Penal Code 261 PC, California's rape statute, broadly defines the crime of "rape" as nonconsensual sexual intercourse accomplished by means of threats, force, or fraud, or with a victim who is unconscious or incapable of consenting.1 This kind of rape is a California sex crime in and of itself.
When many people think of rape, the first thing that comes to mind is rape committed by means of physical force. But other, less obvious situations can lead to California rape charges too. These include:
- A man having sexual intercourse with a woman who is passed out drunk,
- A doctor "tricking" his female patient into having sex with him by telling her it's the only way to cure a particular illness, and
- A police officer telling a woman that he has pulled over for DUI that he will let her go if she has sex with him.
But there are also a variety of rape-related crimes that fall under the umbrella of California rape law. These include:
- Penal Code 262 PC "Spousal Rape",
- Date Rape,
- Penal Code 261.5 PC "Statutory Rape",
- Penal Code 266c PC "Oral Copulation by Force", and
- Penal Code 289 PC "Forcible Penetration with a Foreign Object."
The punishment, penalties, and stigma that flow from a California rape conviction can be severe. The punishment for rape in California includes three (3), six (6) or eight (8) years in California state prison.2 And if the alleged victim was a minor, the minimum sentence is seven (7) years...and the maximum is thirteen (13) years.3
Unfortunately, rape is one of the crimes for which many innocent people get wrongly accused. A number of legal defenses can help you beat the charges when you find yourself in this situation. These include taking the position that:
- The accuser made up false accusations (a very common scenario in California rape cases),
- You had an honest and reasonable belief that the accuser consented to intercourse,
- Whatever physical contact took place, it fell short of actual intercourse,
- The evidence is insufficient, or
- You are the victim of mistaken identity.
Regardless of the circumstances, it is advisable to consult with a California criminal defense attorney immediately if someone has made an accusation against you. Often times a skilled attorney can investigate and discredit the allegations before the prosecuting agency ever files formal charges.
We are a law firm of former police and prosecutors with more than 100 years collective experience investigating, prosecuting - and now defending - rape cases. Based on our experience, we have prepared the article below addressing
If after reading this article, you have additional questions, we invite you to contact us at Shouse Law Group.
According to Penal Code 261 PC, the legal definition of "rape" in California law is when an individual engages in sexual intercourse with another person...and certain conditions are met. First off, the sexual intercourse needs to be either against that person's will, or without that person's consent.4
This means that the act needs to have been accomplished through one of the following:
- Physical force.
- Duress. This is a direct or implied threat sufficient to coerce a reasonable person to perform...or agree to allow...an act which he/she would not otherwise have performed or allowed. Example: Trevor works for the US immigration authorities. He tells Luisa, who is an illegal immigrant, that she will be deported if she doesn't have sex with him....so she agrees to have sex with him. This is rape by means of duress.
- 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 it's 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---because the accused either (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.5
Example: Ian is a New-Age therapist who treats sexual dysfunction issues. He tells his patient Charlene that her problems with lack of sex drive will be resolved if she has sex with him...so she does. This is rape by means of fraud.
Alternatively, lack of consent can mean that the alleged victim was
1. too intoxicated to consent to the activity,
2. unable to give consent due to a mental disorder or physical disability which the accused knew or reasonably should have known about, or
3. unconscious about the nature of the act (because he/she was either asleep, unconscious, or fraudulently induced into having sexual intercourse -- and the accused knew or reasonably should have known that this was the case).6
If you have sex with another person under any of these circumstances . . . prosecutors could charge you with rape under California's rape statute (Penal Code 261 PC).
In order to prove that you raped another person under Penal Code 261 PC, the prosecutor must prove four facts (otherwise known as "elements" of the crime). These are:
- that you engaged in sexual intercourse with another person (any penetration will suffice, regardless of how slight ),
- that you were not married to the person at the time (if you were, it would be a separate crime known as "spousal rape"),
- that the other person "did not consent" to the intercourse, and
- that you accomplished the act by one of the means listed in Section 1 above.8
Let's take a closer look at some of the terms in these elements.
