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Rape--PC 261

Rape, or sexual assault, is an emotionally devastating experience for any woman, though men can be the subject of rape as well. Under California law, a rape is defined as unwanted sexual intercourse that is done without the victim’s consent and by either force, fraud, or threat. Though we generally associate rape with physical violence, a rape can be accomplished by having intercourse with an unconscious person or by a therapist who convinces a patient that sex is integral to the therapy.

The crime of rape is embodied in PC 261:

(a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:
(1) Where a person 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.
(2) Where 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) Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused.
(4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, "unconscious of the nature of the act" means incapable of resisting because the victim meets any one of the following conditions:
(A) Was unconscious or asleep.
(B) Was not aware, knowing, perceiving, or cognizant that the act occurred.
(C) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraud in fact.
(D) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose.
(5) Where a person submits under the belief that the person committing the act is someone known to the victim other than the accused, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief.
(6) Where the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph, "threatening to retaliate" means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death.
(7) Where 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.
(b) As used in this section, "duress" means a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in appraising the existence of duress.
(c) As used in this section, "menace" means any threat, declaration, or act which shows an intention to inflict an injury upon another.

Elements of Rape

As indicated, rape is sexual intercourse without that person’s consent or against the person’s will. To be found guilty of rape under California Penal Code 261, the rape must have been accomplished by:

  • Physical force
  • Physical violence to the victim or to another
  • A threat of physical violence
  • A threat of retaliation
  • Duress
  • Fraud

Also, the victim must not be someone to whom you are married and who did not give consent. Spousal rape is a separate crime.

What Constitutes Sexual Intercourse?

Any penetration at all, regardless of how slight or seemingly “harmless” it is, is enough to satisfy this element of rape.

What Constitutes Consent?

Legally, consent is an exercise of your own free will. You must agree to the act voluntarily and willingly and with knowledge of the nature of the act. You cannot argue that the victim consented because you once dated the person or were married to them.

A gray area is when the victim asks that a condom or other birth control measure be used and the offender misconstrues the request to be consent to sex, regardless if a condom or birth control is used. Other facts need to be considered under these circumstances.

Further, a person lacks consent to having sex if he or she is unconscious or too impaired to make a rational decision. This includes persons with mental disabilities. These situations occur when the victim is given a date rape pill or is under the influence of alcohol or drugs and is too impaired to have given consent.

Also, once consent is given, it can be withdrawn either before or during the sexual act. Once consent is withdrawn and the victim tries to stop the sexual act, the offender must immediately cease. The withdrawn consent must be clear and unequivocal so that a reasonable person would understand that there is no longer consent to the sexual act. If the offender does ignore the withdrawn consent, rape has probably occurred.

To prove lack of consent, the prosecution need not show that the victim physically resisted, though the lack of resistance could be considered by a jury in determining if the defendant was under a reasonable belief, even if false, that the victim was continuing to consent.

Defenses to Rape

  • Consent

The most common defense used is that the victim willingly consented to sexual intercourse. If the victim alleges she or he withdrew consent at some point, it must have been communicated clearly and effectively. Unfortunately, there are few witnesses to most rape cases. Most defendants contend that they reasonably believed consent had been given and was not withdrawn at any time.

  • Lack of evidence

If there are no witnesses and the parties had some proven past familiarity with each other, a prosecutor may not have much evidence other than conflicting accounts. A victim who waits days or longer before reporting the rape or displays no signs of violence or emotional trauma may not appear credible.

  • Mistaken identity

In some cases, a victim who was impaired or who was raped in a dimly lit area or where the rapist wore a mask can have difficulty identifying the perpetrator. Emotions can make a victim susceptible to the suggestions of law enforcement who may believe they arrested or detained the actual offender.

In gang rape situations, the victim may not be able to distinguish among the persons who committed rape, or a defendant may have been seen earlier but left the scene before the crime was committed.

Penalties for Rape

The penalties for rape can be very severe, though in some cases where there is no violence or force, the defendant can receive formal (supervised) probation with participation in a court-approved program usually required. In these situations, the court may also impose up to one year in jail.

Otherwise, you face the following:

  • 3, 6 or 8 years in state prison
  • Formal probation
  • An additional 3 to 5 years if the victim suffered a great bodily injury
  • A fine of up to $10,000
  • A potential strike on your record

If the victim was a minor, or under 18, you face either 7, 9 or 11 years in state prison. If the victim was under 14, you could be sentenced to 9, 11 or 13 years.

Many rape offenders must also register as a sex offender for the remainder of their lives. This circumstance can have devastating consequences and present substantial obstacles regarding employment, housing, travel and receiving governmental benefits.

Related Offenses

There are a number of sexual assault crimes related to rape:

  • Spousal rape

As it implies, the victim is a spouse. All other elements of the crime of rape are similar.

  • Oral copulation by force

The elements of this offense are the same as for rape except that the sexual act is oral copulation.

  • Sexual battery

There is no requirement of penetration for this crime. Any touching of the victim’s intimate body parts, even if clothing is being worn, without consent or against the victim’s will, for sexual arousal, gratification or abuse, is sexual battery. It can be charged as either a misdemeanor or felony.

  • Forcible Penetration with a foreign object

Penetration is an element of this crime except that it is done by an object including a finger or dildo. The penalties are similar to those for rape.

Retain a California Criminal Defense Attorney

A rape conviction can have lifelong consequences. There are defenses available and a seasoned California criminal defense attorney can conduct a thorough investigation and present an effective defense in many cases. Contact an attorney promptly if you face rape or other sex related crimes.