According to California Penal Code 261, rape occurs when you perform non-consensual sexual acts with someone else using violence, force, fraud, threats, or all these vices. In California, rape is a felony offense. It could attract harsh penalties, including serving many years in prison or fines. Your prison sentence is harsher if the victim sustains severe injuries.

Given the severe possible penalties, you want to hire a defense attorney who has experience in defending people accused of rape. At Monterey Criminal Attorney, we are ready to help you build strong defenses and fight charges leveled against you. Contact us today so that we can review and start investigating your case.

What Constitues Rape Per Penal Code 261?

Rape involves non-consensual sexual intercourse achieved through force, threats, or fraud. Consent must be given freely, without coercion or manipulation. To secure your conviction for rape, the prosecutor must establish the following key elements beyond a reasonable doubt:

  • Sexual intercourse occurred, including any penetration, no matter how slight, of the anus or vagina by the penis.

  • The victim did not consent to the consensual act.

  • You accomplished the act against the will of the victim via menace, duress, force, violence, or fear of unlawful and immediate bodily injury to the victim or their loved ones.

  • You knew that the victim did not consent to the sexual activity.

Examples of Acts that Constitute Rape Crime

Here are some examples of acts that constitute Penal Code 261 violations:

  • Having sex with someone asleep or unconscious. For example, John has sexual intercourse with Jane, who is unconscious due to some medication she has been taking. Here, John is guilty of rape because Jane cannot give consent.

  • Using a weapon to coerce or threaten to harm your victim physically if they do not engage in sensual acts with you.

  • Having sex with someone who is too intoxicated or under the influence of drugs to consent.

  • Obtaining consent to engage in sexual acts through deception. For example, Joe, a medical provider, convinces Faith, a client at his hospital, that they should engage in sensual acts as part of her medical procedure. Here, Joe is guilty of rape under California Law.

Definition of Terms

Here is a look at the key elements of rape offense.

Sexual Consent

Under California law, consent is the voluntary, affirmative agreement to engage in a sexual activity. Consent is not defined by the absence of a ‘no’ but by a ‘yes’ communicated clearly. Consent must be given freely, without coercion, force, threats, or deception.

Consent is not a one-time answer approval; it must be present at every stage of the sexual encounter. So, even if consent was given initially, it can be withdrawn at any point. The absence of resistance does not imply consent. Also, previous or current relationships do not automatically imply consent to sexual activity.

  • Withdrawn Consent

A person can withdraw consent during a sexual encounter. If a person initially consents to sexual activity but then changes their mind and communicates this change through words or actions, the activity must stop immediately. Continuing the sensual act after consent has been withdrawn is considered rape.

For example, Ann gives consent to her boyfriend, Chris, to engage in sexual acts with her. But she changes her mind and communicates that she is no longer interested. Chris, as a reasonable person, would have stopped the act. If Chris continues having sex, he would face rape charges.

Violence or Force

Violence or force is the use of your physical power or strength to compel your victim into engaging in sexual activity against their will. Violence in rape cases includes actions that overcome your victim's resistance. This is achieved through restraining your victim by physically hitting or slapping them.

Force also involves threats of harm, which instills fear in your victim. This makes them comply out of fear for their safety. Even if the victim does not sustain any physical injuries, the presence of fear induced by your threats or aggressive behavior demonstrates that you engaged in non-consensual sexual activities.

Sexual Intercourse

Per Penal Code 261, sexual intercourse is any penetration, however slight, of the vagina or anus by the penis. You are guilty of rape even if you did not ejaculate. Also, the duration in which you penetrated your victim does not determine whether you are guilty or not.

California Rape Shield Law

Under California's Rape Shield Law, there is a limitation that prevents you from providing evidence of the victim's past sexual conduct. This law protects the victim's privacy and ensures that the focus remains on the alleged incident rather than on the victim’s sexual history.

This means that you cannot use, as evidence of consent, the fact that your victim has engaged in sensual acts with many people in the past to defend yourself in court.

People Who Cannot Give Consent to Having Sexual Intercourse

Under California Penal Code 261, certain people are legally unable to consent to intercourse. These include the following:

  • Minors or individuals under 18. Engaging in sexual intercourse with a minor, regardless of whether they gave consent or not, is a crime and could have you face statutory rape charges.

  • People who are mentally handicapped. If a person has a mental disorder or developmental disability that prevents them from understanding the nature of the sexual act, they cannot legally give consent.

  • Intoxicated individuals. A person who is under the influence of drugs or alcohol to the extent that they cannot make informed, rational decisions cannot give consent to engaging in sexual activities.

  • Unconscious individuals. If someone is unconscious or asleep, they cannot provide consent. Any sexual activity with an unconscious person is considered rape under Penal Code 261.

To whom Do Penal Code 261 Violation Laws apply?

