What is California Penal Code 261 PC Rape?

California takes the crime of rape very seriously. If charged with rape, prosecutors will pursue the case relentlessly and, if convicted, the courts will punish you severely. If you are charged with California Penal Code 261 Rape, its important that you to understand the laws, the penalties, and the defenses that are available to you.

California broadly defines the crime of rape, which means California rape laws cover a wide range of conduct. Simply put, rape is the act of having sexual intercourse with another person – without their consent or against their will. The laws covering rape are codified in the statue: Penal Code 261.

If the act of rape is committed against someone you are married to, then California Penal Code 261 Rape does not apply. Rather, you will be charged with “spousal rape”, which is codified in Penal Code 262 PC. The legal definition, punishments, and defenses of spousal rape are nearly identical to California Penal Code 261 PC Rape. If this charge applies to you, you should read below as the information given also applies to your case.

To understand the accusations against you, you should begin by reviewing the section below on the legal definition of California Penal Code 261 Rape. An experienced domestic violence attorney can then help you put your particular case in context with the legal details of Penal Code 261 PC.

What is the legal definition of California Penal Code 261 PC Rape?

Before a prosecutor can convict you of a domestic violence crime in a California court trial, they must prove all the elements of that crime. Elements are simply facts set forth in the penal code that define what actions or circumstances constitute a crime. All of these elements must be proven beyond a reasonable doubt. Keep in mind that the actual proving of the elements only happens at trial. But the negotiations, between your domestic violence attorney and the prosecutor, regarding whether particular elements can be proven will be the most discussed issue throughout your case.

For California Penal Code 261 PC Rape, the elements are the following:

• You engaged in sexual intercourse with the alleged victim.
• The sexual intercourse was conducted without the alleged victim’s consent OR The sexual intercourse was conducted against that person’s will.
• You achieved the act through one of several means listed in the California Penal Code 261 PC Rape code.

Let us examine the elements of California Penal Code 261 PC Rape more closely, so that you can gain a better understanding of your rights and liabilities. This will also help you determine what issues will become major factors in your case, so that you can assist your domestic violence attorney in building a strong defense.

What is the legal definition of “Sexual Intercourse” under California Penal Code 261 PC Rape?

“Sex” can mean different things to different people. But for the purposes of California domestic violence law, sex or sexual intercourse is defined very broadly. Any penetration, regardless of how slight, triggers California Penal Code 261 PC Rape – assuming the other elements are met as well. There is no requirement that the defendant or the alleged victim ejaculate. Additionally, it does not matter if you penetrated the alleged victim, and for whatever reason, decided to stop. Once there is penetration, it is considered sexual intercourse for purposes of California Penal Code 261 PC Rape.

What is the legal definition of “Consent” under California Penal Code 261 PC Rape?

People generally understand the concept of consent. However, the concept of legal consent can be a little confused because there are more nuances. If you are charged with California Penal Code 261 PC Rape, then you should read the section below legal consent is one of the biggest issues surround criminal rape cases today.

Under California domestic violence law, consent is defined as the affirmative cooperation in an act that is expressed or given through the implementation of free will. In the context of domestic violence rape, consent must be given freely, voluntarily, and with knowledge of the nature of the sexual act.

As you can tell, the idea of consent requires getting in the mind of the alleged victim. Understanding what exactly is going through someone’s mind is difficult to do, let alone prove. It gets murkier when it is taken in the context of an intimate sexual act, where there are often no witnesses – and it is likely that drugs or alcohol is involved. This difficulty can either work for you or against you. On one hand, the prosecutor has the burden of proving that there was no consent. If there is little evidence, they may not be able show lack of consent beyond a reasonable doubt. On the other hand, today’s political climate works against those accused of California Penal Code 261 PC rape. The alleged victim may be lying, but juries are more likely to give victims the benefit of the doubt. Society wants to rightly punish those who commit crimes involving sexual assault, but many innocent people are falsely accused and punished in the process.

Below is a list of common issues surrounding consent. You may think that a particular piece of evidence means the alleged victim gave consent. But in reality, this may not be the case.

• Previous Sexual Relationship: A marital, cohabitating, or dating relationship between you and the alleged victim does not by itself mean that there was consent to sexual intercourse. There needs to be further evidence of consent. And the consent needs to apply to each individual act of sexual intercourse. Keep in mind, that if you are married to the alleged victim, then your case will fall under a different law - Penal Code 262 spousal rape. However, most of the details of spousal rape are similar to California Penal Code 261 PC Rape.
• Asking for a Condom or Contraception: It does not necessarily mean there was “consent” if the alleged victim requested, suggested, or indicated they wanted you to use a condom (or any type of birth control). There needs to be further evidence of consent to fight the consent element of California Penal Code 261 PC Rape. This does mean that this fact is completely useless to your defense. Asking for the condom could suggest a situation where the issue of consent was not clear. More significantly, it is proof that that your belief that there was consent was “reasonable.” The issue of whether there was reasonable belief regarding consent will be discussed below, as it pertains to one of the defenses to California Penal Code 261 PC Rape.
• Withdrawn Consent: You might be in a situation where you initially thought you had consent, but the alleged victim at some point withdrew their consent. If this occurs, then the act of sexual intercourse could turn into an act of rape. In theses situations, the sexual intercourse turns into California Penal Code 261 PC Rape if the following all occur:

1) The alleged victim indicates to you that they do not want to participate in the sexual intercourse and they try to stop the intercourse.

