Penal Code § 261 PC is the California statute that defines rape as the use of force, threats, or fraud to have non-consensual sex with another person. A conviction is a felony usually punishable by three to eight years in prison and registration as a sex offender.1
Five key things to know about California rape laws are:
- Victims may be unable to legally consent to sex if they have a mental disorder, are intoxicated, or are unconscious.
- Common defenses to PC 261 charges are that the victim consented, that you were falsely accused, or that no sexual intercourse occurred.
- A rape conviction will strip you of your firearm rights for life unless you receive a governor’s pardon.
- Rape convictions can be expunged from your record only if you were not sentenced to California State Prison and you completed felony probation.
- The criminal sentence for rape under PC 264 is more severe if the victim was a minor:
| Age of Rape Victim | California Felony Penalties |
| 18 years old and older |
|
| 14 to 17 years old |
|
| Under 14 years old |
|
Examples of rape
- 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.2
Our California criminal defense attorneys will explain the following in this article:
- 1. How does California law define the crime of rape?
- 2. What are the legal defenses?
- 3. Is 261 PC a felony?
- 4. Will I be deported?
- 5. Can a rape conviction be expunged?
- 6. Does a conviction affect gun rights?
- 7. Can a victim sue for rape?
- 8. Related offenses
The definition of rape under PC 261 is nonconsensual intercourse with another person.
1. How does California law define the crime of rape?
A prosecutor must prove the following elements of the crime in order to convict you of rape:
- you committed an act of sexual intercourse with another person,
- the other person did not consent to the sexual intercourse, and
- you accomplished the act by using any of the following:
- physical force that overcomes a person’s will,3
- violence where you intend to hurt or kill,
- duress sufficient to coerce a person into having sex,
- menace, which is a threat, statement, or act showing an intent to injure someone,4
- fear requiring that a person actually and reasonably be afraid,5
- retribution, which is a form of payback or revenge,6 or
- fraud by using deceit or trickery to influence someone into having sex.7
For purposes of this statute, “sexual intercourse” means any penetration, no matter how slight, of the vagina or genitalia by the penis.8 Ejaculation is not required for an act to be considered sexual intercourse.9
1.1. What is consent?
A key element of rape in California is that the alleged victim does not consent to having sex. To consent, a person must act:
- freely,
- voluntarily, and
- know the nature of the act.10
Judges look to the circumstances of each case to determine whether consent existed.11 It is not necessary that your partner physically resist or fight back in order to communicate a lack of consent to you.12
If your partner decides mid-intercourse that they want to stop despite initially consenting, they would need to communicate this with words or actions. As long as a reasonable person in that situation would understand that consent has been withdrawn, you would then be legally obligated to stop the intercourse immediately to avoid committing rape.13
False accusations of rape are a defense to sexual assault charges.
2. What are the legal defenses?
2.1. Consent
You are not guilty of rape in California if the alleged “victim” consented to having sexual intercourse. Further, you are not guilty if:
- you actually and reasonably believed that
- the other person consented to the intercourse.14
Note that certain people are not capable of legally consenting to sex, no matter what they say or do. These people include:
- severely intoxicated people,
- people with serious mental disorders, and
- people who are unconscious.15
2.2. No sexual intercourse
Two parties must engage in “sexual intercourse” for there to be a California rape charge. This means it is a defense that:
- while you may have committed certain acts with a “victim,”
- the acts did not rise to the level of “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. People levy fake allegations out of:
- jealously,
- revenge,
- anger,
- regret and/or
- a misunderstanding.
Defense attorneys often rely on accusers’ own text messages and voicemails to show their motivations to lie.
3. Is 261 PC a felony?
Yes, rape is a felony offense in California. Penalties typically include 3, 6, or 8 years in prison as well as sex offender registration.
However penalties are more severe if the victim is under 18.16 Plus the court will impose an additional 3 or 5 years in prison if the rape victim suffered great bodily injury.17
The court may not impose probation in lieu of prison in rape cases if either:
- you used force or violence; or
- the victim sustained great bodily injury.18
4. Will I be deported?
Yes. Since rape is a crime involving moral turpitude (CIMT), non-citizens convicted of it will face deportation once the prison sentence ends.19
5. Can a rape conviction be expunged?
Rape convictions are expungeable in California if:
- you are awarded and complete felony probation; and
- you are not sentenced to state prison (which is different from county jail).
If you serve any prison sentence for rape, your conviction is not expungeable.
6. Does a conviction affect gun rights?
Yes. Since rape is a felony in California, getting a conviction will strip you of the right to own, purchase, or possess firearms for life. Though you may get your gun rights restored through a governor’s pardon.
