What is Considered “Rape” Under California Law?

California’s law on rape which is codified under penal code 261 defines rape as nonconsensual sexual intercourse accomplished by force, threat, or fear with a person who is not the spouse of the perpetrator.

The Legal Elements Of Rape

To prove that the defendant is guilty of “rape,” the prosecutor has to prove the following facts or elements under California Penal Code 261¹:

• You engaged in sexual intercourse with a woman²;
• The woman was not your wife at the time of the intercourse (if you were, it would be a separate crime known as “spousal rape”);
• The woman “did not consent” to the intercourse: AND
• The Defendant accomplished the intercourse BY

Force or Fear

Force³, violence, duress⁴, menace⁵, or fear⁶ of immediate and unlawful bodily injury to the woman or to someone else.

Future Threats of Bodily Harm

Threatening to retaliate in the future against the woman or someone else when there was a reasonable possibility that the defendant would carry out the threat. A threat to retaliate is a threat to kidnap, falsely imprison, or inflict extreme pain, serious bodily injury, or death.

Threat of Official Action

Threatening to use the authority of a public office to incarcerate, arrest, or deport someone. A public official is a person employed by federal, state, or local government who has authority to incarcerate, arrest, or deport. The woman must have reasonably believed that the defendant was a public official even if he was not⁷.

• She communicated through words or acts to the defendant that she no longer consented to the act of intercourse;
• A reasonable person would have understood that her words or acts expressed her lack if consent;  AND
• The defendant forcibly continued the act of intercourse despite her objection⁸.

Legal Defenses To Rape Charges

The most common defenses that a skilled criminal defense attorney can use to defend you from a rape charge are as follows:

Consent

If you can show that the alleged victim consented to sexual intercourse, then the act does not qualify as rape. 

Even if the accuser says she consented at first but then wanted to stop, unless she effectively communicated her desire to stop, you cannot be expected to understand that she wanted to stop the intercourse.

Reasonable Belief In Consent

Even if the alleged victim did not actually consent, but you had a reasonable belief that she did, it is not rape.  Reasnable belief in consent is a valid legal defense of rape if you actually and reasonably believed that the woman consented to the intercourse and actually and reasonably believed that she consented throughout the act of intercourse⁹. If the woman initially consents to sex but withdraws her consent than she must communicate through words or acts to the defendant that she withdraws consent in a manner a reasonable person would have understood.

False Accusations

Sometimes, rape is a false accusation that the alleged victim uses out of revenge, anger, or some other self-serving reason.  That is why it is very important to have a competent criminal defense attorney on your side who can conduct a preliminary investigation to determine whether something about the facts or the evidence does not add up.

Penalties, Punishment and Sentencing Guidelines

If you are convicted of “rape” pursuant to California Penal Code Section 261, you face the following penalties:

• A felony conviction
• Formal probation with a maximum sentence of 1 year in county jail OR
• Up to 3, 5, or 8 years in the state prison

Sentencing Enhancement

•  Victim sustained a great bodily injury¹⁰:
  • 3-5 additional years in the state prison
  • Up to $10,000 in fines¹¹. and
  • A possible “strike” on your criminal record pursuant to the California’s Three Strikes Law
• Victim is a minor:
  • If the victim is a minor over the age of 14 years old, the state prison term goes up to 7, 9, or 11 years¹².
  • If the victim is a minor under the age of 14 years old, the state prison term goes up to 9, 11, or 13 years in prison¹³.
• In addition to the penalties above, most rape convictions lead to the requirement that the offender register as “sex offender” pursuant to California Penal Code section 290.  Failure to register as a sex offender is a felony.

