Rape is codified under penal code 261 pc prohibiting the act of intercourse with another without their consent. It is a violent felony applied to California Three Strike Laws and carries harsh penalties. The prosecutor may prove rape by several theories, including: 

• Disabled Woman,
• Force or Fear,
• Intoxication,
• Unconscious Person,
• Fraud,
• Threat of Retaliation,
• Authority of Public Official.[1]

Types of Rape Charges & Elements

Rape of Disabled Woman – Penal Code 261(a)(1) pc

Rape of a disabled person occurs when a defendant has intercourse, but due to a mental deficiency in the woman, the law recognizes that she is incapable of consenting.[2] To prove a person is guilty of rape of a disabled woman, the prosecutor must show:

1. The defendant had sexual intercourse with a woman;
2. He and the woman were not married to each other;
3. The woman had a mental disorder, development, or physical disability, that prevented her from legally consenting;
4. Defendant knew or should have known the woman had a disability that prevented her from legally consenting.[3]

Example:  Dan had intercourse with a woman in a mental hospital who’s delusional and believes she lives her life inside a video game. Because the woman has a mental disability, the law will deem her incapable of consenting to intercourse with Dan.

Rape by Force or Fear – Penal Code 261(a)(2) pc

Rape by force or fear can be accomplished with mere words, use of a weapon, or even threat to the accuser’s family member.[4] To prove someone is guilty of rape by force or fear, the prosecutor must prove:

1. Defendant had sexual intercourse with a woman;
2. He and the woman were not married at the time of intercourse;
3. The woman did not consent to the intercourse;
4. Defendant accomplished the intercourse by force, violence, duress, or fear of immediate and unlawful bodily injury to the woman or someone else.

Example:  Dan had sex with his 17-year-old step-daughter. Prior to intercourse, he told his step-daughter that he would kill her mother if she didn’t have sex with him. Reluctantly, the teen submitted to Dan’s demand.

Rape by Intoxication – Penal Code 261(a)(3) pc

Rape by intoxication makes it a crime to have intercourse with a woman knowing that she cannot resist due to her intoxicated state.[5] To prove rape by intoxication, the prosecutor must prove:

1. Defendant had sexual intercourse with a woman;
2. He and the woman were not married;
3. The effect of an intoxicating substance prevented the woman from resisting;
4. Defendant knew or should have known the effect of the substance prevented the woman from resisting.[6]

Example:  Dan went out to a bar with his friend Sara to celebrate his recent work achievement. Sara tells Dan that she wants to have sex with him. Both Sara and Dan go back to Dan’s house, where Sara passes out due to her alcohol level. Dan then has intercourse with Sara. In this case, although Sara initially expressed a desire to have sex with Dan, she was incapable of resisting or withdrawing consent if she ever desired.

Rape of an Unconscious Person – Penal Code 261(a)(4) pc

Rape of an unconscious woman does not necessarily require that the woman be “unconscious.” It will suffice if she’s not aware that the act is occurring or aware of the act’s characteristics because the perpetrator tricked, lied to, or concealed information to her. To prove someone is guilty of rape of an unconscious person, the prosecutor must prove:

1. Defendant had sexual intercourse with a woman;
2. He and the woman were not married at the time;
3. The woman was unable to resist because she was unconscious of the nature of the act;
4. Defendant knew that the woman was unable to resist because she was unconscious of the nature of the act.[7]

Rape by Fraud – Penal Code 261(a)(5) pc

Rape by fraud occurs when someone falsely induces someone else into believing they are married to one another.[8] Although hardly prosecuted, to prove rape by fraud under penal code 261(a)(5), the prosecutor must prove:

1. Defendant had sexual intercourse with a woman;
2. He and the woman were not married at the time of the act;
3. The woman submitted to intercourse because she believed the defendant was her husband;
4. Defendant tricked, lied to her, or concealed information from her, intending to make her believe they were married.[9]

Example: Dan’s friend Beth has suffered from temporary amnesia. He lied to her and said they have both been married for over a year. Beth had sex with Dan under that belief. Here, Dan would be charged with rape because he falsely induced Beth into believing they were married.

