California Rape Laws – Penal Code 261 PC

In California, rape is charged under Penal Code 261 pc making it unlawful for someone to have intercourse with another without consent. Consent must be knowingly and voluntarily given but can be revoked at any time before or during intercourse.

Rape can be charged in any of the following circumstances:

  • Your accuser does not give consent or revokes consent.
  • The alleged victim lacks the mental capacity to consent or is incapable of consenting.[1]
  • Force, threat, duress, menace, or fear of immediate and unlawful bodily injury.[2]
  • When the victim is prevented from resisting by any intoxicating or anesthetic substance, or controlled substance, and this condition was known, or reasonably should have been known by the accused.[3]
  • Your accuser submitted to intercourse based on the color of authority.[4]

The punishment for rape carries up to 8 years in state prison. A conviction will also require registration as a sex offender for life.

What are the Elements of Rape?

In general terms, in order for someone to be found guilty of PC 261, the prosecutor must prove each element beyond a reasonable doubt:

  1. You had sexual intercourse with a woman;
  2. The woman did not consent;
  3. Intercourse was accomplished by duress, force, fear, threats, or violence.[5]

Defenses to Rape – PC 261

Consent

The alleged victim must give consent freely and voluntarily prior to intercourse. A reasonable mistaken belief on part of the accused may be a valid defense.

Misidentification

Eyewitness identification is a growing concern because witnesses and victims misidentify perpetrators. Leading causes of misidentification include cross-racial identification, poor lighting, police suggestion, or the trauma of the event itself.

False Accusation

Unfortunately, individuals accused of rape can be victims of fabrications on part of the complaining witness. There are limitless reasons why someone would falsify a rape allegation. For instance, embarrassment, attention, revenge, or financial motive.

What is the Punishment for Rape? 

Penal Code 261 is punishable in the state prison for up to 8 years. Rape is a violent felony making it applicable to California’s Three Strikes law.

If the alleged victim suffers great bodily injury, you face an additional 3 years in prison.

A defendant may be sentenced to up to 11 years if the victim is under 18 years old, and up to 13 years if the victim is under the age of 14.

Furthermore, a conviction for rape would trigger a lifetime requirement to register as a sex offender.

How is Consent Revoked?

A person must act freely and voluntarily and know the nature of the act when giving consent. Someone who initially consents to intercourse can change his or her mind during the act. Consent may be revoked by:

  1. Communicating through words or acts to the defendant that he or she no longer consented to the act of intercourse;
  2. A reasonable person would have understood that his or her words or acts expressed his or her lack of consent;
  3. The perpetrator forcibly continued the act of intercourse despite objection.

What are Examples of Rape?

  • Mike was having intercourse with Sara. Since Sara had too much to drink, she passed out. Mike continued intercourse with her. In this case, Mike would be charged with rape because Sara was no longer capable of resisting.
  • Darla visited her psychiatrist. The two engaged in intercourse after her doctor convinced her that intercourse would cure her illness. Here, Darla’s psychiatrist would be charged with rape by fraud.

Contact Us to Schedule a Free Consultation

Rape is a very serious allegation that can result in a lengthy prison sentence. Consequently, it is paramount that you consult with an experienced Orange County sex crimes attorney if you or a loved one have been accused of this offense. Attorney John D. Rogers is a board-certified criminal law specialist. This distinction is held only by a small group of criminal defense lawyers in California.

For more information about PC 261, and to schedule your risk-free consultation, contact Orange County criminal defense attorney John D. Rogers at the Law Offices of John D. Rogers today.

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Legal Citations

[1] Pen. Code, § 261(a)(1) (“If a person who is not the spouse of the person committing the act is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act. Notwithstanding the existence of a conservatorship pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving consent. This paragraph does not preclude the prosecution of a spouse committing the act from being prosecuted under any other paragraph of this subdivision or any other law.”)

[2] Pen. Code, § 261(a)(2) (“If it is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.”)

[3] Pen. Code, § 261(a)(3) (“If a person is prevented from resisting by an intoxicating or anesthetic substance, or a controlled substance, and this condition was known, or reasonably should have been known by the accused.”)

[4] Pen. Code, § 261(a)(7) (“If the act is accomplished against the victim’s will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official. As used in this paragraph, “public official” means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official.”)

[5] See CALCRIM No. 1000.

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