2) The alleged victim indicates their objection in a manner that would communicate that consent has been withdrawn to a reasonable person.

3) Despite the alleged victim’s objection, you forcibly continue the sexual act.

• California’s Rape Shield Law: California maintains a specific set of laws designed to protect alleged victims in cases involving sexual assault. Termed the Rape Shield Law, these provisions prevent a defendant in a California criminal rape trial from introducing evidence about the past sexual conduct of the alleged victim for the purposes of showing that they consented to the sexual intercourse with the defendant. This does not mean that you cannot introduce evidence of the alleged victim’s past sexual conduct at all. You are still allowed to introduce such evidence in order to diminish the credibility, or trustworthiness, of the alleged victim. However, even this is allowed in a limited fashion, as this type of evidence can only get admitted if it meets a specific set of requirements and the sitting judge allows it. Long story short, you cannot use the past sexual history of the alleged victim to directly prove that you had consent during the relevant sexual acts.
• Situations Where Consent Be Given:

1) The alleged victim was too intoxicated or inebriated to legally consent

2) The alleged victim had a mental or physical disability to legally consent. In this situation, the disability must be one that you either actually knew about or reasonably should have knew about.

3) The alleged victim was unconscious regarding the nature of the sexual act. For example, the alleged victim was sleeping during the sexual intercourse. Again, the unconsciousness must be one you either actually knew about or reasonably should have knew about.

What is the legal definition “of against the will” under California Penal Code 261 Rape?

For your particular California Penal Code 261 Rape case to meet the element of “against the will”, you must have achieved the sexual intercourse at issue through one of the following methods:

• Physical Force
• Violence
• Duress: This is when a threat is used, either directly or indirectly, to pressure the alleged victim to submit or agree to the sexual acts, when they would not have done so without the threat. This does not mean any threat would suffice to trigger California Penal Code 261 rape. The threat must be one that is able to pressure a “reasonable” person.
• Menace: This is when the threat is to impose injury on another person. The threat does not have to be communicated verbally. It can be communicated through an act.
• Fear of Bodily Harm to another person or the alleged victim: In these situations, the alleged victim’s fear must be actual and reasonable – given the circumstances. If the alleged victim’s fear is unreasonable, then the defendant must of known of the fear and took advantage of that fear.
• Fraud: This occurs when the defendant either deceptively persuades the alleged victim they are married or deceptively persuades the alleged victim that the sexual intercourse has a “professional” purpose even though it does not.

“Resistance” and the Legal Definition of California Penal Code 261 PC Rape

Under California Penal Code 261 PC Rape, there is no requirement that the alleged victim “resist” the sexual advances in order to be convicted. The prosecutor does not need to prove “resistance.” In older forms of rape laws, resistance used to be an element that needed to be proven. However, California has modernized its laws to remove resistance as an element because it started to recognize that people deal with unwanted sexual advances in different ways. This does not mean “resistance” is not relevant at all when it comes to proving whether or not you are guilty of a California Penal Code 261 PC Rape violation. If the alleged victim did not resist, it could help establish that you reasonably believed you were participating in sexual intercourse with the consent of the alleged victim. As will be explained later, this reasonable belief can serve as a defense to a California Penal Code 261 PC Rape charge.

What are the potential punishments for a California Penal Code 261 PC Rape conviction?

California Penal Code 261 PC Rape is classified as a felony. As such, the penalties can be severe. A conviction under California Penal Code 261 PC Rape can carry with it anywhere between 3 to 8 years in a California State Prison.

There are sets of limited circumstances where a conviction under California Penal Code 261 PC Rape could potentially not result in state prison time. In these situations, the judge has the discretion of sentencing you with formal probation and up to 1 year in a county jail instead of state prison time. This is only possible if one of the following circumstances is met:

1) You are guilty of the rape accusation only due to the fact that the victim was unable to give consent due to a mental or physical disability.

2) You achieved the rape act by feigning to be another person who the victim knows

3) You achieved the rape act by threatening the alleged victim with the power and influence of a government official AND the case is so unique that the judge concludes that sentencing you with probation is just.

If your case does not meet one of these three situations, then California dictates that a Penal Code 261 PC violation must be penalized with state prison time.

Additionally, you could be subject to a “great bodily injury” enhancement if during the course of the California Penal Code 261 PC Rape the alleged victim suffered significant physical injury. If this is the case, in addition to the prison time for the base rape conviction, you could be sentenced to another and consecutive 3 to five years in state prison time. The state prison time also increases for a California Penal Code 261 PC Rape if the alleged victim is under the age of 18. If the alleged victim is under the age of 18, you could face anywhere from 7 to 11 years in state prison time. If the alleged victim is under 14 years old, you could face anywhere between 9 to 13 years in state prison time.

