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Penal Code 261 PC - Rape Laws in California

California Penal Code 261 PC defines the severe felony crime of rape. Under the law, it is considered rape when someone uses force, threats, or fraud to engage in non-consensual sexual intercourse with another person.

Penal Code 261 PC - Rape Laws in California

This can occur when someone is incapable of consenting to sexual intercourse because they are intoxicated, subjected to force, violence, or extreme coercion as a means of engaging in the act, incapable of consenting due to a mental disorder, or unconscious while the incident occurs.

PC 261(a) says, “rape is an act of sexual intercourse accomplished with a person not the perpetrator's spouse.” A felony rape conviction is punishable by up eight years in prison and a mandatory requirement to register as a sex offender for life.

You can only be guilty of rape if the other person does not consent. For consensual sex, someone has to understand what the act of sexual intercourse entails and has to agree on their own to engage in it with the other person voluntarily.

Notably, even when someone gives initial consent, they can change their mind during sexual intercourse. If they tell their partner they no longer want it to continue, and the other person does not acknowledge their request and forces them to continue, it is considered the crime of rape. Let's review this state law further below.

What's the Difference Between Rape and Consensual Sex?

This is usually where the battle lines are drawn in these sex crime cases where I'm defending people charged with the severe crime of forceable rape and facing many years in prison, lifetime registration, and a host of other bad things that can happen to them.

Difference Between Rape and Consensual Sex

The alleged victim will claim you forced them to have sex; in many cases, my clients say it was consensual.  Sometimes there is alcohol involved. Sometimes there are drugs involved, and sometimes everybody is stone-cold sober; one person is claiming some forced sexual activity, while the other person is saying no, they consented to it. 

So, we have to look at the prosecutors' evidence that it was forceable rape. They should have done what's called a SART exam. 

This is a sexual exam that a nurse usually does at a hospital, and they're looking to see if there is evidence consistent with somebody who was raped, such as the following:

  • Are there injuries to the person's vagina?
  • Are there marks on their body that they were forced or held down?

Talking to the police is never a good idea, and even talking to the alleged victim once you know there is a problem is usually not a good idea because in these forceable rape cases, Penal Code Section 261, the police are generally going to have the alleged victim call the suspected perpetrator and try to get them to admit it. 

When Does Sex with an Unconscious Person Become a Crime?

When people are asleep or incapacitated because they've taken drugs or alcohol, it's usually never a good idea to have sex with them. First, you want to make sure that they consent.

My clients often say this person consented. They wanted to have sex with me. They were kissing me and doing everything that made it clear they wanted to have sex.  

On the other hand, the other party is saying look; I was so drunk I barely remember what happened. I would have never had sex with that person; therefore, it was a crime.  They often can't even remember what happened, but they know they never gave the individual consent to have sex.

I often see these crimes being charged when somebody is on a first date with someone they met on the internet. They go out to a bar or somewhere, have too much to drink, and end up having sex with the person.

Further, they've never had sex with that person before, so that puts them in a bad position because now the person can say, look, I've never had sex with that person.  I never intended to have sex with that person, and they had sex against my will. 

I see pretext phone calls being used by the police after the fact where the person either sends a text and says, hey, I can't believe what you did to me last night.

They will also call them with the phone tape recording the call, and then the person is facing jail time or prison time, depending on the facts and circumstances of the case.  These cases are severe, so you want to get the best attorney possible.

What Does the Law Say? 

The felony crime of rape can occur in many ways and can be charged even if there is no accusation of using force.  

One of the most common forms of rape is by force or coercion. Penal Code 261(a)(2) PC defines forceful rape as sexual intercourse “against somebody's will by means of force, violence, duress, menace, or fear of immediate unlawful bodily injury on the person or another.”

California Penal Code 261 PC Rape Law

Subsection (a)(6) says rape by a threat includes threats of future harm if a reasonable possibility exists and the perpetrator will follow through on it.  

Subsection (a)(7) expands a rape by a threat to include threats made by use of “the authority of a public official to incarcerate, arrest, or deport the victim” if the victim believes the perpetrator is a public official.

Penal Code 261(a)(3) and (a)(4) include the mentally incapable form of the rape crime as persons with mental disorders and those intoxicated, unconscious, asleep, or otherwise unaware or incapable of resisting.

Penal Code 261(a)(5) PC defines rape as where the perpetrator induces the victim to believe that they are someone else the victim knows and to whom the victim would consent. The inducement could be “by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief.”

Penal Code 261(a)(4)(c) and (4)(d) expand rape not just to fraud as to the perpetrator's identity but also fraud as to the act that the perpetrator intends.

What Are the Related Crimes?

Several California offenses are related to Penal Code 261 PC rape, including the following:

  • Penal Code 261.5 PC - statutory rape,
  • Penal Code 261(a)(1) PC - rape of mentally disabled,
  • Penal Code 261(a)(3) PC - rape of one incapable of consent,
  • Penal Code 261(a)(5) PC - rape by fraud or artifice,
  • Penal Code 243.4 PC - sexual battery,
  • Penal Code 289 PC - penetration with a foreign object,
  • Penal Code 287 PC - oral copulation by force or fear,
  • Penal Code 288a PC - oral copulation with a minor,
  • Penal Code 220 PC - assault with intent to commit a felony,
  • Penal Code 286 PC – sodomy,
  • Penal Code 422 PC – criminal threats,
  • Penal Code 646.9 PC – stalking.

What Are the Penalties for PC 261?

Penal Code 264 PC imposes the felony penalties for the crime of rape to include the following:

  • three, six, or eight years in prison,
  • a fine of up to $10,000,
  • felony probation.

The penalties will increase to seven, nine, or eleven years in prison rape of a minor 14 or older. If the victim was under 14, the penalties are nine, eleven, or thirteen years in prison.  

Suppose the victim sustained a great bodily injury during the rape. In that case, the penalties will include an additional 3 to 5 years in prison.

Most PC 261 rape convictions will require mandatory sex offender registration as defined under California Penal Code 290 PC. It could also count as a strike under the three-strikes law.

What Are the Defenses for PC 261?

Sometimes we have a strategy where we're going to take the case to trial.  You're not guilty.  We're going to do our investigation.  We're going to file whatever motions are appropriate, and we're going to fight the case.

In order to prove the crime of rape, the prosecutors have to show that you actually raped the person against their will.  I do see a lot of different scenarios, especially coming out of dating in today's society where people drink too much, one thing leads to another, they have sex, and then the other party, for whatever reason, decides that it's a rape situation. 

So, we need to evaluate all of this evidence. We need to talk about what happened. Then, we can decide whether this will be a case where we fight it.

Defenses for Penal Code 261 PC Rape

We do the preliminary hearing, we file motions, we do a trial, or it's going to be a case where we put together a mitigation package and try to minimize the damage to you and your life. A California criminal defense lawyer can use several strategies to fight rape charges, which are discussed below.

Perhaps we can argue that the alleged victim gave consent to sexual intercourse. Maybe there is evidence that they were reasonably led to believe the sex was consensual. But, on the other hand, perhaps we can argue that no sexual intercourse occurred.

Perhaps we can argue that the allegations are false. Maybe the alleged victim was motivated by anger, jealousy, or an attempt to seek revenge.

We might be able to convince the prosecutor not to file formal criminal charges through a process called prefiling intervention (DA reject).  Perhaps we can negotiate to get the rape charges reduced or even dismissed.

If you were charged with PC 261 rape, contact our law firm by phone or through the contact form for a free case evaluation. The Hedding Law Firm is located in Los Angeles, California.

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