People assume that only men can be charged with rape. However, Penal Code 261 applies to anyone who engages in non-consensual sexual intercourse, regardless of their gender, past relationship with the victim, or an individual's role in the incident. They include the following:

  • Perpetrators – If you force someone into engaging in sexual intercourse using force, violence, or threats, you could face rape charges under Penal Code 261.

  • Victims – PC 261 protects anyone subjected to non-consensual intercourse. This includes individuals who are unconscious, intoxicated, or minors who are unable to give consent during the sexual activity.

  • Those who aided the perpetrator – You could face charges under PC 261 even if you did not necessarily engage in sensual acts but enabled the perpetrator to engage in non-consensual sexual activities by making the victim drink so much alcohol that they become too intoxicated to be aware of the nature of the activity they are being subjected to.

Penalties and Sentencing For Penal Code 261 Violation

Under California PC 261, rape is classified as a felony. Therefore, a conviction could see you serve a prison term of up to 3,6, or 8 years and be subject to fines of up to $10,000.

The difference in the sentencing is due to various factors, such as the nature of the crime, the degree of injuries sustained by the victim, or the age of the one subjected to the non-consensual sexual act. The judge can sentence you to serve an additional 3 to 5 years if your victim sustained a significant degree of injuries during the non-consensual act.

Penalties for Rape Under PC 261 Depending on the Age of the Victim

You can serve different felony sentences if found guilty of engaging in non-consensual activities. This depends on how old your victim was at the time the illegal sexual act occurred. These penalties include the following:

  • If the victim is 18 or older, you could be sentenced to serve up to 3, 6, or 8 years in prison. You will also be required to register as a sex offender for up to twenty years. However, this is dependent on the individual case.

  • If the victim is 14 to 17 years old, you can serve up to 7, 9, or 11 years in prison. For this category, however, you face a lifetime registration as a sex offender.

  • If your victim is under 14, you could serve up to 9,11, or 13 years in prison and be subject to a lifetime registration as a sex offender.

Felony Probation

The court may impose probation in lieu of your prison sentence. However, this is only possible if you did not use violence or force and if your victim did not sustain any great bodily injuries during the non-consensual act.

Therefore, if the victim suffered significant injuries and you used violence or force, the court will not sentence you to serve probation time.

California’s Three Strikes Law

The California Three Strikes Law was established in 1994 to curb repeat offenses, especially serious and violent felonies. Under California Penal Code Sections 667 and 1170.12, when you are convicted of a serious or violent felony for the first time, it is referred to as a strike.

Rape under California law is classified as a violent felony. If convicted, you could be sentenced to 3,6,8 years in prison if this is your first time being convicted of a felony. This conviction is called your first strike.

If you commit another violent felony after serving your sentence, you will serve double the amount of prison time for this new crime, per the Three Strikes Law.

For example, Mark, who has served a prison sentence for raping his colleague and was released. He has been convicted of first-degree robbery as a second violent felony. The standard sentence for first-degree robbery is 3 to 9 years in prison. However, due to his prior rape conviction, his sentence is doubled to 18 years. This second conviction is considered his second strike.

If Mark is convicted of yet another violent felony, the Three Strikes Law requires that he must be sentenced to serve twenty-five years to life in prison, regardless of the usual sentencing guidelines for the third felony.

The Requirement to Register as a Sex Offender After a PC 261 Violation

If convicted of rape, you are required to register as a sex offender for life. You will have to give your personal information to a local law enforcer, including your name, photograph, and details of your conviction. This information is recorded in a public registry, meaning anybody can access it. You must also update your information annually and each time you move from one place to another.

This sex offender registration requirement can affect your life as it affects where you can stay or work. You could miss a job or housing opportunity because these records can be seen by your future employer or property owners, thereby influencing their judgment.

Deportation as an Immigrant

If you are not a U.S. citizen, being found guilty of rape can lead to deportation. Rape is categorized as an aggravated felony and a crime of moral turpitude, both of which are grounds for your removal from the country.

Also, a conviction for rape as an immigrant could render you inadmissible. This means you could be denied entry if you travel abroad, or your visa application or adjustment of status to a lawful permanent resident could be denied.

Lawsuits Brought by Rape Crime Victims in Court

In addition to rape charges, you could also be subject to a civil lawsuit brought by your victim or their family members. Civil lawsuits for rape are separate from criminal proceedings and focus on compensating the victim for the harm suffered.

In a civil lawsuit, your victim may seek compensation for the following damages they could have accrued:

  • Medical expenses.

  • Therapy costs.

  • Lost wages.

  • Trauma.

  • Insomnia.

  • Physical pain and suffering.

The victim’s relatives could also file a lawsuit against you if:

  • The sexual assault act caused the victim's death.

  • They were witnesses to the non-consensual act you engaged in with the victim, leading to them being traumatized or suffering emotional distress.

  • The rape crime has affected the victim’s marriage or close relationships.

You could also face a lawsuit even if you were not convicted or charged for engaging in a non-consensual act.

