California Rape Law
Penal Code 261

California Penal Code 261 pc broadly defines "rape" as nonconsensual intercourse accomplished by means of threats, force, or fraud.¹ Rape is a crime in-and-of itself. There are, however, a variety of rape-related crimes that fall under the umbrella California rape law. These include:

• Penal Code 262 pc "Spousal Rape",



• Date Rape,



• Penal Code 261.5 "Statutory Rape",



• Penal Code 266c "Oral Copulation by Force".

The punishment, penalties, and stigma that flow from a California rape conviction can be severe. However, rape cases involve a number of evidentiary issues...both emotional and physical...that frequently cause innocent people to be falsely accused of and wrongfully arrested for this very serious crime.

Therefore, it is advisable to consult with a California sex crimes defense attorney immediately if someone has made an accusation against you. Often times a skilled attorney can investigate and disprove the allegations before the prosecuting agency ever files formal charges.

In order to help you better understand California rape law, our Los Angeles sex crimes defense lawyers will address the following:

Overview of California Rape Law

How Does the Prosecutor Prove that I am Guilty of Rape?

Penalties, Punishment, and Sentencing for Penal Code 261 PC

How Do I Fight a California Rape Charge?

Rape and Related Offenses

If after reading this article, you have additional questions, we invite you to contact us.

You may also find helpful information in our related articles on California Sex Crimes, Penal Code 290 PC Registration as a Sex Offender, Penal Code 243.4 PC Sexual Battery, Penal Code 266c PC Oral Copulation by Force, California Penal Code 261.5 PC Statutory Rape, and Penal Code 288 Lewd or Lascivious Acts with a Child.

Overview of California Rape Law

A Penal Code 261 pc "rape" occurs...under California rape law...when an individual engages in sexual intercourse with another person when the sexual act is accomplished (1) against that person's will, or (2) without that person’s consent...and by means of²

• force,



• violence,



• duress (a direct or implied threat sufficient to (1) coerce a reasonable person to perform an act which he/she would not otherwise have performed, or (2) agree to an act to which he/she otherwise would not have submitted. Convincing an alleged victim that he/she will be arrested, incarcerated, or deported, for example),



• menace (a threat, declaration, or act that shows an intention to inflict an injury upon another),



• fear of bodily harm to oneself or to another (the alleged victim’s fear must be actual and reasonable under the circumstances, or if unreasonable, the accused must know of the victim's fear and take advantage of it),



• fear of retaliation (a threat to kidnap, falsely imprison, or inflict serious pain, injury, or death upon the alleged victim or another person),



• fraud (either because the accused (1) fraudulently convinces the alleged victim that they are married, or (2) fraudulently convinces the alleged victim that the sexual act serves a "professional" purpose even though it does no such thing). This might be the case if, for example, you are a therapist and convince your patient that having sex with you might help resolve his/her sexual dysfunction issues,

OR

• the alleged victim is

1. too intoxicated to consent to the activity,



2. unable to give consent due to a mental disorder or physical disability which the accused knows or reasonably should know about, or



3. unconscious about the nature of the act (either because he/she is asleep, unconscious, or fraudulently induced into having sexual intercourse and the accused knows or reasonably should know that this is the case).

If you have sex with another person under any of these circumstances, prosecutors could charge you with rape under California Penal Code 261.

How Does the Prosecutor Prove that I am Guilty of Rape?

In order to prove that you raped another person, the prosecutor must prove four facts (otherwise known as "elements" of the crime). These include³:

1. that you engaged in sexual intercourse with another person (any penetration will suffice, regardless of how slight⁴),



2. that you were not married to the other at the time (this is a separate crime known as "spousal rape"),



3. that the intercourse was "against the will" of the other person, and



4. that you accomplished the act by one of the means listed above.

Since it’s the third element that raises the most issues, that’s the one on which I’d like to focus.

"Against the will" and the concept of "consent"

Simply put, "against another’s will" means without that person’s consent.⁵ But what is meant by "consent"?

