Rape

Overview of Rape Crimes

Rape can be prosecuted under multiple different California laws, depending on the details of the particular offense in question. Listed below are some of the main rape crimes in California.

Rape – P.C. 261

Under §261, rape occurs when a perpetrator has sex with a non-consenting victim by using threats, force, or fraud, or by having sex with a victim who is unable to consent (such as when the victim is unconscious or has a mental disorder). While the common understanding of rape often includes using physical force, it is important to point out that rape can happen even in the absence of force—as long as the victim is non-consenting, it qualifies as rape. Notably, if the victim is the perpetrator’s spouse, then the interaction cannot qualify as rape under this section (there is a separate crime for spousal rape, see below). Additionally, “date rape” (a form of acquaintance rape when the rape occurs between two people who are voluntarily dating or seeing each other) falls under this section.

Clearly, consent is the key issue when discussing this section. Generally speaking, if the perpetrator had a legitimate reason to believe that the victim had consented to the sexual encounter (even if she actually hadn’t), it’s the perpetrator would have a valid defense of rape. A good example of this would be if the victim thought to herself that she didn’t want to have sex while she physically or verbally encouraged her sexual partner to have sex with her. In this scenario, the victim’s partner would have a good reason to believe that she was consenting to sex because she failed to communicate her lack of consent, and consequently it would be unlikely for him to be found guilty of rape.

Given how crucial consent is, it’s necessary to note that consent can actually be withdrawn after it was given. In other words, even if the victim initially consents to having sex, if the victim later withdraws consent but the perpetrator continues the sexual act against the victim’s will, this can qualify as rape. In order to prove that the consent was withdrawn, the victim needs to demonstrate that:

  1. She communicated that she objected to the sexual act and tried to stop it;
  2. She verbally or physically communicated her objection such that a reasonable person would understand that she no longer consented; AND
  3. The perpetrator forcibly continued to have sex with her in spite of the objection.

Actual Case

Tom was accused of raping Brianna, who he had met at a party.   In Brianna’s eyes, the encounter may have begun consensually, but she felt that she had withdrawn her consent as the encounter became more heated.  Tom, on the other hand, believed that Brianna was consenting to intercourse.  Tom was arrested.  The case proceeded to preliminary hearing where I was able to conduct an effective cross-examination of the prosecuting witness such that the District Attorney ended up dismissing the charges. 

Statutory Rape – P.C. 261.5

As discussed above, this section prohibits an adult from having sexual intercourse with someone who is under 18 years old. Importantly, this section is only applicable if the perpetrator is not married to the victim at the time of the sexual intercourse. Additionally, with regard to this statute, the extent of the sexual penetration is irrelevant. The key issue in this section is the fact that a minor cannot give legal consent. Thus, even if the minor agrees to have sex with the adult, this consent is meaningless for purposes of this section and the adult can still be convicted of statutory rape.

Actual Case

Bill, 19 years old, was accused of statutory rape of his 16 year old girlfriend, Sally.  The complaint was instigated by Sally’s parents.  The District Attorney would not dismiss the charges so we proceeded to trial on the matter.  At trial, I was able to convince the jury to nullify the law, and find Bill not guilty of the offense.  Our argument turned on the fact that Sally was a willing participant in the sexual relationship and that the ages of the two were quite similar.

Spousal Rape – P.C. 262

Under this section, it is unlawful for someone to rape his own spouse. Much like §261, prosecutions under this section depend on whether or not the victim spouse gave knowing consent or not. As such, when a spouse uses force, fear, fraud, or any condition that doesn’t allow for the victim spouse to give knowing consent (such as inebriation or unconsciousness), this qualifies as rape under this section.

Oral Copulation by Force – P.C. 288(a)

This crime is very similar to rape (P.C. §261), but instead of being forced to engage in sexual intercourse, the non-consenting victim is forced into engaging in oral sex with the perpetrator. Oral sex/copulation is defined as any contact (even slight) between the mouth of one person and the sexual organ or anus of another. It is important to note that penetration is not required for purposes of this section.

Forcible Penetration with a Foreign Object – P.C. 289

This crime has the same elements as rape (P.C. §261), but with one exception. Whereas rape involves a non-consenting victim being forced to have sexual intercourse, this crime involves a perpetrator forcibly penetrating the non-consenting victim with an object other than the perpetrator’s sex organ. This includes when a perpetrator penetrates the non-consenting victim with a foreign object, a substance, an instrument, and a device, among other things. Notably, even slight penetration with the object is sufficient for purposes of this section.

Penalties for Rape

Most California rape convictions will result in the perpetrator having to register as a sex offender. However, in addition to that, different rape convictions carry various sentences depending on the details, as discussed below.

