry different definitions, legal standards, penalties, and defense strategies.
Generally, you commit the felony crime of Penal Code 261 PC rape if you have non-consensual sexual intercourse with another person by means of physical force or threats. “Sexual intercourse” means any penetration, no matter how slight, of the vagina or genitalia by the penis, and ejaculation is not required.
A key element of rape is that the alleged victim does not consent to having sex. To consent, someone must act freely and voluntarily and know the nature of the act.
Certain people are incapable of legally consenting to sex, no matter what they say or do, such as those who are severely intoxicated people, people with serious mental disorders, and those who are unconscious or asleep.
In contrast, you commit the wobbler (misdemeanor or felony) crime of Penal Code 243.4 PC sexual assault if you make sexual contact with someone, such as unwanted touching of their intimate parts without their consent. Sexual assault is often called sexual battery or sexual abuse.
Simply put, sexual assault generally means touching another person's intimate parts without consent and for the purpose of sexual gratification, arousal, or abuse.
PC 243.4 says, “(a) Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery.”
If you are accused of either, understanding the legal difference between rape and sexual assault can inform you regarding possible penalties you might face.
What are the Definitions Under California Law?
Rape, as defined by California Penal Code 261 PC, is a specific form of sexual assault defined as nonconsensual sexual intercourse (further defined as penetration, no matter how slight) achieved through force, threats, fraud, or when the victim is incapacitated and unable to give consent.
This includes situations where the victim is intoxicated, unconscious, or mentally incapable of understanding the nature of the act. It's also important to note that as of 2021, marital rape is no longer charged in California as a lesser crime. Nonconsensual sex with a spouse is still rape and is treated with the same level of severity as any other act of rape.
Penal Code 261.5 PC statutory rape is a separate and distinct sex crime from rape. You violate this law if you have sexual intercourse or sexual activity with a minor under the age of consent, which is 18 years old. It does not matter if the minor willingly participated in a sex act, as they are legally incapable of consenting to have sex.
Sexual assault, on the other hand, encompasses a broad spectrum of nonconsensual sexual activities beyond intercourse, including unwanted touching, fondling, or any other sexual contact achieved through force, coercion, or when the victim is unable to consent.
“Intimate parts” generally means the genital area, anus, groin, inner thighs, or female breasts. Unlike rape, sexual assault does not require penetration to meet its legal definition.
Which Crimes Can Be Filed?
Some of the specific crimes that come under the umbrella of sexual assault include:
- Sexual Battery (Penal Code 243.4 PC): The most common form of sexual assault, this offense involves the nonconsensual touching of another person's intimate parts for the purpose of sexual arousal, gratification, or abuse. PC 243.4(b) covers the sexual battery of institutionalized victims.
- Sodomy (Penal Code 286): The act of engaging in anal or oral copulation with another individual without their consent, or with someone unable to legally consent due to age, mental disorder, or physical disability.
- Forcible Acts of Sexual Penetration (Penal Code 289 PC): The act of penetrating another person's body with a foreign object without their consent, achieved through force, coercion, or when the victim is incapacitated.
- Oral Copulation through Force or Fear (Penal Code 287 PC): The act of engaging in oral sexual contact with another person without their consent, or with someone unable to legally consent due to age, mental disorder, or physical disability.
Rape vs Sexual Assault
The primary difference between rape and sexual assault in California is the nature of the act itself. Rape specifically involves penetration, no matter how slight, whereas sexual assault concerns nonconsensual contact with an intimate part of another's body, not necessarily involving penetration.
Consent
Both rape and other forms hinge on the issue of consent, but the context in which consent is violated differs. In cases of rape, lack of consent pertains to the act of sexual intercourse itself. For sexual assault, the lack of consent relates to the inappropriate touching of any intimate body part.
Penetration vs. Touching
The requirement of penetration for an act to qualify as rape is a significant legal distinction. Sexual assault, however, does not require any form of penetration but focuses instead on the violation of personal boundaries through touch.
What are the Penalties for Rape vs. Sexual Assault?
Rape is considered a more severe crime and carries heavier penalties. It is classified as a felony in California, with potential sentences including:
- Imprisonment in state prison for three, six, or eight years.
- Penalties can substantially increase in cases involving aggravating factors like the use of weapons, causing severe bodily injury, or assaulting minors.
Sexual assault is penalized according to the specific charge and nature and circumstances of the offense. For example:
- Sexual battery with no aggravating circumstances is generally treated as a misdemeanor with penalties of up to six months in county jail.
- If the assault involves aggravating factors such as the restraint or serious bodily injury of the victim, it can be charged as a felony, leading to state prison time of up to four years.
- Forcible oral copulation is always charged as a felony and can result in a prison sentence of up to 8 years.
In addition to the penalties above, note that both rape and sexual assault typically result in required registration as a sex offender. Additionally, many felony versions of sexual assault (and all instances of rape) will count as a “strike” under California's Three Strikes Law.
What are the Common Defense Strategies?
When facing charges of rape or sexual assault, several defense strategies may be employed to challenge the prosecution's case. These include, but are not limited to:
- Consent: Presenting evidence that the accuser willingly participated in the sexual activity without coercion, force, or incapacitation.
- Mistaken Identity: In some cases, the defense may argue that the accused was not the perpetrator, asserting mistaken identity. This strategy relies on creating reasonable doubt about the accused's presence at the scene or involvement in the crime.
- False Accusation: It's not uncommon for an alleged victim to falsely accuse someone of rape or sexual assault. The attorney may provide evidence that directly refutes this claim.
Contact our law firm for more information. Eisner Gorin LLP has offices in Los Angeles, CA.
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