Rape

How Rape Is Defined Under California Law

California Penal Code Section 261 is the main statute defining and criminalizing rape in our state, though there are a number of other statutes that deal with specific types of rape. PC 261 defines rape as engaging in sexual intercourse with another person without that person's consent.

Lack of consent can mean that physical force or threats were used to coerce the victim into submission. The case of physical force being applied is the usual and most obvious means of committing rape, but rape by threat is more complex and diverse.

For example, a direct or clearly implied threat that causes a person to act in a way they would not otherwise is "duress." A threat to injure the victim or another person he/she cares about is a "menace." A threat must cause a "reasonable fear" in the victim or at least a "real fear" that the perpetrator "takes advantage of."

Lack of consent can also come in less ordinary forms, such as presenting sex as a "professional service" or "therapeutic treatment," having sex with someone too drunk or drugged up to know what he/she is doing, or taking advantage of someone with a mental or physical disability. It is also rape to have sex with someone who is asleep or by fraudulently convincing that person that you are his/her lawful spouse.

Also note that consent can be withdrawn, so that sex that begins as consensual can "become" rape at a later point. However, the person withdrawing consent must communicate they no longer desire the intercourse and attempt to stop it. They must do so in a way that would make a "reasonable person" understand their intention and then have the other person "forcibly continue" before it is rape.

Finally, although we will focus here on rape charged under PC 261, we should mention some of the other relevant California laws:

• Statutory Rape (PC 261.5). This is intercourse with a minor (under 18) regardless of consent.
• Spousal Rape (PC 262). Those who are married do not have license to force sex on their spouse, but rape of a spouse is charged under PC 262 instead of PC 261.
• Oral Copulation by Force (PC 266c)
• Forcible Penetration With a Foreign Object (PC 289)

Note that "date rape" is not a legal category and would be charged under PC 261 or another applicable statute.

Possible Penalties for Rape

PC 261, non-spousal rape, is a felony in California, and is punished very severely. Possible penalties include:

• 3 to 8 years in state prison; in certain types of cases, 1 year in county jail and formal probation can stand in place of the prison term. If "great bodily injury" was inflicted, 3 to 5 extra years in prison are added.
• A fine of up to $10,000.
• A "strike" on the defendant's criminal record under California's Three Strikes Law.

If the victim is a minor, punishments become more severe. Prison terms of 7 to 11 years apply to rapes of those under 18, as handled under PC 261 (versus handled as statutory rape, where consent allegedly existed but the age alone qualifies it as rape).

If a child under age 14 is raped and the rape is charged under PC 261, the punishment is 9 to 13 years in state prison.

Also, when a minor is the victim, the fine can be up to $25,000.

And lifetime registration as a sex offender will also be required of those convicted of rape, with failure to register or update information after a change of address being a crime in itself, addressed in PC 290.

However, do note that rape by means of fraud or threat of arrest/deportation will not result in sex offender registration even upon conviction. But those are the only two exceptions.

Any conviction of rape on your criminal record is a stigma that won't go away and that will affect your ability to find employment and live a "normal" life in your community. Thus, it is critical to fight a rape charge in every possible legal way and to rely on the expertise of an experienced rape crimes defense attorney.

What Must the Prosecution Prove?

To prove a defendant guilty of the crime of rape under PC 261, the prosecutor must demonstrate the following four elements of the crime beyond any reasonable doubt:

• Sexual intercourse, defined as "any penetration, however slight" did in fact take place between the defendant and the alleged victim.
• The two persons involved were not married at the time, for then it would be charged under PC 262 (spousal rape), a distinct crime.
• There was a lack of consent on the part of the victim, either before or after the sexual intercourse commenced. 
• The sex was accomplished by means of physical force, threat, or fraud.

