Penal Code 261 PC is the California statute that defines the offense of sexual assault or “rape.” This section makes it a felony to engage in non-consensual sexual intercourse with another person by means of threats, force or fraud. The crime is punishable by up to 8 years in state prison.
Penal Code 261 lists a series of acts that constitute rape. These include non-consensual sex with someone else while:
- the other person is incapable of consenting because of a mental disorder,
- the intercourse is done by the use of force, violence, or duress,
- the other person cannot consent because of intoxication, and
- the other person is unconscious of the act.
- frightening a woman into having sex by threatening to hurt her parents.
- having sex with a man who is mentally disabled.
- threatening to kill a man unless he has sex.
A defendant can challenge a rape charge with a legal defense. Common defenses include:
- no sexual intercourse, and/or
- falsely accused.
The offense is punishable by:
- custody in state prison for up to eight years, or
- felony (or formal) probation.
Our California criminal defense attorneys will highlight the following in this article:
- 1. How does California law define rape?
- 1.1. Force, violence, etc.
- 1.2. Sexual intercourse
- 1.3. Consent
- 1.4. Certain people that cannot consent
- 2. Are there legal defenses?
- 3. What are the penalties for 261 PC?
- 4. Will a person convicted of rape be deported?
- 5. Can a rape conviction be expunged?
- 6. Does a conviction affect gun rights?
- 7. Can a victim sue for rape?
- 8. Are there related offenses?
1. How does California law define rape?
A prosecutor must prove the following to convict a person of rape:
- the defendant had sexual intercourse with another person,
- the parties were not married at the time,
- the other person did not consent to the sexual intercourse, and
- the accused accomplished the act by using any of the following:
- fear of bodily injury,
- retribution, and/or
Note also that:
- a “victim” of rape must be alive at the time of the offense,
- for a person to be guilty under this statute.2
Questions often arise under these laws on the meaning of:
- the ways by which an accused can commit the crime (i.e., force, violence, etc.).
- sexual intercourse, and
1.1. Force, violence, etc.
The fourth element above states that an accused must:
- accomplish sexual intercourse via certain means,
- to be guilty under this statute.
These means all have specific definitions under the law. The acts are defined as follows:
- force means physical force that overcomes a person's will,3
- violence means behavior that intends to hurt or kill,
- duress refers to a threat that is sufficient to coerce a person into having sex,
- menace means a threat, statement, or act showing an intent to injure someone,4
- fear requires that a person actually and reasonably be afraid,5
- retribution is a form of payback or revenge,6 and
- fraud means using deceit or trickery to influence someone into having sex.7
1.2. Sexual intercourse
For purposes of this statute, “sexual intercourse” means:
- any penetration, no matter how slight, of the,
- vagina or genitalia by the penis.8
Note that ejaculation is not required for an act to be considered sexual intercourse.9
A person is only guilty under these laws if the alleged victim does not consent to having sex.
To consent, a person must act:
- voluntarily, and
- know the nature of the act.10
Note that a person who:
- initially consents to an act of intercourse,
- may change his/her mind during the act and no longer consent.
If this happens, an act of intercourse is committed without consent if:
- the victim communicates no consent, via words or acts, to the defendant
- a reasonable person would have understood that the words or acts meant no consent, and
- the defendant forcibly continued the act of intercourse despite any objection.11
Also note that it is not required that a person:
- physically resist or ﬁght back,
- in order to communicate a lack of consent.12
Example: Karen and her boyfriend get in a fight and Karen goes to a bar to calm down. She meets Paul and later invites him back to her apartment. The two begin to have sex. But Karen feels bad about cheating on her boyfriend and tells Paul: “We have to stop now – I don't want to have sex with you.” Paul overpowers her and continues the intercourse.
Here, Paul is guilty of rape. While Karen may have initially consented to sex, she later withdrew it by telling Paul that they have to stop. This was a clear message that a reasonable person would take it to mean “no consent.” Also note that Paul is guilty even though Karen did not physically shove or hit Paul in any way.
California law also states that the specific circumstances of a case may show no consent.13
Example: Kelly is working as a prostitute. Jerome picks her up and she agrees to have sex with him. He drives to a park and the two get in the backseat. Jerome slides a knife against Kelly's ribs. She starts to cry and begs Jerome not to hurt her. He tells her he won't if she cooperates and he continues to have intercourse with her. Kelly cries the entire time.
Jerome is guilty of rape. While Kelly never said no or stop, the facts of the situation show that she did not consent.
1.4. Certain people that cannot consent
Penal Code 261 sets forth certain people that are:
- not capable of consenting,
- to sexual intercourse.
This means an accused is guilty of rape if he has sexual intercourse with them.
Those not capable of consenting include:
- someone that is too intoxicated to consent,
- a person with a mental disorder that is unable to consent, and
- an unconscious person.14
2. Are there legal defenses?
A defendant can raise a legal defense to contest a rape charge.
Three common defenses are:
- no sexual intercourse, and/or
- falsely accused.
A defendant is not guilty of rape if the alleged “victim” consented to have sexual intercourse. Further, a party is not guilty if:
- the accused actually and reasonably believed that,
- the other person consented to the intercourse.15
Example: Paco and Isabella go back to Paco's apartment after a date and begin making out. This soon leads to intercourse. During sex, Isabella starts to think that it might not be a good idea and she wishes to leave. But she doesn't say anything to Paco, who proceeds with intercourse.
Here, Paco is likely not guilty of rape. The facts show that he could have held a reasonable belief that Isabella consented to sex.
