California’s rape laws: 261PC

In simple terms, rape is defined as committing sexual intercourse with someone who either did not, or cannot (for reasons of age, or mental or physical capacity) consent to the act.

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Even if you find it unimaginable to think of yourself as either a potential perpetrator or victim of rape, it is worthwhile to take some time to learn about this important law.

Rape is defined by California Penal Code section 261 as sexual intercourse accompanied by threat, force, or fear of bodily injury. Also, sexual intercourse against someone who is sleeping, unconscious, or has a mental illness by using threat or other false pretenses qualifies as rape.

Several situations can be classified as rape. Of primary importance is that the victim did not voluntarily consent to sexual intercourse.

Examples of rape include:

• The accused used threats, force, intimidation, or coercion against the victim that resulted in sexual intercourse.
• The defendant made fraudulent claims to coerce the victim into engaging in sexual intercourse, such as by pretending to be a police officer or other person in authority.
• The victim had some sort of physical or mental disability, was asleep or unconscious, or was intoxicated and this removed his or her ability to consent, and the defendant knew or should had reasonably known about the victim’s physical or mental state.

Another type of rape under this law is sometimes referred to as statutory rape, or more accurately, unlawful intercourse with a minor (261.5 PC). This occurs when an adult has sexual intercourse with a minor (anyone less than 18 years of age). Unlike rape of someone 18 or older, statutory rape does not require any force, threat, or coercion because the act of intercourse itself is a crime.

Elements of the crime of rape

In order to achieve a conviction for rape, the prosecutor must prove all of the following four elements:

1. Sexual intercourse occurred between the defendant and victim.
2. The defendant and the victim were not married to each other at the time.
3. The victim did not give consent.
4. The intercourse was accomplished with fear, force, or threats of bodily harm against the victim or someone else, and there was a strong likelihood that the defendant would carry out these threats.

Note: the prosecution is not required to prove that the victim resisted the defendant in order to secure a conviction of rape under 261 PC.

Criminal penalties for rape under 261 PC

In California, rape can be charged as a misdemeanor or felony, depending on the circumstances of the crime. Penalties for a conviction for rape include one or all of the following:

• A term of three, six, or eight years in state prison.
• A fine of up to $10,000.
• Summary or formal probation.
• A “strike” under California’s Three Strikes Law.

Anyone convicted of rape – either a misdemeanor or felony — is required to register for life as a sexual offender pursuant to the Sex Offender Registration Act (Megan’s Law), 290 PC. However, under some circumstances, a conviction for 261.5 PC may not require registration.

Additional sentencing enhancements may apply in cases where the defendant acted with someone else to commit the rape or used a weapon, for example.

Legal defenses against a charge of rape

A charge of rape is serious, and a conviction has ramifications which can follow the accused for life. Obtaining expert legal advice is extremely important. Only a qualified attorney can provide legal advice, including appropriate defense strategies. However, there are several common legal defenses to an allegation of rape:

• Actual consent (when applicable).
• The defendant believed that the victim consented.
• False or retaliatory accusations.
• Sexual contact occurred but was not actual intercourse.
• Insufficient evidence
• Mistaken identity