Posted on April 22, 2015

California P.C. § 261: Rape

In California, Rape is governed under Penal Code § 261. Rape accusations can carry devastating consequences even if charges are ultimately dropped against you. If convicted, consequently you should expect to serve time in California state prison, require to register as a sex offender for life, and be labeled as a “strike” offender under California’s Three Strike Laws.

A rape investigation usually begins with a complaining witness (known to law enforcement as the “victim”) who gives a statement to law enforcement. Typically, the incident is reported days, maybe even weeks after the incident. If the victim complains early on, law enforcement will conduct a rape examination otherwise known as a “Rape Kit.” The results of the examination could support the victim’s statements or if the victim waited too long, the results may be inconclusive or negative for the presence/evidence of rape.

Law enforcement will then speak with witnesses who may have scene or overheard the incident. Additionally, law enforcement will speak with anyone within your social circle to investigate whether their investigation conforms with any of your prior conduct. The reason is because most rape cases do not consist of supporting physical evidence. Instead, it’s built upon the victim’s own testimony or word. In other words, it’s a “he said she said” case against you. As you can see, sex crime accusations can devastate one’s life even if charges are never filed.

Los Angeles Sex Crimes Lawyer

Just because you have been arrested or accused of rape does not mean you’re guilty. Early intervention by Los Angeles Sex Crimes Attorney John Rogers is necessary to effectively defend against rape accusations. John Rogers is available 24 hours a day, 7 days a week. Call 877-888-9820 now!

Elements of the Crime

According to CALCRIM 1000, in order for someone to be found guilty of rape, the prosecutor must prove each element beyond a reasonable doubt:

  1. Defendant had sexual intercourse with a woman
  2. Defendant was not married to the woman at the time of the act
  3. The woman did not consent to intercourse
  4. Defendant accomplished the intercourse by duress, force, fear, threats, violence

CALCRIM 1000 further provides clarification for various terms described above. For instance, consent must be “freely and voluntarily and know the nature of the act.” Additionally, although a woman may initially consent, she may revoke consent and consequently the act turns into rape if:

  1. She communicated to the defendant that she objected and attempt to stop
  2. She communicated her objection by words or acts that the defendant knew or should have known
  3. Defendant forcibly continued despite her objection

What are the Legal Defenses to Rape?

  • Consent: If one reasonably and actually believes that a woman consented for the act of intercourse, then one is not guilty of rape.
  • Misidentification: Eyewitness identification is a growing concerning and often times witnesses or alleged victims misidentify the perpetrator. Factors which play an important role on a witness misidentification include cross racial identification, poor lighting, or the trauma of the event itself. Additionally, police misconduct is frequent when police officers unduly suggest someone to the alleged victim prior to making the identification in a photo or in person line up.
  • False Accusation: Unfortunately, individuals accused of rape can be victims of fabrications on part of the complaining witness. The reason for false accusations is limitless.
  • No Penetration: If there was no penial penetration, then one is not guilty of rape.

What is the Punishment for Rape?

The punishment for rape can depending on numerous factors. Generally, one faces up to 8 years in California state prison. If the use of a weapon or threats were used then one can face additional time up to 13 years in California state prison. Additional years may be imposed if one has been convicted of a prior strike under California’s Three Strike Laws. In addition to spending time in custody, one must register as a sexually violent predator for the rest of their life. Furthermore, one is ineligible for any post-conviction relief via expungement, certificate of rehabilitation, and governor pardon.

Los Angeles Criminal Defense Investigation

All rape accusations requires a full defense investigation into the prosecutor’s evidence. The Law Offices of John D. Rogers will explore and can employ defense investigators to examine the evidence, question witnesses, and investigate other witnesses the police missed or failed to question completely. Often times, law enforcement conduct a poor investigation leaving behind critical exculpatory evidence. Furthermore, we have access to a number of defense experts to testify on behalf of our clients. Experts include:

  • DNA Experts / Rape Kit Experts
  • Eye-witness / Memory Experts
  • Crime Scene Reconstructionist
  • Cell Phone & GPS Tracking
  • Psychiatrist & Psychologists

The Law Offices of John D. Rogers additionally conducts a full and extensive investigation on the following:

  • Conduct criminal background checks on all the prosecutor’s witnesses
  • Locate and obtained video surveillance from local businesses in the area of the incident or prior to the incident
  • Question the prosecutor’s witnesses because law enforcement likely missed critical evidence that can be useful in your defense
  • Obtain the complaints of the police officers involved if misconduct is shown
  • Obtain alibi evidence to prove your innocence
  • Gain cellular phone tracking evidence to prove you were not in the area at the time the crime occurred

Do Not Talk to Police Officers

Often times, police officers attempt to question a suspect in order to gaining incriminating statements to build a case against them. Usually the evidence prior to questioning is weak which is why they attempt to gain additional evidence by questioning. If police officers or a detective is reaching out to you to give a statement, inform them that you will not make a statement without an attorney present. Thereafter, contact a Los Angeles Sex Crimes Attorney John Rogers immediately.

What are Examples of Rape?

Dan met Beth at a college party in Los Angeles. Both were intoxicated and decided to engage in intercourse. Beth went back to Dan’s house and both engaged in intercourse together. The next morning Beth woke up and was embarrassed. A few days later, Beth filed a police report alleging Dan raped her. Dan was arrested and charged with one count of rape. In this case, Dan is not guilty of rape because intercourse with Beth was consensual. Additionally, Beth was motivated to file a report because she was embarrassed and not because Dan forced intercourse.

Dan broke into Sara’s Los Angeles apartment and pinned her to her bed. He immediately pulled off her clothes and forcibly began engaging in oral sex with her. Sara begged Dan to stop but he continued. Afterwards, Dan left and Sara immediately called the police. In this case, Dan would not be guilty of rape because there was no penial penetration, instead the act was strictly oral. However, Dan may be charged with other acts such as sexual battery.

Dan was in a child custody battle with his ex-wife in Los Angeles. His ex-wife invited him over to discuss the court case. After hours of discussing the custody case, both were unable to come to a resolution and Dan left. The next day, Dan’s ex-wife filed a police report accusing him of rape. Dan was arrested and charged with forcible rape. In this case, Dan is not guilty of rape because he was falsely accused by his ex-wife with motivations of gaining full custody of the children while he battles a criminal case.

Related Offenses

Contact Us for a Free Consultation

If you have been accused, arrested, or under investigation for rape, contact Los Angeles Sex Crimes Attorney John Rogers at the Law Offices of John D. Rogers located at 1801 Century Park East, 24th Floor, Los Angeles, CA 90067. Call 877-888-9820 now for a free confidential consultation concerning your rights and defenses.

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