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Rape Laws in California – Penal Code 261 PC

California Penal Code 261 PC describes the serious felony sex crime of rape as using force, fear, threats, or fraud to have non-consensual sexual intercourse with another person that is not their spouse.

If convicted PC 261 felony rape, it's punishable by up to eight years in a California state prison and there is also a mandatory requirement for sex offender registration for life.

Rape Laws in California – Penal Code 261 PC

The crime of rape doesn't always occur by someone using physical force. For instance, rape can also be committed in the following ways:

  • victim was not able to give consent because they were too intoxicated;
  • victim was unconscious when the rape occurred;
  • victim had mental illness making them incapable of giving consent.

In other words, a prosecutor can file Penal Code 261 rape charges when you have sexual intercourse with someone and other specific factors are met.

Under California law, unlawful sexual intercourse could occur when the act was:

  • against another person's will, or
  • without their consent.

As you can see, PC 261 rape charges can be filed in a situation when the unlawful act was accomplished NOT just by use of force, but also when someone used duress, fear or arm or retaliation, threats, or fraud.

Our Los Angeles criminal defense lawyers are providing a detailed overview below for California's rape laws.

Definition of Rape Under Penal Code 261 PC

In California, the felony sex crime of rape if defined under Penal Code 261 PC:

  • “Rape is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, under certain circumstances.”

The PC 261 definition list numerous situations when sexual intercourse could end up with rape charges being filed:

  • use of actual physical force or violence to overcome the victim's will;
  • through fear of bodily harm or retaliation, meaning threats to kidnap or inflict a serious bodily injury or death on the victim;
  • through duress, meaning an implied or direct threat to coerce another person into a sexual act they would not otherwise done;
  • through menace, meaning an act or threat that clearly shows an intent to cause injury on the victim;
  • through fraud, meaning by use of deceitful tactics or trickery in order to persuade another person to engage in sexual intercourse.

In most cases, rape charge are filed when some type of force or violence was used against the victim, but can also be filed by the prosecutor in cases of threats and coercion.

Lack of consent 

It should be noted that a “lack of consent” in a PC 261 rape case is not only a situation where the victim verbally tells defendant they don't consent, but also when the victim:

  • incapable of giving consent because they are highly intoxicated;
  • lack of consciousness, or
  • has a mental illness.

It's also worth noting that a person who initially gives consent to have sexual intercourse can change their mind in the middle of having sex and withdraw their consent.

The term “consent” is described as cooperating in an act or exercise of free will.

What Must Be Proven for a PC 261 Rape Conviction?

In order for a prosecutor to convict a defendant for rape under Penal Code 261 PC, they have to prove all the elements of the crime, which will vary based on the facts of the case, but the most common factors include the following:

  • defendant did in fact engage in sexual intercourse with a victim, not their spouse;
  • the victim did not consent to engage in sexual intercourse;
  • defendant used force, violence, duress, fear, or fraud, to achieve the act.

It's worth noting that full penetration is not required in order to be convicted of PC 261 rape. Further, just slight penetration is enough and it does not matter if defendant ejaculated.

Penalties for a Penal Code 261 Rape Conviction

If convicted of the felony crime of PC 261 rape in California, it's punishable by:

Penalties for a Penal Code 261 Rape Conviction
  • three, six, or eight years in a state prison;
  • felony probation.

If victim was a minor under 14 years old, it's punishable by 9, 11, or 13 years in prison.

If victim was a minor between 14 and 18 years old, it's punishable by 7, 9, or 11 years in prison.

If victim suffered a great bodily injury (GBI) in the commission of the rape, it's punishable by additional 3 to 5 years in state prison.

Additional penalties for a Penal Code 261 rape conviction is a fine up to $10,000 and a strike under the California Three-Strikes Law.

In most rape convictions, a defendant will face a mandatory requirement to register as a sex offender for life pursuant to California Penal Code 290 PC.

Also, since rape is considered a crime involving moral turpitude and undocumented immigrant could be facing deportation, or denial of entry into the United States.

Related California Crimes for PC 261 Rape

Penal Code 243.4 PC – sexual battery,

Penal Code 261.5 PC – statutory rape,

Penal Code 262 PC – spousal rape,

Penal Code 264.1 PC - gang rape,

Penal Code 286 PC - sodomy,

Penal Code 287 PC – oral copulation by force or fear,

Penal Code 667.71 PC - habitual sex offender,

Penal Code 289 PC - forcible penetration with a foreign object,

Penal Code 288a PC – oral copulation with a minor.

Defending Penal Code 261 PC Rape Charges

If you were arrested and charged with rape in violation of Penal Code 261, our criminal defense attorneys will closely review the details to develop a strategy to fight the case. Some common legal defenses include:

  • consent from the alleged victim,
  • evidence not sufficient for a conviction,
  • false accusation.

Typically, the most critical element in prosecuting rape cases are issues related to consent.

Consent given by alleged victim 

Depending on the details of the rape cases, we might be able to make a reasonable argument that the sexual intercourse was in fact consensual, which is a complete defense.

We might be able to prove consent by cross-examination of the alleged victim.

Insufficient evidence 

In some PC 261 rape prosecutions, we might be able to argue that there is insufficient evidence that sexual intercourse even occurred. Maybe the sexual activity never reached the act of sexual intercourse.

False accusation 

There are defendant's charged with rape who were falsely accused and wrongfully arrested. Perhaps the alleged victim made false allegations due to jealously, revenge, or anger.

Criminal Defense Lawyer for California Rape Charges

A conviction for rape in California carries harsh legal consequences.

You should consult with our firm as early as possible and never make any statements to law enforcement detectives. We may be able to get the charges reduced or dismissed.

Also, we might be able to persuade the prosecutor from filing formal charges through a process known as prefiling intervention.

Cron, Israels & Stark is a top-ranked criminal defense law firm with two office locations in Los Angeles County. Contact our firm for a free case evaluation at (424) 372-3112.

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