2.2. No sexual intercourse
Recall that two parties must engage in “sexual intercourse” for there to be a charge of rape. Further, this phrase has a precise legal definition under California law. This means it is always a defense for an accused to say that:
- while he/she may have committed certain acts with a “victim,”
- the acts did not arise to “sexual intercourse.”
Perhaps, for example, maybe two people only made out without any penetration.
2.3. Falsely accused
False accusations happen all the time in California sex crime cases. This includes cases of rape. A person may falsely blame another of the crime out of:
- revenge, or
It is always a defense, therefore, for the defendant to assert that he was unjustly blamed.
3. What are the penalties for 261 PC?
Rape is a felony offense in California.
Under 261 PC, crime is punishable by:
- custody in state prison for up to eight years, and/or
- felony (or formal) probation.16
A defendant can face:
- an additional three to five years in prison,
- if the alleged victim suffered great bodily injury in the commission of the offense.17
Prison time can also increase if:
- the alleged victim was a minor under the age of 18 (up to 11 years in prison), and
- the alleged victim was a minor under the age of 14 (up to 13 years in prison).18
Most rape convictions also impose a lifetime sex offender registration requirement.
4. Will a person convicted of rape be deported?
A rape conviction will have negative immigration consequences.
California law says rape is a crime involving moral turpitude (CIMT).19
If a non-citizen defendant is convicted of a CIMT, he will be:
5. Can a rape conviction be expunged?
A person convicted of rape can only get an expungement if awarded felony probation.
By law, expungements are prohibited if a defendant receives prison time. This is opposed to time in county jail.
This means that:
- an expungement is not allowed for rape if,
- the conviction results in a prison sentence.
The crime, though, can be expunged if the defendant gets probation instead of prison.
6. Does a conviction affect gun rights?
A conviction under Penal Code 261 will adversely affect a defendant's gun rights.
California law says that:
- convicted felons,
- are not allowed to own or possess a gun.
Since rape is a felony offense, a conviction would strip away a defendant's gun rights.
7. Can a victim sue for rape?
Personal injury law allows lawsuits by sexual assault victims in California.
Rape victims can sue for the following damages:
- medical bills,
- psychological counseling,
- lost wages,
- lost earning capacity,
- anxiety, insomnia and pain and suffering, and
- punitive damages (in egregious cases).
- a victim can sue an attacker for damages for sexual assault,
- even if that person was not convicted in a criminal trial.
8. Are there related offenses?
There are three crimes related to rape. These are:
- statutory rape – PC 261.5,
- sexual battery – PC 243.4,
- spousal rape – PC 262,
- forcible penetration with a foreign object – PC 289, and
- forcible oral copulation – PC 288a.
8.1. Statutory rape – PC 261.5
Penal Code 261.5 PC is the California law that defines the crime of "statutory rape." This crime takes place when:
- any person engages in sexual intercourse,
- with a person under the age of eighteen.
Statutory rape is a crime regardless of whether the sex was:
- consensual, or
- even initiated by the minor.
8.2. Sexual battery – PC 243.4
Penal Code 243.4 PC prohibits touching the intimate part of another person for purposes of:
- sexual gratification,
- arousal, or
As with rape, consent is a valid defense to sexual battery charges.
8.3. Spousal rape – PC 262
Penal Code 262 PC is the California statute that defines the offense of “spousal rape.”
A person commits this crime if:
- he commits rape, and
- the victim is his spouse.
Recall that this is not a crime, per PC 261, because one of that law's elements requires that:
- the accused and victim,
- not be married.
8.4. Forcible penetration with a foreign object – PC 289
Penal Code 289 PC is the California statute that defines the crime of “forcible penetration with a foreign object.”
A prosecutor must prove the following to convict a person of this crime:
- the accused committed an act of sexual penetration with another person,
- the penetration was accomplished using a foreign or unknown object,
- the penetration was without the other person's consent, and
- the offense was committed through the use of force or violence.
An example of this crime is when:
- a man uses physical force to subdue a woman, and
- then puts his finger into her vagina.
8.5. Forcible oral copulation – PC 288a
Penal Code 288a PC defines "oral copulation by force or fear" as:
- non-consensual contact between,
- someone's mouth and another person's genitals or anus.
The activity is illegal if:
- it results from force or violence, or
- it occurs because one party is intoxicated, unconscious or otherwise legally unable to consent.
Note that like rape, a party cannot consent under this statute if intoxicated or unconscious.
For additional help...
For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group.
For information on rape charges in Nevada and Colorado, please see our articles on:
- “NRS 200.366 - "Sexual Assault / Rape" Laws in Nevada,” and
- “18-3-402 C.R.S. - Rape and Sexual Assault Laws in Colorado.”
California Penal Code 261 PC.
CALCRIM No. 1000 - Rape or Spousal Rape by Force, Fear, or Threats. Judicial Council of California Criminal Jury Instructions (2017 edition).
CALCRIM No. 1000 - Rape or Spousal Rape by Force, Fear, or Threats. See also People v. Karsai (1982) 131 Cal.App.3d 224.
See same. See also In re John Z. (2003) 29 Cal.4th 756.
CALCRIM No. 1000 - Rape or Spousal Rape by Force, Fear, or Threats. See also People v. Barnes (1986) 42 Cal.3d 284.
CALCRIM No. 1000 - Rape or Spousal Rape by Force, Fear, or Threats.
California Penal Code 264 PC.
California Penal Code 12022.7 PC.
California Penal Code 264 PC.