Any penetration, no matter how slight, counts as "sexual intercourse" for purposes of rape.9 It doesn't matter whether ejaculation occurs or not.10
So the legal definition of rape defines "intercourse" very broadly. If a California rape defendant initiates sexual intercourse with someone against that person's will, and then begins to regret that act and quickly terminates the sexual act...that will still count as rape.
The concept of "consent"
Simply put, rape is sexual intercourse that occurs without one person's consent.11 But what is meant by "consent" under California's rape law?
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.12
There are a few important things to consider in understanding consent.13
- Previous dating or marital relationship
First, the fact that you and the alleged victim are dating, used to date, or used to be married does not by itself constitute consent...without additional evidence of consent.14
The same is true of actually being married to the alleged victim...just the fact that you and she (or he) are married is not evidence of consent. But if the defendant and
alleged victim are married, sex without consent is the separate crime of
spousal rape. As discussed below, spousal rape is charged and tried under a different statute-Penal Code 262 PC.
- Request for condom or contraceptive use
Second, 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...again, without additional evidence of consent.15
But that doesn't mean that it's completely irrelevant if the alleged victim requested that they use a condom. That request may not mean there was actual consent...but if the "victim" was sending mixed signals, her (or his) request for a condom or birth control use may be useful in helping to show that the defendant reasonably believed there was consent.
As we will discuss below, the defendant's actual reasonable belief that there was consent...even if that belief was false...means that no rape occurred.16
- Withdrawn consent
Finally, even if the alleged victim initially consented to and participated in sexual intercourse, s/he CAN later withdraw that consent...which MAY turn what began as an act of consensual intercourse, into rape.17
But this will only occur if the following three things are true:
- The alleged victim communicates to the defendant that s/he objects to the intercourse that is occurring and attempts to stop the act,
- The "victim" communicates this objection in a way that would convey lack of consent to a reasonable person, AND
- The defendant forcibly continues the intercourse anyway.18
Example: Karen is upset after a fight with her boyfriend and goes to a bar by herself. At the bar, she meets Paul. Karen invites Paul back to her apartment, and the two begin to have sex.
But not long after the sexual act begins, Karen begins to feel guilty about cheating on her boyfriend. She tells Paul that she is no longer comfortable and wants to stop having sex. She also tries to push him away from her. But Paul overpowers her and continues the intercourse.
Paul may be guilty of California rape even though he initially thought he was having consensual sex with Karen. Paul may be liable for rape because Karen has withdrawn her consent.
Proving consent under California's rape shield law
California's rape shield law is an evidence rule designed to protect the privacy of rape victims. It says that you may not prove consent by introducing evidence of your accuser's past sexual conduct or sexual reputation.19
In other words, even if the person accusing you has a history of having consensual sex with large numbers of people, you cannot point to that history to try to show that she consented to having sex with you.
Defendant must have known that there was a lack of consent
Luckily, it's not enough for a prosecutor to show that the alleged victim didn't consent to sexual intercourse. They also have to prove-beyond a reasonable doubt-that the defendant did not "actually" and "reasonably" believe that the victim had consented.20 If they can't prove this, then the defendant can't be convicted of rape in California.
Example: Rick is interested in S&M (sadomasochism) and arranges a date with Tracy, a woman he met on an internet site for people interested in S&M. In emails, Tracy has told him she has fantasies of being raped and wants to meet with him to act out those fantasies.
At Rick's apartment, he and Tracy have sex during which he behaves threateningly toward her. Later, Tracy accuses him of rape. But Rick may be able to defend himself by arguing that he actually and reasonably believed that Tracy had consented.
