Penal Code 261 PC defines rape as the use of force, threats or fraud to have non-consensual sexual intercourse with another person. This offense is a felony punishable by a maximum sentence of up to 8 years in state prison. Under Megan’s Law, a conviction also requires lifetime registration as a sex offender.
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 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.
False accusations of rape are not uncommon. A defendant may contest 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 explain the following in this article:
- 1. How does California law define the crime of rape?
- 2. Are there legal defenses?
- 3. What are the penalties for Penal Code 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 the crime of rape?
A prosecutor must prove the following to convict a person of rape:
- the defendant committed an act of 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:
- by means of force,
- 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 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
A person is only guilty under these laws if the alleged victim does not consent to have 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/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:
- no sexual intercourse, and/or
- falsely accused.
The district attorney has the burden to prove guilt beyond a reasonable doubt when rape cases go to trial.
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 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 of the crime out of:
- revenge, or
It is always a defense, therefore, for the defendant to assert that he/she was accused of rape and unjustly blamed.
3. What are the penalties for Penal Code 261 PC?
Rape is a felony offense in California.
The 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/she 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).
- 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:
- statutory rape – PC 261.5,
- sexual battery – PC 243.4,
- spousal rape – PC 262 (now repealed),
- forcible penetration with a foreign object – PC 289, and
- 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
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:
- 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 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:
- 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: (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.
- People v. Sellers (1988) 203 Cal.App.3d 1042.
- 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.
- See same. See also In re John Z. (2003) 29 Cal.4th 756.
- CALCRIM No. 1000. See also People v. Barnes (1986) 42 Cal.3d 284.
- People v. Ireland (2010) 188 Cal.App.4th 328.
- 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.
- CALCRIM No. 1000.
- California Penal Code 264 PC.
- California Penal Code 12022.7 PC.
- California Penal Code Section 264 PC.
- People v. Mazza, (1985) 175 Cal.App.3d 836
- California Assembly Bill 1171 (AB 1171) 2021.