Consent means positive cooperation in an act or attitude as an exercise of free will. A person who "consents" to sexual intercourse does so freely and voluntarily with knowledge of the true nature of the sexual act.⁶ There are three important things to consider in understanding consent⁷:

1. the fact that you and the alleged victim are or were dating does not in-and-of itself constitute consent without additional evidence of consent⁸,



2. the fact that the alleged victim asked, suggested, or otherwise communicated that you wear a condom or use another form of birth control does not in-and-of itself constitute consent without additional evidence of consent ⁹, and finally



3. the fact that the alleged victim initially consented to and participated in sexual intercourse does not bar him/her from withdrawing that consent. However, the alleged victim must communicate the withdrawal of consent in such a manner that you knew or reasonably should have known that the consent was withdrawn¹⁰.

Resistance is not an element of rape

The prosecutor doesn’t need to prove that the alleged victim tried to resist the act. While the victim’s resistance used to be an element that required proof, the California legislature did away with that requirement because people react differently to individual trauma.¹¹

If, for example, a woman were to "freeze" upon a sexual attack, the old California rape law would have held that she wasn’t raped...even though her reaction didn’t necessarily amount to consent. This is why resistance is no longer required as an element of the crime.

That said, if the alleged victim doesn’t resist, the jury could consider that fact as relevant to whether the defendant believed that he was engaging in consensual sexual intercourse.¹²

California rape laws apply to both men and women

A final point to note is that...although we typically think that only men can rape women...this is not the case. California rape laws apply to both men and women. If a woman were to threaten or force a man into having intercourse, prosecutors could charge her with Penal Code 261 rape.

Similarly, if a woman were to force a man into raping another woman...against both the man and alleged victim’s will...prosecutors could charge her as being an "aider and abettor".¹³ An "aider and abettor" is considered a "principal" in the crime and, as such, is punished as if he/she personally committed the crime.

Penalties, Punishment, and Sentencing for California Penal Code 261 Rape

Rape is a felony. If convicted of this crime, you face any or all of the following:

• formal probation (typically only imposed if the rape didn’t involve force or violence)¹⁴,



• three, six, or eight years in the California State Prison¹⁵,



• a possible additional three to five years in the state prison if the alleged victim sustains a great bodily injury (defined as a significant or substantial physical injury)¹⁶,



• a maximum fine of $10,000,¹⁷



• Penal Code 290 registration as a sex offender¹⁸, and



• a possible "strike" on your record pursuant to California’s Three Strike’s Law.¹⁹

The good news is that there are a variety of rape defenses...defenses that a good California sex crimes defense attorney knows how to present and argue to a judge and jury.

How Do I Fight a California Rape Charge?

To accuse someone of rape, the accuser needs little or even no evidence. This is why innocent people are unfortunately falsely accused of (and wrongfully arrested for) rape. The following is an example of some of the defenses that are most commonly used to defend against California rape charges:

• False accusations

Rape...like all other California sex crimes...is a charge that is often initiated out of jealousy, revenge, anger, or another emotionally-driven motives.

As Newport Beach criminal defense lawyer John Murray explains²⁰, "False accusations run rampant in California sex crime cases. This is nowhere more evidenced than by looking at the numerous innocent individuals whose false charges have been dismissed thanks to DNA evidence. Many of these individuals have been freed from prison after being wrongly convicted of rape based on false accusations and shoddy police work. It’s my job to make sure that my client’s unjust charges are dismissed from the start."

• Consent

If the alleged victim consented to engaging in sexual intercourse, there is no rape. Even if the alleged victim initially consented...but later changed her mind...if she didn’t effectively communicate her withdrawal of consent, you can’t be convicted of this charge.

• Insufficient evidence

If the alleged victim doesn’t seek medical attention, there may be no physical evidence to corroborate the rape allegation. Similarly, if no one hears or witnesses the act, the rape case may simply be based on "he said/she said" allegations.

• Mistaken identity

Unless a victim knows the person whom she claims raped her, it is possible for her to be mistaken in identifying her assailant. Circumstances such as

• poor lighting,



• face masks,



• prejudicial in-person or photograph police line-ups...

are just some of the factors that can contribute to an innocent person being mistakenly identified as a rapist.

California Rape and its Related Offenses

There are several crimes related to California Penal Code 261 rape. Each relates to sexual acts that are performed either (1) against the will of the alleged victim, or (2) without the alleged victim’s consent.

• Penal Code 261.5 pc statutory rape

Statutory rape takes place when an adult has sexual intercourse with an individual under 18 (commonly referred to as a minor).²¹ Minors are legally unable to give consent, which is why an adult who has sex with a minor will be prosecuted for this offense.