Legal Defense to Rape Charges in California

Once arraigned in court, you want to seek the services of an experienced attorney who will help you build solid defenses that could either help prove that you are innocent, reduce your sentence, or have the charges dismissed.

Some of the common defenses to rape charges include the following:

The Alleged Victim Consented to the Sensual Act

You could have the rape charges against you dismissed if you can prove that the alleged victim consented to engage in sexual intercourse with you. Your lawyer could help you present the following evidence: text messages before and after the incident, witness testimony, or any actions by the alleged victim that led you to believe they had consented.

The alleged victim must have given an affirmative, conscious, and voluntary agreement action to engage in sexual activity for the court to admit your claim of consent as plausible.

No Sensual Act Took Place

Another strong defense is to argue that no sexual activity occurred. You could prove that you are innocent by providing evidence such as an alibi who can vouch for you, witness statements, or physical evidence that challenges the prosecution's statement.

Rape victims must undergo a medical examination immediately after the ordeal so that evidence of forced penetration can be recorded. However, if they fail to do so, the evidence may be tampered with. This makes it difficult to claim they have been raped.

Your lawyer has to examine any medical examination evidence presented to determine authentication. If there is no such evidence, you could argue that there is no sufficient evidence that could criminalize you for engaging in non-consensual acts.

Mistaken Identity

You could argue that yours is a case of mistaken identity, especially if you know that the alleged victim does not know the perpetrator either because they were unconscious, intoxicated, or mentally handicapped.

For example, Sharon spotted Tom in a bar they were at and made advances toward him in an attempt to engage in sexual acts with him, but he was not interested. Later that night, Sharon became too intoxicated and fell unconscious in the hallway leading to the washroom. Unfortunately, someone came and raped her.

When Sharon came to her senses and found that she had been raped, she thought that Tom was the perpetrator and therefore accused him of rape. Here, Tom is a victim of mistaken identity because Sharon was too intoxicated to know who had non-consensual sexual intercourse with her.

If your defense attorney can show that you were not the person who committed the crime, such as through an alibi who can give evidence of your whereabouts when the alleged crime occurred, surveillance footage, or witness testimony, this can lead to the dismissal of your charges.

False Accusations

Sometimes, cases brought to court are false. Someone could target you and make false allegations against you due to ulterior motives such as revenge, jealousy, or misunderstanding.

You want to seek the services of a lawyer who can help you provide evidence that the accusations are false. Your lawyer could point out the inconsistencies in the alleged victim's story, motives for lying, and the prosecution's lack of physical evidence.

This will help convince the court without a reasonable doubt that you are the victim of false accusations, leading to dismissing the case against you. Your attorney may also introduce witnesses or other documentation, such as text messages or CCTV footage, that casts doubt on the accuser's credibility.

Insufficient Evidence

You could have your rape charges dismissed if you can convince the jury that the evidence presented against you is insufficient. Your attorney could help you challenge the credibility of the evidence presented by the prosecution, including witness testimonies, forensic evidence, and any other material.

The prosecution has the burden to prove their case beyond a reasonable doubt. Therefore, if there is insufficient evidence to support the rape allegations against you, the judge could dismiss the charges and give a not-guilty verdict.

Expungement of a PC 261 Violation Conviction

Expungement is the process by which you can legally have a conviction removed from your criminal record. This means that a future employer or property owner will not know that you had been convicted in the past because such records will be removed from the public registry.

However, expungement does not apply in cases where you are convicted to serve time in prison. For example, a rape felony convict is not eligible to have the conviction expunged. Expungement only applies if you were convicted to serve time in jail or probation. You also must have served your sentence fully and, during the application process, not be serving time for any crime.

How Will a Rape Crime Conviction Affect Your Gun Rights?

Under California law, if you are convicted of a felony, you could lose your gun rights. Therefore, a conviction for rape under Penal Code 261 could see you lose the right to possess, purchase or own firearms. However, you could have your rights restored after seeking the governor’s pardon.

Related Offenses to Rape

Some of the offenses that are related to rape crime include the following:

Sexual Battery (Penal Code 243.4)

Sexual battery involves the unlawful and intentional touching of the intimate parts of your victim for sexual arousal, gratification, or abuse. Unlike rape, sexual battery does not require penetration, and it covers a wider range of non-consensual sexual contact.

Statutory Rape (Penal Code 261.5)

Statutory rape occurs when you, who is over 18, have sexual intercourse with a minor who is under 18. Even if minors consent, the law does not recognize their ability to do so due to their age.

Find A Sex Crimes Defense Attorney Near Me

Finding the right legal representation is crucial if you are facing charges for a California PC 261 violation. You want to seek the expertise of a seasoned attorney who has experience defending defendants accused of rape.

At Monterey Criminal Attorney, we are dedicated to providing legal support, from understanding the charges against you to developing strong defense strategies to protect your rights and achieve the best possible outcome for your case. Contact us today at 831-574-1791 so we can begin working on your case.