Penal Code 266c PC - Unlawful Sexual Intercourse in California
In the most general sense, any form of sexual intercourse that does not have the full, unforced consent of both parties is against the law in California.
To that end, Penal Code 266c PC makes it a crime to use pretenses of fear to induce another person to engage in sex. If you're convicted of this crime, depending on the case facts, you could spend up to four years in state prison.
PC 266c says, “Every person who induces any other person to engage in sexual intercourse, sexual penetration, oral copulation, or sodomy when his or her consent is procured by false or fraudulent representation or pretense that is made with the intent to create fear, and which does induce fear, and that would cause a reasonable person in like circumstances to act contrary to the person's free will, and does cause the victim to so act, is punishable by imprisonment in a county jail for not more than one year or in the state prison for two, three, or four years.”
To be convicted for violating PC 266c, the prosecution has to prove that you engaged in the act of sexual intercourse with someone against their will, consent was obtained by false or fraudulent representation, and the sex act was committed by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the victim or someone else.
“Fear” in the context of this law means fear of physical injuries, such as threats of harm if they don't engage in the sex act with them. This crime does not just include rape but also sodomy or oral copulation.
A closely related crime is Penal Code 266 PC enticing a child to prostitution law, which makes it a crime to entice a minor into a brothel for prostitution or fraudulently procure a minor to have sexual intercourse with another person. Let's review this state law in more detail below.
What Does the Law Say?
PC 266c makes it a crime to engage in sex with someone else when you have procured their “consent” through “false or fraudulent representation or pretense that is made with the intent to create fear, and which does induce fear, and that would cause a reasonable person in like circumstances to act contrary to the person's free will.”
The idea behind this law is that consent obtained by deceit or fear is not true consent. Other things to understand about this law:
- Actions under the heading of “unlawful sexual intercourse” in this case include sexual intercourse, sexual penetration, oral copulation, and sodomy. Other unwanted sexual acts come under the heading of other statute violations.
- Under this law, “fear” refers to the fear of personal injury or death, as well as fear of injury or death to any relative or family member of the victim. In other words, fear is caused by threats of harm or death to the victim or their loved ones.
What Are Some Examples?
EXAMPLE 1: Daniel meets Jessica on the Internet, and they meet for a date. Toward the end of the date, Daniel pressures Jessica to engage in sexual intercourse with him, invoking fear by telling her, “The last woman who said no to me died.”
Jessica, afraid for her safety, reluctantly agrees. Therefore, Daniel can be charged with unlawful sexual intercourse under PC 266c.
EXAMPLE 2: Maria meets Sam at a bar, and they go back to his house. Sam has been drinking, and as soon as they enter the bedroom, he insists on having sex with Maria.
He tells her he has been keeping tabs on her son, who lives with his father in another state, and gives her details she feels he shouldn't have known.
Even though Sam was drunk and didn't intend to carry out his threat, Maria agreed to have sex with him because his intimidating words put her in fear for her son's safety. Sam can be charged with unlawful sexual intercourse under PC 266c.
How Does PC 266c Differ from PC 261 Rape?
In California, the crime of rape defined under Penal Code 261 PC is effectively sexual intercourse without consent—meaning either the victim never consents, is unable to consent, or is coerced into consent through force, fraud, overt threats of harm, etc.
PC 266c involves a subtler form of manipulation on the perpetrator's part—that of “fraudulent representation or pretense” that evokes fear rather than force or a direct threat.
For this reason, sometimes prosecutors opt to charge a defendant with PC 266c versus rape in cases where proving the victim's consent was forced is more challenging.
What Are the Related Crimes?
Several California laws are related to Penal Code 266c unlawful sexual intercourse, including the following:
- Penal Code 266 PC enticing a child to prostitution which makes it a crime to entice a minor into a brothel for prostitution;
- Penal Code 288 PC lewd acts with a minor law makes it a felony to engage in lewd and lascivious acts with a child under 14 years old;
- Penal Code 288.2 PC sending harmful matter to seduce a minor law makes it a crime to distribute harmful material of a sexual nature to minors;
- Penal Code 288.3 PC contacting a minor to commit a felony law prohibits any attempts to convince a minor to commit a felony;
- Penal Code 288.4 PC arranging a meeting with a minor for lewd purposes law prohibits coordinating a meeting with a minor for lewd purposes;
- Penal Code 266h and 266i PC pimping and pandering law prohibit anyone from collecting any portion of someone's work as a prostitute or persuading them to become a prostitute;
- Penal Code 236.1 PC human trafficking law prohibits depriving somebody of their liberty intending to violate pimping and pandering laws and child pornography laws.
What Are the Penalties for PC 266c?
Violating PC 266c is a “wobbler” offense in California, meaning it can be charged as either a misdemeanor or felony, depending on the circumstances of the case and your prior criminal history. The penalties are as follows:
- If convicted of a misdemeanor, you could face up to one year in county jail;
- If convicted of a felony offense, you could face two, three, or four years in state prison.
Since PC 266c is a sex crime, if you're convicted, you will also have to register as a sex offender defined under Penal Code 290 PC, and your name and address will appear on the state's Sex Offender Registry. There is a three-tier sex offender registration system in California.
What Are the Defenses for PC 266c?
Because a false or fraudulent representation must create the victim's fear in such cases, common strategies by a California criminal defense lawyer to PC 266c can include anything that helps prove no such representation was made, which are discussed below.
Perhaps we can argue there was a lack of intent. Your words and actions were not intended to create fear in the victim or to rob them of willful consent.
Perhaps we can argue that the representation was not false or fraudulent. You made truthful statements, and the victim's fear was unfounded or without basis.
Perhaps we can argue that the other person consented without pretense. The alleged victim willingly agreed to the act(s) and was not coerced through fear or false pretenses. In other words, you're being falsely accused.
Perhaps we can negotiate with the prosecutor for lesser charges or a case dismissal. Maybe prefiling negotiation is an option with law enforcement and the prosecutor to convince them not to file formal criminal charges in the first place (DA reject).
You can contact our law firm for a case evaluation by phone or using the contact form. Eisner Gorin LLP is based in Los Angeles, CA.
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