• Penal Code 288a pc oral copulation by force

Like California rape, oral copulation by force takes place when an individual exercises force, threats, menace, duress, or fraud to engage in oral copulation with another.²²

• Penal Code 243.4 pc sexual battery

A sexual battery takes place when an individual touches the intimate part of another for the purpose of (1) sexual gratification, (2) arousal, or (3) abuse, without that person’s consent or against that person’s will.²³

• Penal Code 288 pc lewd or lascivious acts with a child

"Lewd or lascivious acts on a child" takes place when a person touches the child somewhere on his/her body for the purposes of sexual gratification.

If you would like more information about California rape law, or you would like to discuss your case confidentially with one of our California sex crime defense attorneys, please don’t hesitate to contact us.

We have local criminal law offices in Los Angeles, Orange County, Riverside, San Bernardino, San Diego, Ventura, San Jose, the San Francisco Bay area, and several nearby cities to conveniently serve you.

Legal References:

¹California Penal Code 261 -- Rape defined. ("(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 [rape will be charged]. (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 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 the victim's spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief. (6) [Penal Code 261 PC California rape will be charged] 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 [for California rape], "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."

²See California Penal Code 261 PC rape, subdivision 2, above.

³California Jury Instructions – Criminal. CALJIC 10.00. Rape—Spouse and Non-Spouse—Force or Threats. ("In order to prove this crime, each of the following elements must be proved: [1] A male and female engaged in an act of sexual intercourse; [2] The two persons were [not] married to each other at the time of the act of sexual intercourse; [3] The act of intercourse was against the will of the alleged victim; [4] The act was accomplished by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury [to the alleged victim] [or] [to another person].")

⁴California Penal Code 263 -- Rape; essentials; sufficiency of penetration. ("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.")

⁵See CALJIC on California rape, endnote 3, above. ("‘Against that person's will’ means without the consent of the alleged victim.")

⁶California Jury Instructions – Criminal. CALJIC 1.23.1. "Consent"—Defined in Rape, Sodomy, Unlawful Penetration and Oral Copulation. ("In [prosecutions under] Penal Code section, the word "consent" means positive cooperation in an act or attitude as an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved.")

⁷See same. ("[The fact, if established, that the defendant and __________ engaged in a current or previous dating relationship does not by itself constitute consent.] [Evidence that the alleged victim suggested, requested, or otherwise communicated to the perpetrator that a [condom] [or] [other birth control device] be used does not by itself constitute consent.] [A person who initially consents and participates in the act has the right to withdraw that consent. To be effective as a withdrawal of consent, the person must inform the other person by words or conduct that consent no longer exists, and the other person must stop [otherwise a California Penal Code 261 rape may be charged]. The words or conduct must be sufficient to cause a reasonable person to be aware that consent has been withdrawn. If the other person knows or reasonably should know that consent has been withdrawn, forcibly continuing the act despite the objection is against the will and without the consent of the person.]")

⁸California Penal Code 261.6 -- Consent; current or previous dating or marital relationship...("A current or previous dating or marital relationship shall not be sufficient to constitute consent where consent is at issue in a prosecution under Section 261, 262, 286, 288a, or 289.")

⁹California Penal Code 261.7 -- Evidence that victim requested that defendant use condom or other birth control device; consent. ("In prosecutions under [California Penal Code] Section 261 [rape], 262 [spousal rape], 286 [sodomy], 288a [oral copulation by force], or 289 [forced penetration], in which consent is at issue, evidence that the victim suggested, requested, or otherwise communicated to the defendant that the defendant use a condom or other birth control device, without additional evidence of consent, is not sufficient to constitute consent.")

¹⁰See endnote 7, above.

¹¹People v. Barnes (1986) 42 Cal.3d 284. ("The court held that the 1980 amendments to the statute defining forcible rape, California Penal Code section 261 PC, deleting references to the victim's resistance, acted to relieve the state of the need to establish resistance as a prerequisite to a rape conviction and released rape complainants from the potentially dangerous burden of resisting an assailant in order to substantiate allegations of forcible rape.")

