You can violate California Penal Code 261 PC rape law if you have non-consensual sexual intercourse with someone using physical force or threats. To consent, someone must act freely and voluntarily and know the nature of the act.
Sexual intercourse generally means any sexual penetration, no matter how slight, of the vagina or genitalia by the penis. Ejaculation is not required for an act to be considered sexual intercourse.
By contrast, you can commit the crime of Penal Code 243.4 PC sexual assault, also called "sexual battery," if you make sexual contact with someone, such as touching their intimate parts without consent. No sexual penetration is required.
Simply put, sexual assault generally means touching another person's intimate parts without consent and for the purpose of sexual gratification, arousal, or abuse.
In California, the terms "rape" and "sexual assault" are often used interchangeably, but legally, they have different definitions and elements of the crime.
Certain people are incapable of legally consenting to sex, regardless of what they say or do, such as people who are severely intoxicated people, people with serious mental disorders, and those who are unconscious or asleep.
Penal Code 261.5 PC statutory rape is a separate sex crime from rape. You violate this law if you have sexual intercourse or sexual activity with a minor under 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.
Notably, 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.
If you are accused of either, understanding the legal difference between rape and sexual assault might help you avoid the most severe penalties. DNA submission is mandatory for people arrested for allegedly committing certain felonies.
What are the Legal Definitions?
PC 243.4 sexual battery law 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."
Sexual assault law covers a broad spectrum of nonconsensual sexual activities beyond intercourse, including unwanted touching, fondling, or any sexual contact achieved through force, coercion, or when the victim is unable to consent.
"Intimate parts" include the genital area, anus, groin, inner thighs, or female breasts. Sexual assault does not require penetration to meet its legal definition.
California Penal Code 261 PC rape is defined as nonconsensual sexual intercourse achieved through force, threats, fraud, or when the victim is incapacitated and unable to give consent, such as when they are:
- Intoxicated,
- Unconscious,
- Mentally incapable of understanding the nature of the act.
"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.
In contrast, you commit the wobbler (misdemeanor or felony) crime of Penal Code 243.4 PC sexual assault if you make sexual contact with somebody, such as unwanted touching of their intimate parts without their consent. Sexual assault is often called sexual battery or sexual abuse.
What are the Differences Between Rape and Sexual Assault?
The main difference between rape and sexual assault in California is the nature of the act itself. Consider the following:
- Rape specifically involves penetration, no matter how slight. The requirement of penetration for an act to qualify as rape is a significant legal distinction.
- Sexual assault involves nonconsensual contact with an intimate part of someone's body, not necessarily involving penetration. Sexual assault does not require any form of penetration but focuses instead on the violation of personal boundaries through touch.
- Both rape and sexual assault rely on the issue of consent, but the context in which consent is violated differs. In 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.
Which Crimes Can Be Charged?
Some of the California crimes that could fall under the category of sexual assault include the following:
- Penal Code 243.4 PC - Sexual Battery. This law is the most common form of sexual assault that involves the nonconsensual touching of someone's intimate parts for sexual arousal, gratification, or abuse.
- Penal Code 287 PC - Oral Copulation through Force or Fear. This law involves the act of engaging in oral sexual contact with someone without consent or with someone unable to legally consent due to age, mental disorder, or physical disability.
- Penal Code 286 PC - Sodomy. This law involves the act of engaging in anal or oral copulation with someone without their consent or with someone unable to legally consent due to age, mental disorder, or physical disability.
- Penal Code 289 PC - Forcible Acts of Sexual Penetration. This law involves the act of penetrating someone's body with a foreign object without consent, achieved through force, coercion, or when they are incapacitated.
What are the Legal Penalties?
PC 261 rape is a more severe crime and is classified as a felony in California, with potential sentences including:
- Three, six, or eight years Imprisonment in state prison.
- Penalties can 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 type of charge depending on the case details, such as the following:
- Sexual battery with no aggravating factors is typically a misdemeanor with penalties of up to six months in county jail and a fine of up to $1,000.
- If there are aggravating factors, such as the restraint or serious bodily injury of the victim, it can be a felony that carries up to four years in state prison.
- Forcible oral copulation is a felony with a sentence of up to eight years.
- Both rape and sexual assault typically result in required registration as a sex offender.
- Many felony versions of sexual assault and all cases of rape will count as a "strike" under California's Three Strikes Law.
What are the Defense Strategies?
When facing criminal charges of rape or sexual assault, several strategies may be employed by a California criminal defense lawyer to challenge the case filed by the district attorney, as discussed below. Perhaps we can argue there was consent. This would include presenting evidence that the accuser willingly participated in the sexual activity without coercion, force, or incapacitation.
We can argue mistaken Identity. Sometimes, we may say the accused was not the perpetrator, asserting mistaken identity. This strategy relies on creating reasonable doubt about presence at the scene or involvement in the crime.
Perhaps we can argue false accusations. Sometimes, an alleged victim falsely accuses someone of rape or sexual assault. Maybe we can provide evidence that directly refutes this claim. Contact our law firm for more information. Cron, Israels & Stark is based in Los Angeles, CA.
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