What is Considered “Rape” Under California Law?

Penal Code Section 261

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What Is Rape?

Unwanted sex acts are generally regarded as rape and prosecuted under California Penal Code 261. However, these criminal offenses are also commonly referred to as “sexual abuse” or “sexual assault.” A wide range of activities may be included under these definitions. Statutory rape, for instance, is sexual activity with a person under the legal age of consent. Date rape is a non-legal term for forcible sexual activity between people who know one another during a social engagement.

Overview of Penal Code Section 261?

California Penal Code Section 261 — California’s law on rape defines rape as nonconsensual sexual intercourse accomplished by force, threat, or fraud with a person who is not the spouse of the perpetrator.

Example: A man and woman were on a date at a bar.  While the woman went to the bathroom, the man slipped a “date rape drug” into her drink known as Rohypnol or “roofies.”  She consumed the drug and shortly after, the man took her home, where he proceeded to have sexual intercourse with her while she was passed out.  This is an instance where even though physical force was not used to accomplish the rape, the man will still be charged with the offense because the intercourse was non-consensual (because the woman was passed out and could not consent) and was accomplish by trick or fraud (because the man tricked the woman into drinking a drink that contained a hypnotic drug in order to accomplish date rape).

How Does the Prosecutor Prove Rape?

To prove that you are guilty of “rape,” the prosecutor has to prove the following facts or elements1:

  • You engaged sexual intercourse with a woman2;
  • The woman was not your wife at the time of the intercourse (if you were, it would be a separate crime known as “spousal rape”);
  • The woman “did not consent” to the intercourse:
  • To consent, a woman must act freely and voluntarily and know the nature of the act. 3  A woman who initially consents to an act of intercourse may change her mind during the act. If she does so, under the law, the act of intercourse is then committed without her consent if:
  • She communicated through words or acts to the defendant that she no longer consented to the act of intercourse;
  • A reasonable person would have understood that her words or acts expressed her lack if consent;  AND
  • The defendant forcibly continued the act of intercourse despite her objection.

Example: A woman had a fight with her boyfriend and decides to have sex with a complete stranger she meets at the bar to get even with her boyfriend.  During the intercourse with the stranger, the woman starts to realize that she does not want her relationship to end, so she tries to push the stranger away, but he refuses to budge and continues to have sex with her.  The stranger can be charged with rape, because the woman clearly withdrew her consent to have sex by trying to push the man away during sex.

  • You accomplished intercourse by force, violence, duress, menace, retribution, fear of immediate and unlawful bodily injury to the woman or to someone else, or fraud. 4

Example:  A man tells his female employee that if she does not have sex with him, she will be fired.  This is an example of sex under duress and is chargeable as rape.

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Legal Defenses To Rape Charges

The most common defenses that a skilled criminal defense attorney can use to defend you from a rape charge are as follows:

Consent:

If you can show that the alleged victim consented to sexual intercourse, then the act does not qualify as rape.  Even if the accuser says she consented at first but then wanted to stop, unless she effectively communicated her desire to stop, you cannot be expected to understand that she wanted to stop the intercourse.

Reasonable Belief in Consent:

Moreover, even if the alleged victim did not actually consent, but you had a reasonable belief that she did, it is not rape.  You are not guilty of rape if you actually and reasonably believed that the woman consented to the intercourse and actually and reasonably believed that she consented throughout the act of intercourse.

Example: A man and a woman came home after a fun date, proceeded to make out and then have sex.  After the fact, the woman told the man that she did not want to have sex with him but that she was too scared to say no to him.  Because the woman acted like she wanted to have sex and made no indication throughout the act of intercourse that she wanted to stop, the man had no reason to believe that she did not consent.  Therefore, it was reasonable for him to believe that she consented to the intercourse, and if she decides to file charges against him, the man can use the defense of reasonable belief in consent to defend against the charge.

False accusations:

Sometimes, rape is a false accusation that the alleged victim uses out of revenge, anger, or some other self-serving reason.  That is why it is very important to have a competent criminal defense attorney on your side who can conduct a preliminary investigation to determine whether something about the facts or the evidence does not add up.

Examples: The accuser may be a jealous girlfriend who has previously filed the same charges against other boyfriends.  Or, it may be an ex-spouse who is angry that she cannot have her ex-husband back, so she tries to make his life and his current marriage fall apart by launching false accusations against him.

Penalties, Punishment and Sentencing Guidelines

If you are convicted of “rape” pursuant to California Penal Code Section 261, you face the following penalties:

  • A felony conviction
  • Formal probation with a maximum sentence of 1 year in county jail OR
  • Up to 3, 5, or 8 years in the state prison

The sentence may be enhanced if the following facts are present:

  • Victim sustained a great bodily injury:
    • 3-5 additional years in the state prison
    • Up to $10,000 in fines and
    • A possible “strike” on your criminal record pursuant to the California’s Three Strikes Law
  • Victim is a minor:
    • If the victim is a minor under the age of 18 years old, the state prison term goes up to 7, 9, or 11 years.
    • If the victim is a minor under the age of 14 years old, the state prison term goes up to 9, 11, or 13 years in prison.
  • In addition to the penalties above, most rape convictions lead to the requirement that the offender register as “sex offender” pursuant to California Penal Code section 290.  Failure to register as a sex offender is a felony.

