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The Crime of Rape Under California Law - Penal Code 261

Posted by Dmitry Gorin | Jun 07, 2022

California Penal Code 261 PC lays forth laws regarding the crime of rape. Under the law, it is considered rape if a person uses force, threats, or fraud to engage in non-consensual sexual intercourse with another person. What constitutes rape is when non-consensual intercourse occurs with someone who is:

  • incapable of consenting to the act because they are intoxicated;
  • subjected to force, violence, or extreme duress as a means of engaging in the act;
  • incapable of consenting due to a mental disorder; or
  • unconscious while the incident occurs.

As you can see, rape cases don't always involve someone using physical force. Any person can be charged with PC 261 rape if they engage in sexual intercourse with someone and specific factors are met, such as it was against their will or without consent.

The Crime of Rape Under California Law
Rape is non-consensual sexual intercourse against someone's will or who is incapable of giving consent.

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

Penal Code 261(a) says rape is “an act of sexual intercourse accomplished with a person, not the perpetrator's spouse.” A felony rape conviction carries up to 8 years in prison and a mandatory requirement to register as a sex offender for life.

Someone is only guilty of rape if the other party does not give consent. To agree to have sex consensually, someone must understand what the act of sexual intercourse entails and must agree of their own accord to engage in it with the other person voluntarily.

Even when a person gives consent initially, they can change their mind during sexual intercourse. If they explicitly tell the person they no longer want it to continue, and the other party does not acknowledge their request and forces them to continue, it is considered rape.  In this article by our California criminal defense lawyers, we will examine this law further below.

What Are Some Examples of Forcible Rape?

The crime of rape can occur in many ways and can be charged regardless if there are not any allegations of force.

The most common form of rape is by force or coercion. Penal Code 261(a)(2) PC defines forceful rape as sexual intercourse “against someone's will by means of force, violence, duress, menace, or fear of immediate unlawful bodily injury on the person or another.”

Subsection (a)(6) expands the rape by a threat to include threats of future harm. If a reasonable possibility exists, the perpetrator will follow through on the threat.

Subsection (a)(7) further expands a rape by a 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 has a reasonable belief the perpetrator is a public official.

If someone forced another into consenting to sexual intercourse, the person who used force could be charged with rape because the victim did not freely consent. The following hypothetical scenario is an example of what would be considered rape. 

  • A man meets a woman online. After the date progresses, the man invites the woman back to his place for a drink. While there, the man and woman kiss, but the woman refuses to go further. The man kept trying to have sex with the woman, and she kept refusing and ultimately decided that she wanted to leave. The man then told the woman that he would not let her go until she agreed to have sex with him. The man and woman than have sex, and the woman leaves shortly after that.

The man holding the woman against her will until she agreed to sex would be considered forcible rape.

What Are the Penalties for Rape Convictions?

All rape charges are prosecuted as felonies. If convicted, the individual faces up to eight years of state prison time and felony probation.

Penalties for Rape Convictions
A Penal Code 261 PC rape conviction carries up to 8 years in state prison along with felony probation.

If during the rape the victim was seriously harmed, the offender can also be sentenced to additional prison time, with a further three to five years.

In situations where a victim is a minor, the length of prison time increases even further. If the accused had sex with a minor under the age of eighteen, they face up to an additional eleven years; if the minor is under the age of 14, the sentence increases to thirteen years.

Almost all rape convictions come with a lifetime sex offender registration requirement.

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

Further, the defendant could be ordered to pay up to a  $10,000 fine and receive a “strike” under California's Three-Strikes law. There is a three-tier sex offender registration system in California.

Does a Rape Conviction Affect Immigration Status?

Yes. A conviction for rape will negatively affect a person's immigration status if they are a visa holder or a legal permanent resident. Under United States immigration law, certain offenses are considered crimes of moral turpitude or aggravated felonies.

Offenses of this nature can result in the removal of inadmissibility. Individuals who are deemed inadmissible may not enter the United States.

Can the Crime of Rape Be Expunged?

Yes, but only if the conviction results in felony probation. Rape convictions are expungable only if the offender is given felony probation as punishment instead of an automatic felony. Expungements are not possible when a defendant's sentence involves prison time.

What Are the Related Offenses?

Several California statutes are related to the crime of Penal Code 261 PC rape, including:

What Defenses Are Available for Charges of Rape?

Several defenses are available to individuals accused of having committed the crime of rape. They are:

  • The other party gave the defendant consent. Someone is not considered to have committed rape if it can be shown via evidence that they were reasonably led to believe the sex was consensual;
  • Though sexual acts may have taken place, no sexual intercourse occurred. For there to be a charge of rape, the incident has to satisfy the criteria of what constitutes rape under the law. Sexual activity alone without intercourse is not considered rape;
  • The defendant was falsely accused. A charge of rape may happen out of anger, jealousy, or an attempt by the other party to seek revenge.

Defenses of rape often begin with evidence of the alleged victim's consent. The primary issue in a rape prosecution is related to consent, or the lack thereof.

Legal Defenses for Charges of Rape
There are several common legal defenses to challenge allegations that you committed the crime of rape.

Perhaps we can make a reasonable argument the sexual activity with the alleged victim was, in fact, consensual, which is a complete defense to rape charges. This might be accomplished through cross-examination of the complaining witness. 

However, there are evidentiary protections in California, like the “Rape Shield” law that limit cross-examination topics for any alleged victim of sexual assault.

Perhaps we can make a reasonable argument that there is insufficient evidence that sexual intercourse occurred. Maybe you were engaged in other sexual conduct with the alleged victim, but it did not progress to sexual intercourse.

Further, we might be able to convince the prosecutor not to file formal criminal charges through a process called prefiling intervention, or perhaps we can negotiate to get the rape charges reduced or even dismissed.

Eisner Gorin LLP is based in Los Angeles County, and you can contact us for an initial case review by calling (310) 328-3776 or using the contact form.

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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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