Penal Code § 264.1 PC – Gang Rape (Acting in Concert)

California Penal Code 264.1 PC defines the crime commonly referred to as “gang rape.” This is where two or more people act in concert (work together) to engage in non-consensual sexual intercourse with a victim.

The language of the code section states that:

264.1. (a) The provisions of Section 264 notwithstanding, when the defendant, voluntarily acting in concert with another person, by force or violence and against the will of the victim, committed an act described in Section 261 or 289, either personally or by aiding and abetting the other person, that fact shall be charged in the indictment or information and if found to be true by the jury, upon a jury trial, or if found to be true by the court, upon a court trial, or if admitted by the defendant, the defendant shall suffer confinement in the state prison for five, seven, or nine years.

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

Rape in concert under Penal Code 264.1 can happen in either of two 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 up together to commit rape.

These people include:

• the person actually raping someone else, and
• that person’s accomplices.

2. What does “aiding and abetting” mean?

“Aiding and abetting” in this context means helping someone commit 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 is a serious sex crime.  These offenses include:

• Rape (Penal Code 261 PC), or
• Forcible sexual penetration with a foreign object (Penal Code 289 PC).

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
• Three 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

5. Are there related offenses?

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

• Assault (Penal Code 240 PC)
• Battery (Penal Code 242 PC)
• Assault with intent to rape (Penal Code 220 PC)
• Oral Copulation (Penal Code 287 PC)
• Sexual Battery (Penal Code 243.4 PC)
• Lewd Acts with a Minor (Penal Code 288(a) PC)
• Statutory Rape (Penal Code 261.5 PC)
• Sodomy (Penal Code 286 PC)

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 defenses that criminal defense lawyers use 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 enough in the process to prevent the commission of the crime.¹⁰

Other potential defenses to rape in concert charges are:

• False accusations: Sometimes accusers levy false accusations after regretting a sexual act or wanting to get the accused in trouble.
• Consent: If the accuser in fact consented to the sex act freely and voluntarily, then no sexual assault occurred.
• No knowledge: If the defendant honestly did not know that rape was about to occur, then criminal charges cannot stand.
• Misidentification: It is not unusual for innocent people to be mistakenly picked up out of a lineup in bad lighting, especially by traumatized victims being pressured by police to pick someone.
• Mere Presence: People who are simply at the scene of a crime and did not do anything to cause the crime have not broken the law.
• Law enforcement misconduct: Examples are coercing a confession or conducting an illegal search.

Typical evidence in these cases includes eyewitness accounts, surveillance video, and medical records. And the defendant’s attorneys would do a thorough investigation in an attempt to impeach the accuser’s credibility and unearth any motivations to lie.

In any case, prosecutors have the burden to prove guilt beyond a reasonable doubt. If the D.A. fails to meet this burden, the charge should be dropped.

7. What are the penalties?

Rape in concert under California law is always a felony, counts as a “strike“, and requires defendants to register as a sex offender. The prison sentence for a rape in concert conviction depends on the age of the victim.

Victim age	“Rape in Concert” sentence
Adult over the age of 18	5, 7, or 9 years
Minor between 14 and 18	7, 9, or 11 years
Minor under the age of 14	10, 12, or 14 years

These punishments are in addition to the sentence for the underlying rape crime conviction. Penal Code 264.1 is a crime in itself, not a penalty enhancement for other offenses.¹¹

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