Resistance is not an element of rape
The prosecutor doesn't need to prove that the alleged victim physically tried to resist the act. While the victim's resistance used to be an element that required proof under California's rape statute, the California legislature did away with that requirement because people react differently to individual trauma.21
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.22
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.23
Similarly, if a woman were to help a man rape another woman...against the alleged victim's will...prosecutors could charge her with "aiding and abetting".24 An "aider and abettor" in California law is considered a "principal" in the crime and, as such, is punished as if he/she personally committed the crime.25
Rape under California law is a felony. If you are convicted of this crime, the punishment for California rape will include three (3), six (6), or eight (8) years in the California State Prison.26
In some California rape cases, the judge may grant felony (formal) probation and up to one (1) year of county jail in lieu of the state prison sentence. But as of January 1, 2017, this is only possible if one of the following is true:
- The defendant is guilty of rape only because the victim was incapable of giving consent due to a disability;
- The defendant accomplished the rape by pretending to be someone else known to the victim; or
- The defendant accomplished the rape by threatening to use the authority of a public official against the victim, AND the case is an unusual one where the judge finds that granting probation will serve the interests of justice.27
In addition, a conviction for rape will entail:
- a possible additional three (3) to five (5) years in the state prison if the alleged victim sustains a great bodily injury (defined as a significant or substantial physical injury)28,
- a maximum fine of ten thousand dollars ($10,000)29 , and
- a possible "strike" on your record pursuant to California's Three Strikes Law.30
The maximum prison sentence for Penal Code 261 PC rape also goes up if the alleged victim is a minor. If she (or he) is a minor under 18, the possible state prison term goes up to seven (7), nine (9) or eleven (11) years.
And if she (or he) is a minor under the age of 14, the possible term is nine (9), eleven (11), or thirteen (13) years in prison.31
As if that weren't enough punishment, most California rape convictions lead to required Penal Code 290 sex offender registration.32 (The only exceptions are rape committed by fraud, and rape committed by threatening to use the authority of a public official to arrest or deport the victim.33 )
The penalty of required sex offender registration for rape can be as onerous as any prison term. The registration requirement is a duty that lasts for an entire lifetime. And failure to register as a sex offender under Penal Code 290 is a separate felony.34
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.
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 prosecuted for) rape all too often.
The following are examples of some of the legal defenses that are most commonly used to defend against California rape charges:
Rape...like all other California sex crimes...is a charge that is often initiated out of jealousy, revenge, anger, or another emotionally-driven motives.
It is extremely difficult to tell how many allegations of rape are simply false...but social science studies have suggested that false rape allegations are a serious criminal justice. One FBI study concluded that almost 10% of rape allegations have no basis, a figure that other studies support.35 But certain more specific studies suggest that the number could be closer to half!36
As Riverside criminal defense lawyer Michael Scafiddi explains37,
"False accusations run rampant in California sex crime cases. This is nowhere more obvious 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."
If the alleged victim consented to engaging in sexual intercourse, then no rape occurred.38 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.39
Also, even if the alleged victim didn't actually consent BUT you had good reason to believe she had consented...you can't be convicted of rape. This is a version of the legal defense of "mistake of fact." You are entitled to an acquittal if you can show that you actually and reasonably believed that consent had been obtained.40
Example: Tom and Tina go on a date. After dinner and a few drinks, they go to Tom's place and start making out. They each get undressed and Tina lays in the couch. At this point, Tina decides she doesn't want to go through with the sex and wishes she could just leave. But she doesn't communicate this to Tom, who proceeds with intercourse. Tom is probably not guilty of rape under California law, because he held an honest and reasonable belief that Tina consented to the act.
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. In this sort of situation, the legal defense of insufficient evidence may apply. Prosecutors often have difficulty proving rape charges in court when the only evidence is the uncorroborated word of the accuser.
Mistaken eyewitness identification is the number one reason for wrongful convictions in the United States...and it is especially common in California rape cases.
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 photographic police line-ups...
are just some of the factors that can contribute to an innocent person being mistakenly identified as a rapist.
There are several California sex 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.
Some of these may be charged along with the California crime of rape if the alleged rape victim claims that sexual acts besides intercourse occurred.
Under Penal Code 261.5, California statutory rape laws define statutory rape as a person having sexual intercourse with an individual under 18 years of age (commonly referred to as a minor).41 Minors are legally unable to give consent, which is why an adult who has sex with a minor will be prosecuted for this offense...even if the intercourse was in fact fully consensual!
