Penal Code 261 PC – “Rape” – California Laws & Penalties

Penal Code 261 PC defines rape as the use of force, threats, or fraud to have non-consensual sexual intercourse with another person. A rape conviction is a felony punishable by up to 8 years in prison and requires lifetime registration as a sex offender.

Section 261 PC 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 and therefore unable to give consent.

Further 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.

Defenses

False accusations of rape are not uncommon. A defendant may contest a rape charge with a legal defense. Common defenses include:

• consent,
• no sexual intercourse, and/or
• falsely accused.

Penalties

The penalties for rape in California are set forth in Penal Code 264 PC. A violation of 261 PC is a felony. This is opposed to

• a misdemeanor or
• an infraction.

The offense is punishable by:

• custody in state prison for three, six, or eight years, or
• felony (or formal) probation.

Our California criminal defense attorneys will explain the following in this article:

• 1. How does California law define the crime of rape?
  • 1.1. Force, violence, etc.
  • 1.2. Sexual intercourse
  • 1.3. Consent
  • 1.4. Certain people that legally cannot consent
• 2. Are there legal defenses?
  • 2.1. Consent
  • 2.2. No sexual intercourse
  • 2.3. Falsely accused
• 3. Is 261 PC a felony?
• 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?
  • 8.1. Statutory rape – PC 261.5
  • 8.2. Sexual battery – PC 243.4
  • 8.3. Spousal rape – PC 262 (now repealed)
  • 8.4. Forcible penetration with a foreign object – PC 289
  • 8.5. Forcible oral copulation – PC 287

1. How does California law define the crime of rape?

A prosecutor must prove the following elements of the crime in order to convict a person of rape:

1. the defendant committed an act of sexual intercourse with another person,
2. the parties were not married at the time,
3. the other person did not consent to the sexual intercourse, and
4. the accused accomplished the act by using any of the following:
   • by means of force,
   • violence,
   • duress,
   • menace,
   • fear of bodily injury,
   • retribution, and/or
   • fraud.¹

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 (for example, force, violence, etc.).
• sexual intercourse, and
• consent.

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 terms all have specific meanings 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

1.3. Consent

A person is only guilty under these laws if 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

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:

1. the victim communicates no consent, via words or acts, to the defendant
2. a reasonable person would have understood that the words or acts meant no consent, and
3. 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 actually said “no” or “stop“, the facts of the situation show that she did not consent.

1.4. Certain people that legally 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/she 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 under California state law are:

1. consent,
2. no sexual intercourse, and/or
3. falsely accused.

The district attorney has the burden to prove guilt beyond a reasonable doubt when rape cases go to trial.

2.1. Consent

A defendant is not guilty of rape if the alleged “victim” consented to having 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 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. This includes cases of rape. An accuser may falsely blame another for the crime out of:

• jealously,
• revenge, or
• anger.

It is always a defense, therefore, for the defendant to assert that he/she was accused of rape and unjustly blamed.

3. Is 261 PC a felony?

Rape is a felony offense in California. The penalties depend on the victim’s age:

Age of Rape Victim	California Felony Penalties
18 years old and older	3, 6, or 8 years in California State Prison, and sex offender registration (for 20 years or for life, depending on the case)
14 to 17 years old	9, 11, or 13 years in prison, and lifetime sex offender registration
Under 14 years old	7, 9, or 11 years in prison, and lifetime sex offender registration16

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:

• the defendant used force or violence; or
• the victim sustained great bodily injury.¹⁸

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, they will be:

• deported, or
• marked as inadmissible.

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 their rapists for the following damages:

• medical bills,
• psychological counseling,
• lost wages,
• lost earning capacity,
• anxiety, insomnia, pain and suffering, and
• punitive damages (in egregious cases).

Note that:

• 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 five crimes related to rape that involve sex acts and sexual abuse. These are:

1. statutory rape – PC 261.5,
2. sexual battery – PC 243.4,
3. spousal rape – PC 262 (now repealed),
4. forcible penetration with a foreign object – PC 289, and
5. forcible oral copulation – PC 287.

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
• abuse.

As with rape, consent is a valid defense to sexual battery charges.

8.3. Spousal rape – PC 262 (now repealed)

Penal Code 262 PC was the California statute that defined the offense of “spousal rape”, which is where one spouse rapes another. This statute was repealed in 2021 by AB 1171. Spousal rape is now treated and punished the same as non-spousal rape.²⁰

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:

1. the accused committed an act of sexual penetration with another person,
2. the penetration was accomplished using a foreign or unknown object,
3. the penetration was without the other person’s consent, and
4. 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 287

Penal Code 287 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:

1. it results from force or violence, or
2. 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.²¹

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.”

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Legal References