Penal Code 264.1 PC - Gang Rape (Rape Act in Concert)

Penal Code 264.1
 is the California law that makes it illegal to act in concert with someone who commits a rape. This section is commonly referred to as a “gang rape” or "rape in concert" statute.

Specifically, the statute defines rape in concert as:

“Voluntarily acting in concert with another person, by force or violence and against the will of the victim [to commit a sex crime], either personally or by aiding and abetting the other person…”

rape hands holding down victim in concert with someone else not shown
California Penal Code 264.1 makes it illegal to act in concert with someone who commits a rape.

1. What does it mean to engage in rape in concert?

Acting in concert with someone else under Penal Code 264.1 can happen in 2 ways:

  • Personally committing rape while someone else is assisting in the rape, or
  • Aiding and abetting someone else who committed forcible rape.1

This is why the section is referred to as gang rape. It applies when multiple people team together to commit rape. These people are:

  • the person actually raping someone else, and
  • their accomplices.

2. What does “aiding and abetting” mean?

“Aiding and abetting” in this context means helping someone commit forcible rape. Aiding and abetting occurs when a defendant:

  1. knows the perpetrator plans to commit the crime,
  2. intends to help carry out the crime, and
  3. actually assists, facilitates or encourages the commission of the crime, whether through words or actions.2

Important factors include:

  • The presence of the defendant at the scene of the crime,
  • Whether the defendant is a companion of the person who directly committed the crime, and
  • The defendant's conduct before or after the offense.3

However, physical presence is not required to aid and abet a crime.4 Physical assistance is also not required – instigating the commission of the crime is enough.5

3. To what forms of rape does Penal Code 264.1 apply?

The section only applies if there was a serious sex crime.  These offenses include:

4. What are some examples of sex in concert?

  • One man holds a woman down and beats her while a second man rapes her,6
  • One man forces a woman to perform oral sex after another man raped her at gunpoint and then left the room,7 and
  • 3 men rob a family in their house. While 2 of them hold the family at gunpoint, the third person pulls the wife into the bathroom and rapes her.8
man assaulting woman
There are other criminal charges that are often filed alongside sex in concert allegations

5. Are there related offenses?

Sex in concert charges come with forcible rape charges. However, there are other criminal charges that are often filed together with PC 264.1. These include:

  • Assault (Penal Code 240 PC). This law prohibits attempting to use unlawful force against someone else. The force used during a rape can create an assault charge.
  • Battery (Penal Code 242 PC). This law prohibits actually using unlawful force. Any force used during a rape can also lead to a charge for battery.
  • Assault with intent to rape (Penal Code 220 PC). Assaulting someone with intent to commit certain felonies can lead to additional charges.

6. What are common defenses?

People charged with having sex in concert with someone else can raise legal defenses to fight the charge. The 2 most common are:

  1. Lack of intent to aid and abet the crime, and
  2. Withdrawal.

People who initially intend to help someone commit a crime can withdraw their help. To withdraw from the commission of forcible rape, defendants must:

  • notify everyone else known to be involved that they are no longer helping, and
  • do everything reasonably in their power to prevent the crime from happening.9

Notifying others of withdrawal has to be done early in the process. It has to be made early enough to prevent the commission of the crime.10

7. What are the penalties?

The penalties of a conviction depend on the age of the victim. It is always a felony.

Age of the victim

Maximum jail time

Adult over the age of 18

9 years

Minor between 14 and 18

11 years

Minor under the age of 14

14 years

These penalties are in addition to any that come with the underlying conviction for a rape crime. Penal Code 264.1 is a crime in itself, not a penalty enhancement for other offenses.11

Convictions also require defendants to register as a sex offender.

Legal References:

  1. California Criminal Jury Instructions CALCRIM 1001.

  2. California Criminal Jury Instructions CALCRIM 401.

  3. People v. Singleton, 196 Cal.App.3d 488 (Cal. App. 1987).

  4. People v. Bohmer, 46 Cal.App.3d 185 (Cal. App. 1975).

  5. People v. Booth, 48 Cal.App.4th 1247 (Cal. App. 1996).

  6. People v. Best, 143 Cal.App.3d 232 (Cal. App. 1983).

  7. People v. Barnett, 54 Cal.App.3d 1046 (Cal. App. 1976).

  8. People v. Champion, 891 P.2d 93 (Cal. 1995).

  9. California Criminal Jury Instructions CALCRIM 401.

  10. Same.

  11. People v. Best, Supra.

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