Penal Code § 261 PC – Rape – California Laws & Penalties

California Penal Code § 261 PC prohibits rape, which is using force, threats, or fraud to have non-consensual sex with another person. Also called “sexual assault,” rape is a felony usually punishable by three to eight years in prison and registration as a sex offender.¹

Examples of acts that can be prosecuted as rape include:

• frightening a woman into having sex by threatening to hurt her parents.
• having sex with a man who is mentally disabled, even if he seems agreeable to it.
• threatening to kill a man unless he has sex.
• having sex with someone after drugging them without their knowledge.

Note that penalties for rape under PC 264 are harsher if the alleged victim was a minor under 18 years old, as the following table shows.

Rape convictions can be expunged from your record only if you were not sentenced to California State Prison and you completed felony probation.

Note that if you contact us right after your arrest, we can reach out to the D.A. immediately through a “prefiling intervention” and try to show them that the allegations against you are baseless. If we are successful, we could prevent the D.A. from bringing charges against you at all.

Our California criminal defense attorneys will explain the following in this article re. sexual assault laws:

• 1. Elements of Rape
• 2. Common Defenses
• 3. Prison Time
• 4. Immigration Consequences
• 5. Expunging Records
• 6. Gun Rights
• 7. Civil Lawsuits
• 8. Related Offenses
• Additional Resources

1. Elements of Rape

Under California Penal Code 261 PC, rape comprises having sexual intercourse with someone who does not consent to it. “Sexual intercourse” means any penetration, no matter how slight, of the vagina or genitalia by the penis. Ejaculation is not required.²

Forcible or violent rape – such as by physically holding someone down or hurting them if they resist – is only one of many scenarios that violate PC 261. It is also rape if you accomplish sexual intercourse by:

• claiming that you will retaliate against the person or someone else if they do not give in, such as by physically harming them;
• pretending to be someone other than who you are, and the person reasonably believes your lies; or
• threatening to have the person arrested, jailed, or deported, and the person reasonably believes you are a public official who can carry out this threat.

In short, it is just as illegal to commit sexual assault through duress, coercion, menace, fear, fraud, or trickery as it is through direct physical force. Courts take mental shackles as seriously as material ones.³

What is consent?

A key element of rape under California Penal Code 261 is that the alleged victim does not consent to having sex. To consent, a person must act:

• freely,
• voluntarily, and
• knowing the nature of the act.

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 or asleep.⁴

Judges look to the circumstances of each case to determine whether consent existed. It is not necessary that your partner physically resist or fight back in order to communicate a lack of consent to you.

What about changing your mind mid-sex?

If your partner decides mid-intercourse that they want to stop despite initially consenting, they would need to communicate that they are changing their minds with words or actions.

As long as a reasonable person in your situation would understand that consent has been withdrawn, you would then be legally obligated to stop the intercourse immediately to avoid committing rape.⁵

False accusations of rape are a defense to sexual assault charges.

2. Common Defenses

Here at Shouse Law Group, we have represented literally thousands of people charged with sex crimes, including rape. In our experience, the following three defenses have been very effective with California prosecutors, judges, and juries.

1) The Alleged Victim Gave You Their Knowing 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.⁶

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 wishes to leave. However, she does not say anything to Paco, who proceeds with intercourse. Here, Paco is likely not guilty of sexual assault. The facts show that he could have held a reasonable belief that Isabella consented to sex.

Sometimes accusers wound themselves in an effort to back up their rape allegations to police. If this happens, we can call upon expert witnesses to study their medical records and testify how their injuries could only have been self-inflicted.

2) No Sexual Intercourse Occurred

PC 261 charges only apply if you and the alleged victim had sexual intercourse. Therefore, it is a defense for us to argue that:

1. while you may have committed certain acts with the accuser such as “making out,”
2. the acts did not rise to the level of “sexual intercourse.”

Unless there was video footage or eyewitness accounts of the incident, these cases come down to a “he said/she said” situation. If we can show the D.A. that they have insufficient evidence to prove guilt beyond a reasonable doubt at trial, they may be willing to reduce or drop the charge.

3) You Were Falsely Accused

Fake allegations happen all the time in California sex crime cases. Accusers typically lie out of:

• jealously,
• revenge,
• anger,
• regret, and/or
• a misunderstanding.

