PC 261 –Rape
Penal Code 261 – Rape Laws in California
Forcing unwanted sexual intercourse is a crime in California. Under California Penal Code section 261.5 (PC 261.5), it is illegal for anyone to have sex with a person when it is accomplished by means of physical force or any other way that overcomes the free will of the other person involved. This contrasts with a charge of statutory rape, under California Penal Code 261.5, which only focuses on the minor’s age at the time of sex. Learn more about California’s statutory rape laws here [web link].
How does a prosecutor prove a rape case in California?
Rape, under PC 261, can occur with even the slightest act of sexual penetration. Even so, in order to convict a person of rape, there are four elements of proof, that the prosecutor must prove beyond a reasonable doubt. You will be accused of violating Penal Code 261 if:
- You had sexual intercourse with a person
- You and the other person were not married at the time of the sexual intercourse
- The other person did not consent to sexual intercourse, AND
- You accomplished intercourse by one of the following:
- Force
- Fear
- Violence
- Duress: Implied threat or force that would cause a reasonable person to act out of the norm.
- Menace: Threat or act that shows intent to cause injury
- Fear or immediate and unlawful bodily injury
- Future threats of bodily harm
- Threat to retaliate (i.e. kidnap, falsely imprison, inflict extreme pain, death)
- Threat of official action (i.e. abuse of authority by public official to incarcerate)
- Threat of deportation by an official or who has the authority to do so
- Retribution (payback/ revenge)
Note that even if the person was only pretending to be a law enforcement officer, or any other public official, the alleged victim only has to have reasonably believe that the defendant was a public official who could have taken action.
It is also worth noting, that in addition to forcible rape, the offense can also occur when the other person is unable to resist or consent to sexual intercourse due to alcohol or drug intake—otherwise known as date rape. Consider the example below.
Lydia goes on a date with Dave and they have a few cocktails.
She invites him over to spend the night with her, but after a few more drinks, Lydia blacks out from her alcohol consumption. The next morning, she wakes up with very little recollection of the night.
Dave cannot assume that Lydia is willing to have sex with him because she invited him over. Without her consent, which she would be unable to give due to alcohol intoxication, sexual intercourse would be rape.
A Closer look at Penal Code 261 –Rape Laws
A charge of lewd or lascivious acts with a minor can become more serious when there is force used to accomplish the act. Being that it is a more serious offense, there are harsher penalties attached when force is used. In order to be accused of violating Penal Code 288 (b), the prosecution must prove, beyond a reasonable doubt, that:
1. All elements necessary for a conviction of PC 288(a) occurred AND,
2. You used force, the fear of violence, or any threat to commit the act.
The consent element is crucial to proving a rape case. In order to give consent, a person must agree to it, freely and voluntarily, AND know the nature of the act. Even if the other person believes there is an implication of consent, an affirmative acknowledgement of consent must happen by both people.
It’s worth noting that evidence of marriage is not enough by itself to constitute consent. Conversely, a rape case can be difficult to prove if the victim does not manifest some evidence of lack of consent or if they are not under circumstances that would make it difficult to consent.
Yes. A person who initially consents to having sexual intercourse can change their mind. The person revoking their consent does not have to physically resist or fight back in order to communicate his or her lack of consent. Under these circumstances a person could be found guilty of rape if:
- The other person verbally or physically communicated that he or she no longer wanted to have sex.
- A reasonable person would have understood that the words or acts expressed a lack of consent.
- You forcibly continued sexual intercourse despite the objection to do so.
Consider the following example:
Peter and Lily have been dating for six months. Peter has been pressuring Katie to have sex with him but she has abstained from doing so.
One night, she decides she’s ready. As they begin to have sex, Katie abruptly decides that wants to stop. She verbally expresses to Peter that she wants to stop, but he does not take her seriously, forcefully pins her down, and continues on.
While Katie initially consented to having sex, she verbally withdrew it. Although she did not physically resist, Peter could still be found guilty of rape, under PC 261.
Penalties for Violating California’s Statutory Rape Laws
Rape is a FELONY and the penalties for this offense include:
- Formal (supervised) felony probation, OR
- Incarceration for three (3), six (6), or eight (8) years.
Enhancements:
- Rape upon a child who is under 14 years of age could be punished by nine (9), eleven (11), or thirteen (13) years of incarceration.
- Rape upon a minor who is 14 years of age or older could be punished by seven (7), nine (9), or eleven (11) years of incarceration.
Registering as a Sex Offender in California
In addition to the penalties, most rape convictions require that the offender register as a “sex offender”. Under Penal Code 290, California usually requires a mandatory lifetime registration as a sex offender [web link] for this offense.
Can the victim file a civil lawsuit for rape?
California personal injury law allows for victims of sexual assault to seek damages in civil court for rape. Keep in mind that a victim can sue the defendant for sexual assault even if the person is not convicted in criminal court. Victims can sue for the following damages:
1.
Lost wages
Psychological counseling
Los earning capacity
Pain and suffering
Past and future medical expenses
Emotional trauma and distress
Defenses to a Statutory Rape Case
As previously mentioned, consent is a key element to proving a rape case. You cannot be found guilty of rape if you actually and reasonably believed that the person consented to sex. Consider the following example:
Jose expresses that he wants a sexual, non-romantic, relationship with Marisela. She, on the other hand, is hoping for more. She has consensual sex with Jose, because she is certain that this will spark a romantic relationship. After a couple days of not hearing from him, Marisela concludes that he took advantage of her. Out of retaliation, she calls the police to report that Jose raped her. He is arrested for “violating” Penal Code 261.
Jose, actually and reasonably, believed that Marisela consented to sex—as she did. After the fact, she tries to withdraw her consent when she comes to the realization that Jose is no longer interested in seeing her. Jose did not accomplish sexual intercourse through violence, fear, or intimidation. As a result, Jose would be found “not guilty” of rape under Penal Code 261, because she consented.
As with all criminal cases, a rape charge is often based on the statements of witnesses. These witnesses could be exaggerating or even lying. Sometimes, rape is a false accusation that the alleged victim might use out of revenge or anger or for any other self-serving purpose. A successful defense should always explore the possibility that you have been falsely accused.
Consider the following example:
Mark runs into his former classmate, Daisy, at a bar. He invites her back to his place for a drink. Although they chat and make out, Daisy seems nervous. Due to the circumstances, Mark decides to call it a night. He offers to call her a cab but she declines.
Daisy is unsure of her location, so she calls her boyfriend to pick her up. He questions her whereabouts, so she lies and claims that Mark raped her. Her boyfriend calls the police and Mark is arrested and accused of rape.
As the facts make clear, Mark did not have sex with Daisy. She claims she was raped for reasons related to her boyfriend. If the prosecution cannot prove that Mark had sexual intercourse with Daisy, then Mark would be found “not guilty” of rape under PC 261.
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