Statutory rape is a wobbler in California law ...which means it may be tried as either a misdemeanor or a felony. The nature of the charges and the penalty depend on how large the age difference was between the defendant and the alleged "victim."42
Like California rape, oral copulation by force takes place when an individual exercises force, threats, menace, duress, or fraud to engage in a sexual act with another....but in this case the act would be oral sex, not sexual intercourse.43
Oral copulation is a felony, like California rape, and may be punished by three (3), six (6) or eight (8) years in state prison.44
A sexual battery per California Penal Code 243.4 PC 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. Prosecutors often charge sexual battery when a sexual assault occurs but it falls short of actual intercourse.45
Depending on the exact circumstances, this crime may be a misdemeanor or a wobbler.46
The crime of crime of Penal Code 288 "lewd acts with a minor child" takes place when a person touches a child 15 years or younger somewhere on his/her body for the purposes of sexual gratification. This crime may be a wobbler or a felony...with the nature of the crime and the maximum penalties depending on the age of the alleged victim and the defendant's relationship to him/her.47
If you are charged with rape, and the alleged victim is 15 or younger, there is a good chance you will face charges for lewd or lascivious acts with a child as well.
Stated in Penal Code 262, California spousal / marital rape laws are nearly identical to the crime of California rape with one key difference: the alleged victim has to be the defendant's spouse.48 The penalties for the two crimes are identical as well.49
So-called "date rape" is actually just another version of California rape under Penal Code 261 PC...not a separate crime.50 Date rape occurs when the defendant and the alleged victim were dating or were otherwise voluntarily spending time together. The penalties are the same as for any other kind of California rape.
Stated in Penal Code 289 PC, "forcible penetration with a foreign object" is identical to rape except that it addresses penetration with things other than a sexual organ. Examples would include a finger, a dildo or a stick. The penalties are identical to those of rape.
Call Us for Help...
If you or loved one is charged with Penal Code 261 rape and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
To learn about Nevada rape laws, go to our article on "Nevada rape laws."
¿Habla español? Visite nuestro sitio Web en español sobre la ley sobre el abuso sexual de California.
California Office of the Attorney General, Guide to Megan's Law (sex offender registration requirements)
The Innocence Project (exoneration of wrongfully convicted individuals through DNA evidence)
1California Penal Code 261 PC -- 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 [rape will be charged]. (4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused [rape will be charged]. 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 [rape will be charged]. 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.")
2California Penal Code 264 PC-Rape; punishment. ("(a) Except as provided in subdivision (c), rape, as defined in Section 261 or 262, is punishable by imprisonment in the state prison for three, six, or eight years.")
3 See same. ("(c)(1) Any person who commits rape in violation of paragraph (2) of subdivision (a) of Section 261 upon a child who is under 14 years of age shall be punished by imprisonment in the state prison for 9, 11, or 13 years. (2) Any person who commits rape in violation of paragraph (2) of subdivision (a) of Section 261 upon a minor who is 14 years of age or older shall be punished by imprisonment in the state prison for 7, 9, or 11 years.")
4 See California Penal Code 261 PC - Rape defined, endnote 1, above.
5 See same [Rape defined].
6 See same [Rape defined].
7 California 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.")
8 Judicial Council of California Criminal Jury Instructions ("CALCRIM") 1000 - Rape . . . by Force, Fear or Threats. ("The defendant is charged [in Count ] with rape [of his wife] by force [in violation of Penal Code section 261(a)]. 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 (not married/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 [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. A threat to retaliate is a threat to kidnap, falsely imprison, or inflict extreme pain, serious bodily injury, or death.] [threatening to use the authority of a public office to incarcerate, arrest, or deport someone. A public official is a person employed by federal, state, or local government who has authority to incarcerate, arrest, or deport. The woman must have reasonably believed that the defendant was a public official even if he was not.]")
See also CALCRIM 1002 - Rape of Intoxicated Woman; CALCRIM 1003 - Rape of Unconscious Woman; CALCRIM 1004 - Rape of a Disabled Woman; and CALCRIM 1005 - Rape by Fraud.