Rape – P.C. 261:

  • If convicted of rape under P.C. §261, the perpetrator faces 3, 6, or 8 years in state prison and a fine of up to $10,000.
  • Notably, if the victim sustains significant or substantial physical injury, the perpetrator can face an additional 3-5 years in state prison.
  • Additionally, if the victim is a minor (under 18 years old), the prison sentence increases to 7, 9, or 11 years.
  • If the victim is under 14 years old, the sentence increases to 9, 11, or 13 years in prison.
  • This offense is a strike.
  • This offense requires life-time registration as a sex offender.

Statutory Rape – P.C. 261.5:

  • As discussed above, this crime is a wobbler and can be charged as either a misdemeanor or felony.
  • If charged as a misdemeanor, the perpetrator faces informal probation, up to 1 year in county jail, and up to $1,000 in fines.
  • If charged as a felony, the perpetrator faces formal probation, up to 1 year in county jail, up to 3 or 4 years in state prison (depending on the ages of the perpetrator and the victim), and/or up to $10,000 in fines.

Spousal Rape – P.C. 262:

  • If convicted of spousal rape, the perpetrator spouse faces 3, 6, or 8 years in state prison, a fine of up to $10,000, and/or formal probation.
  • Notably, if the perpetrator spouse uses force, fear, or threat of death or serious bodily injury, the prison sentence can increase to a life sentence if the perpetrator has a history of sex crimes.
  • This offense is a strike.
  • This offense requires life-time registration as a sex offender.

Oral Copulation by Force – P.C. 288(a)

  • This crime is a felony. If convicted, the perpetrator faces 3, 6, or 8 years in state prison and/or a fine of up to $10,000.
  • Additionally, if the victim is a minor (under 18 years old), the prison sentence increases to 6, 8, or 10 years.
  • If the victim is under 14 years old, the sentence increases to 8, 10, or 12 years in prison.
  • If the perpetrator committed the crime using force or fear with at least one other person, the perpetrator and anyone he was working in concert with faces 5, 7, or 9 years in state prison.
  • If the perpetrator committed the crime using force or fear with at least one other person AND the victim is a minor, the perpetrator and anyone he was working in concert with faces 8, 10, or 12 years in state prison.
  • If the perpetrator committed the crime using force or fear with at least one other person AND the victim is under 14 years old, the perpetrator and anyone he was working in concert with faces 10, 12, or 14 years in state prison.
  • This offense is a strike.
  • This offense requires life-time registration as a sex offender.

Forcible Penetration with a Foreign Object – P.C. 289

  • If convicted, the perpetrator faces 3, 6, or 8 years in state prison and a fine of up to $10,000.
  • Notably, if the victim sustains significant or substantial physical injury, the perpetrator can face an additional 3-5 years in state prison.
  • Additionally, if the victim is a minor (under 18 years old), the prison sentence increases to 7, 9, or 11 years.
  • If the victim is under 14 years old, the sentence increases to 9, 11, or 13 years in prison.
  • This offense is a strike.
  • This offense requires life-time registration as a sex offender.

Defenses to Rape

Defenses for rape crimes vary depending on the elements of the particular crime in question. However, common defenses for these crimes include:

  • False Accusation. If the victim is making false accusations (such as, to seek revenge of his spouse or significant other), this can be a viable defense for the accused.
  • If the victim actually gave consent at the time of the interaction, then the interaction likely does not qualify as rape under these sections. Notably, if the victim gave consent but subsequently retracted consent after the sexual interaction occurred, the original consent is still a valid defense.
  • Lack of Evidence. If there is no physical evidence of the rape, this fact can lend itself to a solid defense.
  • Mistaken Identity. Often, certain factors can result in a rape victim not being able to correctly identify her attacker afterwards, such as when the attacker obscures his face in some way, or if it was dark when the attack occurred. As a result, if someone is erroneously identified as a rapist, it is essential that he assert this defense as effectively and quickly as possible.

HOW WE CAN HELP

I have been practicing criminal defense for over 35 years.  I have represented people on hundreds of criminal cases and have a proven record of success.  I will begin by combing the police reports for any helpful information and inconsistencies and then will meet with you to discuss your side of the story and to determine possible defenses.  I employ a team of investigators, legal researchers, and expert witnesses that will help present the strongest possible case.  Often, in their attempt to find someone responsible for a crime the police will arrest the wrong person. Sometimes the police will take an innocent situation and charge someone with a crime.  I served for over sixteen years as a Judicial Officer of the Sacramento Superior Court and have established key relationships that can be used to greatly benefit my clients.  I will aggressively fight for you to get you the best possible result on your case including taking the case to trial if needed.  Call Foos Gavin Law Firm at (916) 779-3500 or email us at This email address is being protected from spambots. You need JavaScript enabled to view it. for a no-cost initial consultation.


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