Rape Law & Defense
Penal Code 261
Information on the crime of rape is found in at California penal code section 261.
California Rape Laws (Abbreviated)
Rape is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, under any of the following circumstances:
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 PC 261(a)(1).
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 PC 261(a)(2)
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 PC 261(a)(3).
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 was asleep, threatened, unconscious, or was induced to believe that the defendant was someone other than the defendant PC 261(a)(4).
To prove that the defendant is guilty of rape, the district attorney must prove that:
- The defendant had sexual intercourse with a woman
- The woman did not consent to the intercourse
- The defendant used force, fear, or threats
Sexual Intercourse means penetration, no matter how slight, or the vagina or genitalia by the penis. Ejaculation is no required.
Note: A woman who initially consents to an act of intercourse may change her mind during the act, and if she communicates to the defendant her objection to the act through either words or conduct then the intercourse is unlawful and without consent.
Punishment & Sentence for Rape (PC 261)
Felony Sentence: Rape charges are classified as felonies, except statutory rape charged under PC 261.5(c), which may be classified as a misdemeanor.
Different rape charges carry different maximum prison sentences. Below is a list of the most common rape charges and the corresponding maximum prison sentence:
PC 261(a)(2) Rape by force or fear of bodily injury. Maximum punishment is eight (8) years in prison with eligibility to earn up to fifteen percent (15%) credit off sentence for good behavior while in prison.
PC 261(a)(2) Rape of a victim 14-17 years old by force or fear of bodily injury. Maximum punishment is eleven (11) years in prison with eligibility to earn up to fifteen percent (15%) credit off sentence for good behavior while in prison.
PC 261(a)(3) Rape of intoxicated victim. Maximum punishment is eight (8) years in prison with eligibility to earn up to fifty percent (50%) credit off sentence for good behavior while in prison.
PC 261(a)(4) Rape of unconscious victim. Maximum punishment is eight (8) years in prison with eligibility to earn up to fifty percent (50%) credit off sentence for good behavior while in prison.
PC 262(a)(1) Spousal rape by force or fear of bodily injury. Maximum punishment is eight (8) years in prison with eligibility to earn up to fifteen percent (15%) credit off sentence for good behavior while in prison.
PC 264.1(a) Rape in concert. Maximum punishment is eight years in prison with eligibility to earn up to fifteen percent (15%) credit off sentence for good behavior while in prison.
Probation Sentence: In some rape cases, it may be possible to qualify for a probation sentence, with or without a jail sentence. Probation sentences in rape cases is allowed under unusual or special circumstances (except for statutory rape charged as PC 261.5(c)). Whether or not a probation sentence is available in any rape case depends on many factors, including: the presence of any enhancements to the rape charges, the egregiousness of the facts, the defendant's criminal history, etc. A probation sentence for rape is classified as felony probation, and if granted, the defendant will be ordered to fulfill terms (promises) of probation.
Super Strike: Most rape charges are classified as super strikes under California's Three Strikes Sentencing Law. A super strike is a criminal charge that means the offense is among the most serious in the law and the potential for early release on parole or reclassification of the charge is unavailable if the defendant was sentenced to prison. All rape charges are considered violent crimes and most rape charges are also considered serious crimes as those terms are defined in the law. Serious and violent crimes can trigger third strike sentencing and violent crimes are ineligible to receive early release on parole under California's new Prop 57 law.
Moral Turpitude Crime: Rape charges are considered to be crimes of moral turpitude, which means that rape is considered to be morally wrong. Licensed professionals, such as doctors, nurses, lawyers, etc., who suffer a conviction for any crime considered to be a crime of moral turpitude, may have his or her professional license, revoked or suspended. In addition, immigrants who are convicted of crimes of moral turpitude may be deported from the United States.
Sex Offender Registration: Rape charge convictions carry a requirement to register as a sex offender for the rest of the defendant's life (excluding statutory rape charged as PC 261.5(c)). Sex offender registration includes, among other things, registering and updating, the defendant's name and address with the local police in the city where the defendant lives. Registration requirements are strict and vary depending on what type of rape crime was committed.
Additional Punishment: In addition to any jail or prison sentence, if convicted of the crime of rape, the defendant may face some, or all, of the following punishments: restitution to victims, fines, criminal protective orders, enhanced punishment for future criminal convictions, firearm ownership prohibition, civil lawsuits, loss of employment or immigration status, and more.
Defense to Rape (PC 261)
Common defenses to rape include: consent, reasonable interpretation that the alleged victim consented, mistake of fact, statute of limitations, reasonable believe that the alleged victim was over the age of seventeen (17) [for statutory rape crimes], coerced confessions, police investigation misconduct, intoxication, insanity, insufficient evidence of penetration or sexual intercourse, alibi, and more.
To learn more about the crime of rape and defenses to penal code 261 PC, contact San Bernardino County criminal defense lawyer Christopher Dorado today for a free consultation.
Sex Crimes Criminal Defense Attorneys
PC 261: Rape Defense
Free Consultations 24hrs / 7days
Spanish speaking attorneys available / Se habla espanol
Rape Defense PC 261 & 262
- Continuous Sexual Abuse of a Child
- Loiter w/Intent to Commit Prostitution
Sex Crimes Defense Attorneys, Serving
San Bernardino County
San Bernardino, Redlands, Yucaipa, Rialto, Colton, Fontana, Hesperia, Highland, Victorville, Rancho Cucamonga, Ontario, Chino, Upland, Montclair, Adelanto, Apple Valey, Grand Terrace, Loma Linda
Riverside, Eastvale, Palm Springs, Moreno Valley, Jurupa Valley, Banning, Beaumont, Norco, Hemet, Perris, Corona
Los Angeles County
Los Angeles (LA), Pomona, West Covina, San Dimas, Claremont, LaVerne
Rape related charges (PC 261)
- Rape by force or fear of bodily injury PC 261(a)(2)
- Rape in concert PC 261.4(a)
- Spousal rape by force or fear of injury PC 262((a)(1)
- Rape of intoxicated victim PC 261(a)(3)
- Rape of unconscious victim PC 261(a)(4)
- Statutory rape PC 261.5(c) & PC 261.5(d)
- Sexual penetration with foreign object PC 289
- Rape of minor 14-17 years old PC 261(a)(2)
- Rape by threat of arrest or deportation PC 261(a)(7)
- Rape of victim who believes defendant is known to her PC 261(a)(5)
- Spousal Rape by intoxication PC 262(2)(2)