9 California 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.")
10 CALCRIM 1000 - Rape . . . by Force, Fear or Threats. ("[Ejaculation is not required.]")
11 See same. ("To prove that the defendant is guilty of this crime, the People must prove that: . . . 3 The woman did not consent to the intercourse; . . . .")
12 CALCRIM 1000 - Rape . . . by Force, Fear or Threats. ("[To consent, a woman must act freely and voluntarily and know the nature of the act.]")
13 See same. [Evidence that the defendant and the woman (dated/were married/had been married) is not enough by itself to constitute consent [and prevent a rape conviction].] [Evidence that the woman (requested/suggested/communicated) that the defendant use a condom or other birth control device is not enough by itself to constitute consent [and prevent a rape conviction].]"
14 California 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 [and prevent a rape conviction] where consent is at issue in a prosecution under Section 261, 262, 286, 288a, or 289.")
15 California 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.")
16 CALCRIM 1000 - Rape . . . by Force, Fear or Threats. ("[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.]")
17 See same. ("[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: 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.]")
18 See same.
19 Evidence Code 1103 EC – Character evidence of crime victim to prove conduct; evidence of defendant's character or trait for violence; evidence of manner of dress of victim; evidence of complaining witness' sexual conduct [rape shield law section: proving consent]. (“(c)(1) Notwithstanding any other provision of this code to the contrary, and except as provided in this subdivision, in any prosecution under Section 261, 262, or 264.1 of the Penal Code, or under Section 286, 288a, or 289 of the Penal Code, or for assault with intent to commit, attempt to commit, or conspiracy to commit a crime defined in any of those sections, except where the crime is alleged to have occurred in a local detention facility, as defined in Section 6031.4, or in a state prison, as defined in Section 4504, opinion evidence, reputation evidence, and evidence of specific instances of the complaining witness' sexual conduct, or any of that evidence, is not admissible by the defendant in order to prove consent by the complaining witness. (2) Notwithstanding paragraph (3), evidence of the manner in which the victim was dressed at the time of the commission of the offense shall not be admissible when offered by either party on the issue of consent in any prosecution for an offense specified in paragraph (1), unless the evidence is determined by the court to be relevant and admissible in the interests of justice. The proponent of the evidence shall make an offer of proof outside the hearing of the jury. The court shall then make its determination and at that time, state the reasons for its ruling on the record. For the purposes of this paragraph, “manner of dress” does not include the condition of the victim's clothing before, during, or after the commission of the offense. (3) Paragraph (1) shall not be applicable to evidence of the complaining witness' sexual conduct with the defendant. (4) If the prosecutor introduces evidence, including testimony of a witness, or the complaining witness as a witness gives testimony, and that evidence or testimony relates to the complaining witness' sexual conduct, the defendant may cross-examine the witness who gives the testimony and offer relevant evidence limited specifically to the rebuttal of the evidence introduced by the prosecutor or given by the complaining witness. (5) Nothing in this subdivision shall be construed to make inadmissible any evidence offered to attack the credibility of the complaining witness as provided in Section 782. (6) As used in this section, “complaining witness” means the alleged victim of the crime charged, the prosecution of which is subject to this subdivision.”)
20 CALCRIM 1000 - Rape . . . by Force, Fear or Threats. ("[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.]")
21 People 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.")
22 See 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].)")
23 However, the current version of the California jury instructions on Penal Code 261 PC rape use the term "woman" to describe the victim...but only because rape is usually committed against a woman, and the committee writing the instructions wanted to keep them "clear and concrete." See CALCRIM 1000 - Rape . . . by Force, Fear, or Threats: Commentary. ("Gender-specific language is used because rape usually occurs between a man and a woman. In keeping with plain English principles, the committee used those terms to make the instruction clear and concrete.")
24 People 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.")
25 California Jury Instructions - Criminal ("CALJIC") 3.00 - Principals-Defined. ("Persons who are involved in [committing] [or] [attempting to commit] a crime [including the crime of rape] are referred to as principals in that crime. Each principal, regardless of the extent or manner of participation is [equally guilty.] [guilty of a crime.] Principals include: . . . 2 Those who aid and abet the [commission] [or] [attempted commission] of the crime.")