Civil Lawsuit

Victims may file civil lawsuits seeking damages in civil court for rape where there is a lower standard of proof. Damages recieved may include:

• Past and future medical expenses
• Past and future wage loss
• Loss of earning capacity
• Emotional trauma and distress
• Cost of psychological counseling
• Pain and suffering
• Diminished enjoyment of life
• Any permanent disability or disfigurement 
• Spousal claim for loss of consortium
• Punitive damages

Related Offenses & Enhancements

LESSER INCLUDED OFFENSES

Assault With Intent to Commit Rape: Similar to assault, “assault with intent to commit rape” pursuant to Pen. Code, section 220 is a lesser included offense in “rape,” because a defendant does not need to make physical contact with the victim/accuser to be convicted of assault with intent to commit rape.¹⁴  This is a specific intent crime, meaning that you committed assault with the specific intent to commit the act of rape.

Attempted Rape: Attempted rape pursuant to Penal Code sections 663 and 261 is a lesser included offense in “rape,” because it is an attempt to commit rape that does not rise to the actual offense of rape.  This is a specific intent crime, meaning that you had to have intent to commit the act of rape.

Battery: Pursuant to the Penal Code Section 242, a California “battery” is the unlawful application of force against another person which results in a harmful or offensive contact.  It is a lesser included offense in “rape,” because intercourse with a woman without her consent necessarily includes the act of battery.¹⁵

The following offenses are all sex crime related offenses:

• Indecent Exposure Under Penal Code 314
• Prostitution under Penal Code 647(b)
• Lewd Conduct Under Penal Code 647(a)

1. California Penal Code Section 261: California’s Penal Code Section 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. [↩]
2. Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis.  Ejaculation is not required.  Penetration Defined.  California Penal Code, § 263: The essential guilt of rape consists in the outrage to the person and feelings of the victim of the rape. Any sexual penetration, however slight, is sufficient to complete the crime.; People v. Karsai (1982) 131 Cal.App.3d 224, 233–234 [182 Cal.Rptr. 406], disapproved on other grounds by People v. Jones (1988) 46 Cal.3d 585, 600 [250 Cal.Rptr. 635, 758 P.2d 1165]. [↩]
3. Force Defined. People v. Griffın (2004) 33 Cal.4th 1015, 1023–1024 [16 Cal.Rptr.3d 891, 94 P.3d 1089] [↩]
4. Duress Defined. Pen. Code, § 261(b). [↩]
5. Menace Defined. Pen. Code, § 261(c). [↩]
6. Fear Defined. People v. Iniguez (1994) 7 Cal.4th 847, 856–857 [30 Cal.Rptr.2d 258, 872 P.2d 1183] [level of fear] [↩]
7. California Criminal Jury Instruction 1000 [↩]
8. Withdrawal of Consent. In re John Z. (2003) 29 Cal.4th 756, 760 [128 Cal.Rptr.2d 783, 60 P.3d 183] [↩]
9. Reasonable Belief in Consent: If there is “substantial evidence of equivocal conduct that would have led a defendant to reasonably and in good faith believe consent existed where it did not.” (See People v. Williams (1992) 4 Cal.4th 354]; People v. Mayberry (1975) 15 Cal.3d 143, 153–158 [125 Cal.Rptr. 745, 542 P.2d 1337]. [↩]
10. California Penal Code 12022.7 [↩]
11. California Penal Code 672 – Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed. [↩]
12. California Penal Code 264.1(c)(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. [↩]
13. California Penal Code 264.1(c)(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. [↩]
14. In re Jose M. (1994) 21 Cal.App.4th 1470, 1477 [27 Cal.Rptr.2d 55]; People v. Moran (1973) 33 Cal.App.3d 724, 730 [109 Cal.Rptr. 287][where forcible rape is charged]. [↩]
15. Penal Code, Section 242; People v. Guiterrez (1991) 232 Cal.App.3d 1624, 1636 [284 Cal.Rptr. 230], disapproved on other grounds in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3 [103 Cal.Rptr.2d 23, 15 P.3d 243]; but see People v. Marshall (1997) 15 Cal.4th 1, 38–39 [61 Cal.Rptr.2d 84, 931 P.2d 262] [battery not a lesser included of attempted rape]. [↩]