In most instances, the prosecution's case will hinge on establishing the lack of consent. Note the following:

• Having a current or previous dating relationship or a previous marriage relationship with someone in no way automatically implies consent to sexual intercourse.
• Asking someone to wear a condom or use a contraceptive device does not automatically prove consent. However, such a request could show a reasonable belief of consent in the defendant, if not demonstrate consent in conjunction with other evidence.
• The prosecution must prove that the defendant was aware of the lack of consent or could reasonably have been expected to be aware of it.
• Both men and women can be convicted of rape. The fact that most rapes are committed by men against women in no way changes the possibility of the opposite occurring.
• Aiding and abetting a rape makes one a "principal actor" in the crime under California law. It means you can be convicted of the crime itself as if you had personally done the rape.
• It is not necessary the prosecution prove the victim put up "resistance" to the sex in order for it to count as rape. That used to be the law in California in earlier years, but the fact that different people react differently in such situations (such as "freezing" instead of fighting/screaming) led to the change of law on this point. However, lack of resistance may still be an element that could demonstrate a reasonable belief of consent on the part of the defendant.
• You cannot prove consent by showing evidence that the alleged victim had a promiscuous sexual history or reputation. This is called the "rape shield" law.

As you can see, there are a number of rules of evidence that favor the prosecution but also others that favor the defendant. And some of these rules are not what we might expect them to be. Thus, you cannot fight a rape charge by building your defense on what you assume the law should be. You need a good lawyer who knows the complex details of what the law actually says and how those laws typically play out in court.

Possible Defenses Against a Rape Charge

Many times, someone accused of rape may feel hopeless to defend him or her self in court. But at Leah Legal, we understand that there are a number of viable defense strategies to use to defeat these charges.

While the exact defense is determined by the facts of each particular case, here are some of the major types of defenses we use to win in court:

1. Consent Existed

This is the most commonly used defense against a rape charge in California. If the intercourse took place by mutual consent and both parties were adults, rape did not occur. This defense also will not hold if the defendant had a mental disability that prevented him/her from legally giving consent. But in most cases, consent is a pivotal element of the crime that must be established to gain a conviction.

If consent was later withdrawn and the defendant continued the sexual act, it would be rape, but only if the alleged victim clearly communicated their withdrawal of consent. A lack of such a communication can be a viable defense.

2. Mistake of Fact

It may also be that, though consent did not exist or though it was withdrawn, the defendant nevertheless had a reasonable belief to the contrary. If so, it was not rape. If the alleged victim sent "mixed messages" and never resisted or clearly communicated a desire to avoid or stop the intercourse, this defense can be used.

3. False Accusation

In many cases, rather than the rape allegation stemming from a misunderstanding about consent, it is simply a complete fabrication. It is very easy to file a rape charge in California; it requires very little evidence to get as far as the trial phase. Unfortunately, too many false accusations of rape are made out of revenge or spite. Different studies suggest between 10% and 50% of rape charges are simply false.

4. No Intercourse Occurred

In some cases, it may be that no intercourse (or oral copulation) occurred, making it, perhaps, sexual assault, but not rape. It could be that, whether or not consensual, physical and sexual touching took place but without actual penetration.

5. Mistaken Identity

When a rape is committed by a complete stranger who ambushes the victim at night and wears a mask or other disguise, it is very easy for a mistaken identity to occur, even when an eyewitness makes the identification. And a person's past criminal record can also influence who is accused of the rape, but this clearly does not prove guilt in a new, specific case.

6. Lack of Sufficient Evidence

In many cases, a rape victim will not seek immediate medical care or even let anyone know what happened for months or years. This can create a situation where all physical evidence is absent and the whole case moves based on testimony alone. It is certainly possible for testimonial evidence to be sufficient for a rape conviction, even years after the alleged fact, but in many cases, the evidence is simply too sparse and inconclusive.

Contact Us Today for Immediate Assistance

At Leah Legal, we have comprehensive knowledge of all California statutes relating to rape crime charges, and we also have well seasoned courtroom skills, being fully familiar with local L.A. Area court processes. 

If you have been accused of rape, do not assume that your case is indefensible. We have won many rape crime defense cases in the past. We know how to challenge the evidence, testimony, and argument of the prosecution and win the best possible outcome to your case.

For a free consultation regarding your criminal defense matter, call us anytime 24/7/365 at 818-484-1100.