Besides prison time, you could also be subject to a fine of up to ten thousand dollars and a “strike.” This strike will subject you to the rules and penalties outlined in California’s Three Strike Law.

Sex Offender Registration

A California Penal Code 261 PC Rape conviction will subject you to California’s sex offender registry laws. Outlined in Penal Code 290, a California Penal Code 261 PC Rape conviction will require to register as a sex offender for your entire life and as a third tier sex offender. In limited situations, you may be only required to register as a second tier offender. If this is the case, you would be required to register for at least twenty years. You will only have this option if the victim is over the age of 18, but was unable to provide consent due to a mental or physical disability.

It is considered a separate felony if you do not register.

Now that you know the potential punishments, let us examine the legal defenses available for a California Penal Code 261 PC Rape charge. This way you can get a picture of the legal outlook of your particular case.

What are the legal defenses to a California Penal Code 261 PC Rape charge?

As illustrated above, the punishments for a California Penal Code 261 PC Rape conviction can be severe. Fortunately, there are a variety of legal defenses available to fight a California Penal Code 261 PC Rape charge. A skilled and experienced domestic violence attorney can review the specific circumstances of your case and determine a legal strategy that will maximize the best possible outcome for your situation. This legal strategy will likely utilize some of the legal defenses listed below. Keep in mind that the following list is not exhaustive and each specific case requires an individualized evaluation by a domestic violence attorney.

You are falsely accused of California Penal Code 261 Rape.

Incidents of domestic violence are fueled by emotion. The same goes for sex crimes. Because of the emotions involved, it is not uncommon for someone to be falsely accused of California Penal Code 261 Rape. Perhaps, you have a scorned lover is accusing you of this awful crime. Or perhaps, an ex-wife or co-parent is trying to use the false charges to gain an advantage in a divorce or custody proceeding. Regardless of the reason, it is critical that you hire a skilled domestic violence attorney to bring the truth the light. The earlier you hire a domestic violence attorney, the better your chances at avoiding a conviction for California Penal Code 261 Rape.

In false accusation cases, your domestic violence attorney can build the evidentiary record by interviewing witnesses, gathering physical evidence (such as DNA samples), utilize lie detector tests, and even obtain text and phone records of the victim. This type of evidence is usually fresher in the early stages, which is why it is important to hire a domestic violence attorney as soon possible. By doing so, you can build a defense that doesn’t rely on the police version of the story. This is particularly important because once the police think they have their guy, they typically don’t budge from what they think is the truth of the situation. In utilizing a diligent domestic violence attorney, the truth can be brought to light and you can avoid a false conviction for California Penal Code 261 Rape.

The alleged victim consented to the sexual intercourse.

You should not be charged with California Penal Code 261 Rape if the alleged victim consents to the sexual intercourse. This is the case even if the alleged victim consented and later changed their mind. In these situations, the alleged victim must have clearly indicated to you that they no longer consented before you can be convicted of California Penal Code 261 Rape.

The problem with evaluating rape crimes is that they usually occur in the privacy of the bedroom, with the entire affair turning into a “he said, she said” type of situation.” In this scenario, a common defense to a California Penal Code 261 PC Rape charge is the Mistake of Fact Defense. This defense entitles you to a dropping of the California Penal Code 261 Rape if you actually and reasonably believed that you had consent. The mistake is considered reasonable if a prudent, ordinary person could have made a similar mistake. Hence, what is considered prudent or ordinary depends largely on the particular person. In these types of cases, jury selection is very important. Nevertheless, if the mistake can be shown to be honest and reasonable, you can avoid a California Penal Code 261 Rape conviction.

There is a lack of evidence to charge you with California Penal Code 261 Rape.

Unfortunately, in many California Penal Code 261 Rape cases, the alleged victim does not receive medical attention. Hence, there may not be physical evidence, such as DNA samples, to exonerate you from a California Penal Code 261 Rape accusation. Additionally, because rape cases usually occur in private situations, there are no witnesses to corroborate the allegation. These scenarios turn into “he said, she said situations.” When this is the case, you may have a defense of “Insufficient Evidence.” Remember, the prosecutor has to prove every element of California Penal Code 261 Rape beyond a reasonable doubt. If the evidentiary record does not reflect this possibility, your domestic violence attorney might be able to get your California Penal Code 261 Rape charges dismissed because your case is even presented to a jury.

If Charged with Penal Code 261 Rape…

You should contact a domestic violence attorney immediately. Especially with Penal Code 261 Rape cases, time is of the essence.

We invite you to call Domestic Violence Attorney. We will gladly provide you with a free legal consultation. We will review your specific case, discuss what steps need to be taken, and answer any questions you might have about potential punishments or legal defenses.

Domestic Violence Attorney’s 24/7 phone number is 424-276-6060.