Penal Code 264 PC is the California statute that sets forth the punishment for the crime of rape. Under this law, rape or spousal rape is a felony offense punishable by custody in state prison for up to 8 years. This prison time will increase to up to a 13-year prison sentence if a rape “victim” was a child or a minor at the time of the offense.
Under California Penal Code Section 261 PC, rape is the crime where people use force, threats of force, or fraud as a means of having non-consensual sexual intercourse with someone who is not their spouse.
Under Penal Code 262 PC, spousal rape is the crime where people have unlawful sexual intercourse with their spouse and do so without their spouses’ consent. The offense is sometimes referred to as marital rape and it is falls under the umbrella of California’s domestic violence laws.
Our California criminal defense attorneys will address the following in this article:
- 1. What are the penalties for rape?
- 2. Will a person convicted of rape be deported?
- 3. Does a rape conviction affect a person’s gun rights?
- 4. How does Penal Code 261 define rape?
- 5. What is spousal rape under Penal Code 262?
1. What are the penalties for rape?
Under California law, rape and spousal are felony offenses (as opposed to misdemeanor offenses) punishable by a prison term of up to eight years.i
Any person who commits rape upon a child who is under 14 years of age will face a sentence of imprisonment for up to 13 years.ii
Any person who commits rape upon a minor who is 14 years of age or older will face a prison term (as opposed to time in a county jail) for up to 11 years.iii
Note that in rape charges that involve a minor or child “victim,” then depending on the facts of the criminal proceedings, prosecutors can charge an offender with both rape and:
- aggravated sexual assault of a child, per Penal Code 269, and/or
- sex with a child under 10, per Penal Code 288.7.
If convicted of these crimes, then the offender will face prison time for these offenses and the prison term imposed for a rape conviction.
Note, too, that an offender will receive additional prison time for rape if, during the commission of the crime, the offender inflicted great bodily injury on the “victim.” This additional prison term is imposed under Penal Code 12022.7 PC, California’s great bodily injury sentencing enhancement. The additional prison time under this statute can be up to six years.
2. Will a person convicted of rape be deported?
A rape conviction will result in harmful consequences to a person’s immigration status.
California law says that rape is a crime involving moral turpitude (CIMT).iv
If a non-citizen defendant is convicted of a CIMT, he/she will be either deported, or marked as inadmissible.
3. Does a rape conviction affect a person’s gun rights?
A conviction under Penal Code 261 will have adverse consequences on an offender’s gun rights.
California law says that convicted felons are not allowed to:
- buy a gun,
- own a gun, or
- possess a gun.
Since rape is a felony offense, a conviction would strip away a defendant’s gun rights.
4. How does Penal Code 261 define 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:
- fear of bodily injury,
- retribution, and/or
The provisions of PC 261 list several acts that will 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.vi
For purposes of this statute, “sexual intercourse” means any sexual penetration, no matter how slight, of the vagina or genitalia by the penis.vii Penetration by a foreign object does not equate to sexual intercourse.
Note that ejaculation is not required for an act to be considered sexual intercourse.viii
Sex crimes similar to rape include:
- oral copulation by force or fear, per Penal Code 287,
- continuous sexual abuse of a child, per Penal Code 288.5, and
- sodomy, per Penal Code 286.
5. What is spousal rape under Penal Code 262?
Per PC 262, spousal rape is a sexual offense where a person has sexual intercourse with his/her spouse with a lack of consent.
The language of this statute sets forth several instances in which sexual intercourse takes place without a spouse’s consent. For example, the law says there is no consent if intercourse is accomplished:
- by the use of force, violence, duress, sexual abuse, or fear of bodily injury,ix
- when the “victim” is unable to resist because of drugs, alcohol, or medication,x
- when the “victim” is unconscious of what is going on (for example, while he/she is asleep),
- when the abuser threatened to kidnap, injure, or kill the “victim,” or anyone else, if the victim did not have sex, and
- when the abuser persuaded the spouse to believe that he/she was a public official and would imprison, arrest, or deport the spouse if no sexual relations took place.xi
For both rape and spousal rape, the “victim” is considered to have consented only if he/she:
- acts freely and voluntarily, and
- knows the nature of the act he/she is agreeing to.xii
Note that people accused of either rape or spousal rape can challenge the accusations with a legal defense. A few common defenses include defendants showing that:
- the “victim” consented to the sexual intercourse,
- law enforcement or a police officer gathered evidence without the issuance of a valid search warrant, and/or
- they were falsely accused.
For additional help…
For additional guidance or to discuss your case with a criminal defense lawyer, we invite you to contact our law firm at the Shouse Law Group. Our attorneys provide both free consultations and legal advice you can trust. They also represent clients throughout California, including those in Los Angeles and San Diego.
- California Penal Code 264 Subsection a PC.
- California Penal Code 264c1 PC.
- California Penal Code 264c2 PC.
- People v. Mazza, (1985) 175 Cal.App.3d 836.
- California Penal Code 261 PC. See also CALCRIM No. 1000 – Rape or Spousal Rape. Judicial Council of California Criminal Jury Instructions (2020 edition).
- California Penal Code 261 PC.
- CALCRIM No. 1000. See also People v. Karsai (1982) 131 Cal.App.3d 224.
- CALCRIM No. 1000.
- See People v. Mejia (2017) 9 Cal.App.5th 1036. As to duress, see People v. Leal (2004) 33 Cal.App.4th 999.
- See People v. Gray (2011) 194 Cal.App.4th 1133.
- California Penal Code 262 PC.
- CALCRIM No. 1000.