California “Rape in Concert” Law – Penal Code 264.1 PC

In California, rape in concert with another is charged under penal code 264.1 pc [1] making it a crime to either forcible rape another person while acting in concert with another, or aiding and abetting the commission of a forcible rape. The charge requires the prosecution to prove that the purported victim was forcibly raped. Thereafter, your culpability must be proven regarding whether you committed the rape or aided and abetted the rape. Characterized as a sex crime, rape in concert carries significant penalties in the event you’re convicted. Aside from facing a lengthy prison sentence, you could be ordered to register as a sex offender and have a violent strike on your record for life.

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Table of Contents

Elements of the Crime

In order to prove you are guilty of PC 264.1, the government has the burden of proving each of the following elements beyond a reasonable doubt:

You personally committed forcible rape and voluntarily acted with someone else who aided and abetted its commission.

You voluntarily aided and abetted someone else who personally committed forcible rape.

Defending PC 264.1 Charges

Consent

The alleged victim must give freely and voluntary consent prior to intercourse. A reasonable mistaken belief on part of the accused may suffice under this defense. Consent however is a complicate issue raising several factual circumstances and reasonable interpretations.

Knowledge

In the event the government alleges you aided and abetted the forcible rape with another, the government must prove you had knowledge of what was to occur. Moreover, there could be instances where your acts would not amount to knowing what another person would do. However, the government does not need to prove that you were present during the act[2], but only that you assisted, enticed, or worked with another to carry out the forcible rape.

Misidentification

Eyewitness identification is a growing concern because witnesses and victims misidentify perpetrators. Factors which play an important role on a witness misidentification include cross-racial identification, police suggestibility, poor lighting, or the trauma of the event itself.

Mere Presence

Mere presence at the scene of the crime and intimate knowledge of the offenses simply make a person an eyewitness and do not, without more, permit a conviction of the person as an aider and abettor of the crime. This means that if you were merely present during the incident, without anything more, then you cannot be convicted of this crime – i.e., mere presence alone is not enough.

False Allegation

Unfortunately, individuals accused of rape can be victims of fabrications on part of the complaining witness. The reason for false accusations is limitless. Common examples include embarrassment, attention, revenge, or financial motive. It is imperative that all forms of communication be preserved for investigation – e.g., e-mails, text message, social media conversations, etc.

Punishment for PC 264.1 in California

Victim 18 or Over: If by personally or aiding and abetting another person to commit forcible rape, a conviction requires a state prison sentence of 5, 7, or 9 years.

Minor 14 or Older: If the purported victim is of age 14 or older at the time of the act, then you must face a state prison sentence of 7, 9, or 11 years.[3]

Minor Under 14: If the purported victim is under the age of 14, then you must be punished in the state prison for 10, 12, or 14 years.[4]

Contact Us to Schedule a Free Consultation

If you have been arrested, charged, or are under investigation for PC 264.1, then contact the Law Offices of John D. Rogers to schedule a free consultation with an experienced Newport Beach sex crimes attorney. It could be devastating if you speak with investigators without the presence of a lawyer who will defend your rights and ensure you do not make any incriminating admissions. Retaining counsel at the earliest opportunity can make the difference of serving time in prison or having the case rejected from prosecution altogether.

Related Offenses

Footnotes:

[1] Penal Code 264.1(a) “The provisions of Section 264 notwithstanding, in any case in which 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, 262, 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.”

[2] See People v. Lopez (1981) 116 Cal.App.3d 882, 887–888; People v. Barnett (1976) 54 Cal.App.3d 1046, 1049 [oral copulation in concert although not in room when act took place]; People v. Champion (1995) 9 Cal.4th 879, 933 [rape in concert by holding victim’s family at gun point in another room].) However, the Supreme Court has not resolved whether a person acts in concert when his accomplice assists in the commission of the crime, but is not present at the general scene (for example, when the accomplice provides the rapist with information about the victim, or pays the rapist to commit the act). (People v. Champion (1995) 9 Cal.4th 879, 933, fn. 22.)

[3] See Penal Code 264.1(b)(2) “If the victim of an offense described in subdivision (a) is a minor who is 14 years of age or older, the defendant shall be punished by imprisonment in the state prison for 7, 9, or 11 years.”

[4] See Penal Code 264.1(b)(1) “If the victim of an offense described in subdivision (a) is a child who is under 14 years of age, the defendant shall be punished by imprisonment in the state prison for 10, 12, or 14 years.”