¹²See same at 303. ("FN19 The statutory change does not mean that when resistance does exist, it is irrelevant to nonconsent [with respect to a California rape charge]. Absence of resistance may also continue to be probative of whether the accused honestly and reasonably believed he was engaging in consensual sex. (See People v. Mayberry (1975) 15 Cal.3d 143, 155 [125 Cal.Rptr. 745, 542 P.2d 1337].)")

¹³People v. Hernandez (1971), 18 Cal.App.3d 651, 657. ("Women have been convicted as "aiders and abettors" and therefore principals (see Pen. Code, § 31) to the crime of rape. (See People v. Smith, 204 Cal.App.2d 797 [23 Cal.Rptr. 5]; People v. Young, 132 Cal.App. 770 [23 P.2d 524]; People v. Bartol, 24 Cal.App. 659 [142 P. 510].) It would be unreasonable to hold a woman immune from prosecution for rape committed by a man under her "threats or menaces sufficient to show that [he] had reasonable cause to and did believe [that his life] would be endangered if [he] refused." (See California Penal Code, § 26, subd. Eight.) If such were the law it would create a crime without a punishable perpetrator.

¹⁴California Penal Code 1203 -- Probation. ("(e) Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any of the following persons: (1)...any person who has been convicted of...rape with force or violence.")

¹⁵California Penal Code 264 -- Rape; punishment. ("(a) Rape, as defined in Section 261 or 262, is punishable by imprisonment in the state prison for three, six, or eight years.")

¹⁶California Penal Code 12022.7 -- Terms of imprisonment for persons inflicting great bodily injury while committing or attempting felony. ("(a) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years. (b) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony which causes the victim to become comatose due to brain injury or to suffer paralysis of a permanent nature, shall be punished by an additional and consecutive term of imprisonment in the state prison for five years. As used in this subdivision, "paralysis" means a major or complete loss of motor function resulting from injury to the nervous system or to a muscular mechanism. (c) Any person who personally inflicts great bodily injury on a person who is 70 years of age or older, other than an accomplice, in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for five years...(e) Any person who personally inflicts great bodily injury under circumstances involving domestic violence in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years. As used in this subdivision, "domestic violence" has the meaning provided in subdivision (b) of Section 13700. (f) As used in this section, "great bodily injury" means a significant or substantial physical injury.") These sections apply to all California felonies, including California Penal Code 261 rape.

¹⁷California Penal Code 672 -- Offenses for which no fine prescribed; fine authorized in addition to imprisonment. ("Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.") This is why an individual convicted of California Penal Code 261 rape faces a maximum $10,000 fine.

¹⁸California Penal Code 290 -- Sex Offender Registration Act. ("(c) The following persons shall be required to register: Any person who, since July 1, 1944, has been or is hereafter convicted in any court in this state or in any federal or military court of a violation of Section 187 committed in the perpetration, or an attempt to perpetrate, rape or any act punishable under Section 286, 288, 288a, or 289, Section 207 or 209 committed with intent to violate Section 261, 286, 288, 288a, or 289, Section 220, except assault to commit mayhem, Section 243.4, paragraph (1), (2), (3), (4), or (6) of subdivision (a) of Section 261...")

¹⁹California Penal Code 1192.7 -- Legislative intent regarding prosecution of violent sex crimes...("(c) As used in this section, "serious felony" means any of the following: (3) [California Penal Code 261] rape.") See also California Penal Code 667 -- Habitual criminals; enhancement of sentence; amendment of section (otherwise known as California's Three Strikes Law). ("(b) It is the intent of the Legislature in enacting subdivisions (b) to (i), inclusive, to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.")

²⁰Newport Beach criminal defense lawyer John Murray practices throughout Orange County, including Fullerton, Anaheim, Santa Ana, Irvine and Westminster.

²¹California Penal Code 261.5 -- Unlawful sexual intercourse with person under 18; age of perpetrator; civil penalties [also known as California statutory rape]. ("(a) Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For the purposes of this section, a "minor" is a person under the age of 18 years and an "adult" is a person who is at least 18 years of age.")

²²California Penal Code 288a -- Oral copulation. Oral copulation prohibits engaging in oral copulation under the same type of circumstances as rape under California Penal Code 261.

²³California Penal Code 243.4 -- Sexual battery. ("(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.")

Join us to discuss your criminal case at any of our
local offices: You can also contact us 24/7 at
888.327.4652 for a free consultation