26 California 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.")
27 California Penal Code 1203.65 -- Probation for PC 261 defendants (effective Jan. 1, 2017). ("a) Notwithstanding any other law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, a person who is convicted of violating paragraph (2), (3), (4), or (6) of subdivision (a) of Section 261, . . . . (b)(1) 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 person who is convicted of violating paragraph (7) of subdivision (a) of Section 261, . . . .")
28 California Penal Code 12022.7 -- Terms of imprisonment for persons inflicting great bodily injury while committing or attempting felony [including rape]. ("(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.
29 California 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.
30 California Penal Code 1192.7 -- Legislative intent regarding prosecution of violent sex crimes [including rape] . . . .("(c) As used in this section, "serious felony" means any of the following: (3) [California Penal Code 261] rape.") See alsoCalifornia 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.")
31 California Penal Code 264 PC - Rape; punishment. ("(c)(1) Any person who commits rape in violation of paragraph (2) of subdivision (a) of Section 261 upon a child who is under 14 years of age shall be punished by imprisonment in the state prison for 9, 11, or 13 years. (2) Any person who commits rape in violation of paragraph (2) of subdivision (a) of Section 261 upon a minor who is 14 years of age or older shall be punished by imprisonment in the state prison for 7, 9, or 11 years.")
32 California 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 [California rape statute]...")
33 See same.
34 California Penal Code 290.018 PC - Penalties for [failure to register as a sex offender, including after a rape conviction]. ("(a) Any person who is required to register under the Act based on a misdemeanor conviction or juvenile adjudication who willfully violates any requirement of the act is guilty of a misdemeanor punishable by imprisonment in a county jail not exceeding one year. (b) Except as provided in subdivisions (f), (h), and (j), any person who is required to register under the act based on a felony conviction or juvenile adjudication who willfully violates any requirement of the act or who has a prior conviction or juvenile adjudication for the offense of failing to register under the act and who subsequently and willfully violates any requirement of the act is guilty of a felony and shall be punished by imprisonment in the state prison for 16 months, or two or three years. (c) If probation is granted or if the imposition or execution of sentence is suspended, it shall be a condition of the probation or suspension that the person serve at least 90 days in a county jail. The penalty described in subdivision (b) or this subdivision shall apply whether or not the person has been released on parole or has been discharged from parole.")
35 Emily Bazelon and Rachael Larimore, How Often Do Women Falsely Cry Rape?, Slate, Oct. 1, 2009.
36 Bruce Gross, False Rape Allegations: An Assault On Justice, The Forensic Examiner, Sept. 15, 2012.
37 Riverside criminal defense attorney Michael Scafiddi was a police officer for over a decade before he made the switch to a career seeking justice for criminal defendants. Scafiddi practices sex crime defense law throughout the Inland Empire and represents clients at the Riverside Hall of Justice, the Palm Springs Courthouse, the San Bernardino Courthouse, and the Victorville Courthouse, among others.
38 CALCRIM 1000 - Rape . . . by Force, Fear, or Threats. ("To prove that the defendant is guilty of this crime, the People must prove that: . . . 3 The woman did not consent to the intercourse; . . . .")
39 See same. ("[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 [and therefore is considered rape in California] 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.]")
40 See same. ("[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.]")
41 California 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.")
42 See same. ("(b) Any person who engages in an act of unlawful sexual intercourse with a minor [statutory rape] who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor. (c) Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170. (d) Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.")
43 California 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.
44 See same. ("(2)(A) Any person who commits an act of oral copulation when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years.")
45 California Penal Code 243.4 -- Sexual battery [may be charged along with California rape]. ("(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.")
46 See same, subsections (a) - (e).
47 California Penal Code 288 PC - Lewd or lascivious acts; penalties; psychological harm to the victim [may be charged along with California rape].
48 California Penal Code 262 PC - Rape of a spouse. Penal Code 262 PC sets forth the elements of spousal rape, which are very similar to those of ordinary rape.
49 California Penal Code 264 PC - Rape; punishment.
50 California Penal Code 261 PC - Rape defined [includes date rape].