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Related Offenses & Enhancements

LESSER INCLUDED OFFENSES

Assault: Under Penal Code 240, a California “assault” is an act that is likely to result in the unlawful application of force onto another.  Assault is a lesser included offense in “rape,” because a defendant does not need to make physical contact with the victim/accuser to be convicted of assault.  A simple attempt is enough, given that defendant has the ability to carry out the attempt.  However, if the defendant does make physical contact, he/she can be charged with “battery.”

Assault With Intent to Commit Rape: Similar to assault, “assault with intent to commit rape” pursuant to Pen. Code, section 220 is a lesser included offense in “rape,” because a defendant does not need to make physical contact with the victim/accuser to be convicted of assault with intent to commit rape.5  This is a specific intent crime, meaning that you committed assault with the specific intent to commit the act of rape.

Attempted Rape: Attempted rape pursuant to Penal Code sections 663 and 261 is a lesser included offense in “rape,” because it is an attempt to commit rape that does not rise to the actual offense of rape.  This is a specific intent crime, meaning that you had to have intent to commit the act of rape.

Attempted Spousal Rape: Attempted spousal rape pursuant to Penal Code sections 663 and 262 is a lesser included offense in “rape,” because it is an attempt to commit rape against your spouse that does not rise to the actual offense of rape.  This is a specific intent crime, meaning that you had to have intent to commit the act of rape.

Battery: Pursuant to the Penal Code Section 242, a California “battery” is the unlawful application of force against another person which results in a harmful or offensive contact.  It is a lesser included offense in “rape,” because intercourse with a woman without her consent necessarily includes the act of battery.6

The following offenses are all sex crime related offenses:

How We Can Help

A Los Angeles rape attorney7 at the Aizman Law Firm may be able to answer any questions you may have about the information provided in this article.  We have the knowledge, skill and experience necessary to fight your case.  We have assembled the best team of former prosecutors, experts, investigators and researchers to protect your constitutional rights.

Diana Weiss Aizman

Diana Aizman
Founding Attorney
(818) 351-9555
Blithe Leece
Attorney
818-351-9555

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Footnotes

  1. California Penal Code Section 261: California’s Penal Code Section 261: (a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: (1) Where a person is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act. Notwithstanding the existence of a conservatorship pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or  developmental or physical disability rendered the alleged victim incapable of giving consent.    (2) Where it is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.  (3) Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused.  (4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, “unconscious of the nature of the act” means incapable of resisting because the victim meets any one of the following conditions: (A) Was unconscious or asleep.    (B) Was not aware, knowing, perceiving, or cognizant that the act occurred.  (C) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraud in fact.  (D) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose.  (5) Where a person submits under the belief that the person committing the act is someone known to the victim other than the accused, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief.  (6) Where the act is accomplished against the victim’s will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph, “threatening to retaliate” means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death. (7) Where the act is accomplished against the victim’s will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official.  As used in this paragraph, “public official” means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another.  The perpetrator does not actually have to be a public official.  (b) As used in this section, “duress” means a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted.  The total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in appraising the existence of duress.  (c) As used in this section, “menace” means any threat, declaration, or act which shows an intention to inflict an injury upon another. []
  2. Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis.  Ejaculation is not required.  Penetration Defined.  California Penal Code, § 263: The essential guilt of rape consists in the outrage to the person and feelings of the victim of the rape. Any sexual penetration, however slight, is sufficient to complete the crime.; People v. Karsai (1982) 131 Cal.App.3d 224, 233–234 [182 Cal.Rptr. 406], disapproved on other grounds by People v. Jones (1988) 46 Cal.3d 585, 600 [250 Cal.Rptr. 635, 758 P.2d 1165]. []
  3. Consent cannot be given by a woman if she was too intoxicated; lacks mental capacity to consent; or is unconscious. []
  4. Intercourse is accomplished by “force” if a person uses enough physical force to overcome the woman’s will.  “Duress” means a direct or implied threat of force, violence, danger, or retribution that would cause a reasonable person to do [or submit to] something that she would not do [or submit to] otherwise.  When deciding whether the act was accomplished by duress, consider all the circumstances, including the woman’s age and her relationship to the defendant.  “Retribution” is a form of payback or revenge. “Menace” means a threat, statement, or act showing an intent to injure someone. Intercourse is accomplished by “fear” if the woman is actually and reasonably afraid, or she is actually but unreasonably afraid and the defendant knows of her fear and takes advantage of it.  A woman must be alive at the time of the sexual intercourse for the crime of rape to occur. []
  5. In re Jose M. (1994) 21 Cal.App.4th 1470, 1477 [27 Cal.Rptr.2d 55]; People v. Moran (1973) 33 Cal.App.3d 724, 730 [109 Cal.Rptr. 287] [where forcible rape is charged]. []
  6. Penal Code, Section 242; People v. Guiterrez (1991) 232 Cal.App.3d 1624, 1636 [284 Cal.Rptr. 230], disapproved on other grounds in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3 [103 Cal.Rptr.2d 23, 15 P.3d 243]; but see People v. Marshall (1997) 15 Cal.4th 1, 38–39 [61 Cal.Rptr.2d 84, 931 P.2d 262] [battery not a lesser included of attempted rape]. []
  7. We fight for cases in Los Angeles, Beverly Hills, Woodland Hills, Agourra Hills, Calabasas, Burbank, Torrance, San Bernardino, Sherman Oaks, Long Beach, Studio City, Santa Monica, Brentwood, Westwood, Encino, Van Nuys, Ventura, Riverside, and Orange County. []