4 Defenses to California Rape Charges – Penal Code 261 PC

August 4, 2019

Rape is charged under penal code 261 pc making it unlawful to have sexual intercourse with another without their consent. California has several statutes defining how the act was carried out – e.g., force or fear, rape in concert, fraud, and mental incapacity. This article will address four (4) common defenses to rape. If you’re under investigation, then contact our office today to schedule a free case evaluation with an experienced Orange County sex crimes attorney.


Defenses to California Rape Charges – PC 261

Mistaken Identity

The innocence project has reported that eyewitness identification is the leading factor in a wrongful conviction, playing a role in more than 70% of convictions overturned through DNA testing. Eyewitness identification experts agree that a substantial number of factors play a role leading to misidentification, including poor lighting, cross-racial identification, highlight suggestive lineups, and contaminated memory recollection. Alarmingly, California does not have a procedure in place to ensure the accuracy of a witness, and oftentimes, law enforcement does not document a witness’s hesitation or their study time prior to identifying a defendant.

False Accusation

False accusations are alarmingly common. Purported victims may include former spouses, dating partners, or stepchildren you raised. Accusers attempt to leverage and manipulate the criminal justice system against a defendant to obtain a successful result in perhaps child custody proceedings, business disputes, alimony, or seek revenge after the defendant had an affair. Additionally, it is not uncommon for accusers to claim rape in an effort to avoid telling their partners they cheated on them.


An accuser can give legal consent for sexual intercourse so long as it was freely and voluntarily given. Consent is an affirmative defense because it negates that any force or fear was used to carry out the act. Ordinarily, obtaining text message history, phone call records, or social media messaging is critical to putting forth a consent defense.


Aligned with a false accusation claim, a defendant can claim that they could not have been the perpetrator if they can establish they were somewhere else at the time – i.e., alibi[1]. However, proving a “specific date” is not required from the prosecution. The prosecution need only establish a reasonable time frame of when the act occurred – e.g., “sometime in February of last year.”

If an accuser gives a detailed account and recalls the act occurred on a specific date – e.g., Christmas morning – then putting forth an alibi defense may be necessary. Placing you at another location can be established by eyewitnesses, GPS from your mobile device, social media activity, or credit card transactions.

Contact Us to Schedule a Free Consultation

When accused of a sex crime, there is no question that retaining an experienced Orange County criminal defense lawyer is critical to defending the charges against you. Rape under PC 261 carries significant and life-changing consequences. Contact the Law Offices of John D. Rogers today to schedule a free confidential consultation concerning your rights and defenses. Early intervention could mean the difference between having to spend time in state prison or having the case dropped altogether.

Related Offenses


[1] CALCRIM No. 3400 allows jurors to find you not guilty if there is “reasonable doubt about whether the defendant was present when the crime was committed…”

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