Personal injury law allows lawsuits by sexual assault victims in California.
7. Can a victim sue for rape?
Yes. California sexual assault victims can bring personal injury lawsuits against their alleged rapists for such damages as:
- medical bills, including psychological counseling,
- lost wages and lost earning capacity,
- anxiety, insomnia, pain and suffering, and
- punitive damages.
Note that alleged rapists can be found liable in a civil lawsuit even if they were never charged or convicted in criminal court.
8. Related offenses
Six crimes related to rape that involve sex acts and sexual abuse are:
- statutory rape – PC 261.5 – consensual sexual intercourse with a person under 18
- sexual battery – PC 243.4 – touching of another person’s intimate parts for sexual gratification, arousal, or abuse
- spousal rape – PC 262 (repealed under AB 1171) – rape between spouses is now prosecuted under PC 261
- forcible penetration with a foreign object – PC 289 – putting an object into another person’s vagina or anus by force or violence and without consent
- forcible oral copulation – PC 287 – non-consensual contact between someone’s mouth and another person’s genitals or anus
- sodomy – PC 286 – sexual contact between the penis of one person and the anus of another when done with a minor or without consent
For additional help…
We invite you to contact us at Shouse Law Group for additional guidance or to discuss your case with a criminal defense attorney.
Legal References
- California Penal Code 261 PC: (a) Rape is an act of sexual intercourse accomplished under any of the following circumstances: (1) If a person who is not the spouse of the person committing the act 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. This paragraph does not preclude the prosecution of a spouse committing the act from being prosecuted under any other paragraph of this subdivision or any other law. (2) If 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) If a person is prevented from resisting by an intoxicating or anesthetic substance, or a controlled substance, and this condition was known, or reasonably should have been known by the accused. (4) If 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) If 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 artifice, pretense, or concealment practiced by the accused, with intent to induce the belief. (6) If 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) If 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) For purposes of this section, the following definitions apply: (1) “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 the victim’s relationship to the defendant, are factors to consider in appraising the existence of duress. (2) “Menace” means any threat, declaration, or act that shows an intention to inflict an injury upon another. See also: People v. Young (1987) 190 Cal.App.3d 248; People v. Cicero (1984) 157 Cal.App.3d 465; People v. Griffın (2004) 33 Cal.4th 1015; People v. Iniguez (1994) 7 Cal.4th 847; People v. Mayberry (1975) 15 Cal.3d 143; People v. Williams (1992) 4 Cal.4th 354; People v. Kelly (1992) 1 Cal.4th 495; People v. Carpenter (1997) 15 Cal.4th 312; People v. Ramirez (1990) 50 Cal.3d 1158.
- Same.
- People v. Dearborne (2019) 34 Cal.App.5th 250.
- CALCRIM No. 1000 – Rape or Spousal Rape by Force, Fear, or Threats. Judicial Council of California Criminal Jury Instructions (2017 edition).
- See same.
- See same.
- People v. Morales (2013) 212 Cal.App.4th 583.
- CALCRIM No. 1000. See also People v. Karsai (1982) 131 Cal.App.3d 224.
- CALCRIM No. 1000.
- See same.
- People v. Ireland (2010) 188 Cal.App.4th 328.
- CALCRIM No. 1000. See also People v. Barnes (1986) 42 Cal.3d 284.
- See also In re John Z. (2003) 29 Cal.4th 756.
- CALCRIM No. 1000. See also: People v. Castillo (1987) 193 Cal.App.3d 119; People v. Cardenas (1994) 21 Cal.App.4th 927; People v. Barnes (1986) 42 Cal.3d 284; People v. Dominguez (2006) 39 Cal.4th 1141; People v. May (1989) 213 Cal.App.3d 118. 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.
- Penal Code 261 PC. With regards to being unconscious, see also People v. Dancy (2002) 102 Cal.App.4th 21; and, People v. Manning (2014) 226 Cal.App.4th 1133.
- California Penal Code 261 PC. See also: People v. Harrison (1989) 48 Cal.3d 321; People v. Matute (2002) 103 Cal.App.4th 1437; People v. Jones (1990) 51 Cal.3d 294.
- California Penal Code 261 PC. California Penal Code 12022.7 PC. California Penal Code 264 PC. California Penal Code 290 PC.
- California Penal Code 1203 PC. See also California Rules of Court 4.414. See, for example, People v. Ramirez (Court of Appeal of California, Fourth Appellate District, Division One, 2006) 143 Cal. App. 4th 1512.