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Riverside Sex Crimes Defense Attorney

Rape Law in California

California Penal Code 261

Rape in California is defined as the non-consensual intercourse with a woman accomplished by threats or force. Most of the California rape laws can be found in the Penal Code 261 sections.

The punishment or penalties for rape in California can include up to 8 years state prison for a first offense, as well as lifetime registration as a sex offender.

While rape is certainly a terrible and very serious crime, many innocent people are accused of rape. The reasons can include mistaken identification; a misunderstanding among the parties as to the issue of consent; and false accusations by a victim because of anger, jealousy or other ulterior motives.

If you or a loved one has been investigated for, arrested, or charged with rape, contact a California criminal defense lawyer with experience defending against sex crime charges. An experienced criminal defense lawyer should be bought onboard early, even before formal charges are filed.

Below is a modified version of the California Judicial Council's jury instruction describing what the prosecution would have to prove in order for a defendant to be convicted of rape in California under Penal Code Section 261:

The Elements of the Crime of Rape

The defendant is charged with rape by force.

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant had sexual intercourse with a woman;

2. He and the woman were either not married or married to each other at the time of the intercourse;

3. The woman did not consent to the intercourse;

AND

4. The defendant accomplished the intercourse by any of the following:

• force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the woman or to someone else
• threatening to retaliate in the future against the woman or someone else when there was a reasonable possibility that the defendant would carry out the threat
• threatening to use the authority of a public office to incarcerate, arrest, or deport someone

Sexual intercourse in the rape law context means any penetration, no matter how slight, of the vagina or genitalia by the penis. Ejaculation is not required.

Consent as a Defense in Rape Cases

To consent, a woman must act freely and voluntarily and know the nature of the act.

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 (in effect is rape) under California law Penal Code Section 261 if:

1. She communicated to the defendant that she objected to the act of intercourse and attempted to stop the act;

2. She communicated her objection through words or acts that a reasonable person would have understood as showing her lack of consent;

AND

3. The defendant forcibly continued the act of intercourse despite her objection.

• Evidence that the defendant and the woman dated or were married or had been married is not sufficient by itself to amount to consent.
• Evidence that the woman requested suggested communicated that the defendant use a condom or other birth control device is not sufficient by itself to amount to consent.
• Intercourse is accomplished by force if a person uses enough physical force to overcome the woman's will.
• Duress in the rape law context 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.

Defense: Reasonable Belief in Consent

The defendant is not guilty of rape if he actually and reasonably believed that the woman consented to the intercourse. The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the woman consented. If the People have not met this burden, you must find the defendant not guilty of the rape charge.