We often rely on accusers’ own text messages and voicemails to show their motivations to get you into trouble. We can also subject them to aggressive cross-examination on the witness stand to impeach their credibility.

Rape kits are valuable evidence in sexual assault cases.

3. Sentencing

Rape is a felony offense in California. If the victim is 18 or older, penalties include:

• 3, 6, or 8 years in prison and
• sex offender registration for life or for 20 years (depending on the case).

If the victim is 13 or younger, rape carries:

• 9, 11, or 13 years in prison and
• lifetime sex offender registration.

If the victim is between 14 and 17 years old, the penalty for rape is:

• 7, 9, or 11 years in prison and
• lifetime sex offender registration.

It does not matter if you genuinely thought the victim was older or if they lied about their age.⁸

Sentence Enhancement for Serious Injuries

In sexual assault cases, California courts will impose an additional three or five years in prison if the victim suffered great bodily injury.⁷ The following graphic shows examples:

Probation for Sexual Assault Convictions

California courts may not grant you probation in lieu of prison in rape cases if either:

• you used force or violence; or
• the victim sustained great bodily injury.⁹

If you are granted probation, you must abide by all the court’s conditions, which may include wearing a GPS monitor and staying away from the victim. Violating probation may cause you to go back to prison.

Rape as a Strike Offense

A sexual assault conviction also counts as a strike under California’s Three Strikes system.

This means if you get convicted of another serious felony later, the penalty will be automatically doubled. Then if you pick up a third serious felony after that, you get up to life in prison.¹⁰

4. Immigration Consequences

Since rape is a crime involving moral turpitude (CIMT), non-citizens convicted of it will face deportation once the prison sentence ends. Meanwhile, foreigners with rape convictions are deemed inadmissible and may not enter the U.S.¹¹

5. Expunging Records

Sexual assault 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.¹²

6. Gun Rights

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.¹³

Personal injury law allows lawsuits by sexual assault victims in California.

7. Civil Lawsuits

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

California crimes related to rape that involve sex acts and sexual abuse are:

1. assault with intent to commit a felony (PC 220) – assaulting someone with the further intent to commit a serious sex crime
2. sexual assault of the mentally disabled (PC 261(a)(1)) – sexual intercourse with a victim unable to consent due to an intellectual disability
3. sexual assault of a person incapable of consent (PC 261(a)(3)) – sexual intercourse with a victim unable to consent because they are unconscious, intoxicated, or otherwise unable to know what they are doing
4. sexual assault by fraud or artifice (PC 261(a)(5)) – deceiving a victim to have sexual intercourse
5. statutory rape (PC 261.5) – consensual sexual intercourse with a person under 18
6. sexual battery (PC 243.4) – touching of another person’s intimate parts for sexual gratification, arousal, or abuse
7. spousal rape (PC 262) (repealed under AB 1171) – rape between spouses is now prosecuted under PC 261
8. sodomy (PC 286) – sexual contact between the penis of one person and the anus of another when done with a minor or without consent
9. oral copulation by force or fear (PC 287) – non-consensual contact between someone’s mouth and another person’s genitals or anus
10. oral copulation with a minor (PC 288a) – making contact between the mouth of one person with the penis, vagina, or anus of another person, and one of the people is under 18
11. 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
12. criminal threats (PC 422) – making threats of death or great bodily injury that are intended to (and do) place victims in reasonable and sustained fear for their safety or the safety of their families
13. stalking (PC 646.9) – following, harassing, and threatening someone to the point that they fear for their safety
14. aggravated trespassing (PC 601) – threatening to injure someone, and then entering their home or workplace without permission

The definition of rape under PC 261 is non-consensual intercourse with another person.

Additional Resources

For additional information about California sexual assault laws and help for victims, refer to the following:

• Sexual Violence Resources – List by the California Attorney General of government agencies and other organizations providing information and support.
• California Coalition Against Sexual Assault (CALCASA) – Leading state advocacy group supporting victims and prevention. Key resource for education.
• California Victim Compensation Program – Provides financial assistance to victims of violent crime including sexual assault. State program.
• RAINN – National sexual assault hotline providing free, confidential support for survivors 24/7.
• Victims of Crime Resource Center – Provides information, assistance and referrals for victims of all types of crimes in California.

Legal References