Rape by “Threatening to Retaliate” – Penal Code 261(a)(6) pc

Rape by threatening to retaliate against the alleged victim or another occurs if there is a reasonable possibility that the defendant will execute the threat. “Threatening to retaliate” means threatening to kidnap, falsely imprison, or inflict extreme pain, serious bodily injury, or death.[10]

To prove someone is guilty of rape by threatening to retaliate, the prosecutor must prove:

1. Defendant had intercourse with a woman;
2. He and the woman were not married at the time;
3. The woman did not consent to intercourse;
4. Defendant accomplished the intercourse by threatening to retaliate in the future against the woman or someone else.

Rape by Authority of Public Official – Penal Code 261(a)(7) pc

Ordinarily applied to police officers or public officials holding arresting power, rape by the authority of a public official occurs when a woman submits to the act of intercourse under the threat of incarceration, arrest, or threats to deport someone. To prove rape under this theory, the prosecutor must show:

1. Defendant had sexual intercourse with a woman;
2. He and the woman were not married;
3. The woman did not consent to the intercourse;
4. Defendant accomplished the intercourse by threatening to use the authority of a public office to incarcerate, arrest, or deport someone.

Example:  Dan dressed up as a police officer and stopped a woman on the street. He told the woman that if she did not have intercourse with him, he would arrest her for littering. The woman reluctantly submitted to intercourse. In this case, Dan would be charged with rape because the woman gave in to Dan’s ultimatum under the belief he was a police officer.

Legal Defenses to PC 261

Consent

In some circumstances, such as forcible rape, consent is an absolute defense. To succeed in this defense, it must be shown that the woman freely and voluntarily knew the nature of the act.

False Accusations

Because of the low threshold showing to file rape charges, it is not uncommon for children or their parents to leverage the system by falsely claiming rape allegations against a defendant. Motivations made include revenge, financial, or former spouses’ attempt to gain full child custody in a family law court.

Mistaken Identity

A substantial number of rape cases rest solely on the purported victim’s identification of the perpetrator. This raises concerns, especially if there’s no corroborating evidence to support the accuser’s claim. Mistaken identification can be the product of several factors: poor lighting, cross-racial identification, stress over the incident, memory recollection, and even improperly asking closed-ended questions.

What is the Punishment for Rape in California?

PC 261 is punishable by imprisonment in the state prison for 3, 6, or 8 years. In addition, more punishment may apply if the purported victim suffers great bodily injury because of the act. Consequently, a great bodily injury enhancement carries an additional 3 to 5 years in prison.

Like all sex crimes, a conviction for rape mandates you to register as a sex offender under Penal Code 290 for the rest of your life.[11] Furthermore, failing to register is a crime itself.

Contact Us to Schedule a Free Sex Crimes Consultation

Rape is a serious sex crime that can result in a lengthy prison sentence and lifetime consequences. Consequently, you must consult with an experienced Orange County Criminal Defense Attorney if you or a loved one have been arrested or charged with this crime. To schedule a free, confidential consultation, contact us today.

Related Offenses

• Lewd Acts with a Minor – Penal Code 288 PC
• Statutory Rape – Penal Code 261.5 PC
• Sexual Battery – Penal Code 243.4 PC

 

 

Legal References:

[1] See Penal Code 261 et seq.

[2] (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.

[3] CALCRIM No. 1004: https://www.justia.com/criminal/docs/calcrim/1000/1004.html

[4] (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.

[5] (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.

[6] CALCRIM No. 1002: https://www.justia.com/criminal/docs/calcrim/1000/1002.html

[7] CALCRIM No. 1003: https://www.justia.com/criminal/docs/calcrim/1000/1003.html

[8] (5) Where a person submits under the belief that the person committing the act is the victim’s spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief.

[9] CALCRIM No. 1005: https://www.justia.com/criminal/docs/calcrim/1000/1005.html

[10] Penal Code 261(a)(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.”)

[11] http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=290