CA Penal Code 261

Rape

California Penal Code 261[1], defines rape as the non consensual sexual intercourse accomplished by means of threats, force, or fraud. This means that you achieved sexual intercourse with another by means of: physical force, violence, fraud, fear of retaliation, fear of bodily harm, or menace and that the victim was too intoxicated, suffered from a mental or physical disability, or was unconscious to consent.

In order to be convicted of rape the prosecution must prove the four elements of the crime:

  1. That you engaged in sexual intercourse with another person
  2. That you were not married to that person
  3. That the person did not consent to the intercourse
  4. That you accomplished intercourse by threats, force or fraud

Sexual intercourse is broadly defined by the state as any penetration; ejaculation does not need to occur.

Consent is defined by California positive cooperation in an act or attitude as an exercise of free will. Consensual sexual intercourse means that both parties acted freely and voluntarily with knowledge of the true nature of the sexual act.

Rape in California is a felony. If you are convicted you will face:

  • If the rape didn’t involve violence or force:
    • Formal probation
    • Up to one year in county jail
  • If the rape involved violence or force:
    • Up to eight years in California state prison
    • An additional three to five years if you inflicted great bodily injury upon the victim
    • Up to $10,000 in fines
    • A possible “strike” on your record in accordance to California’s Three Strikes Law
    • Forced to register as sex offender in accordance to CA Penal Code 290[2]

If the victim was a minor under 18 then you will face up to 11 years in state prison. If the victim is a minor under 14 then you will face up to 13 years in a state prison.

Prosecuting Rape – CA Penal Code 261

As previously mentioned, in order to be found guilty of rape in California, the prosecution must prove the four elements of the crime:

  1.  That you engaged in sexual intercourse with another person
  2.  That you were not married to that person
  3.  That the person did not consent to the intercourse
  4. . That you accomplished intercourse by threats, force or fraud

If the prosecution cannot prove these four elements of the crime then you will not be convicted of rape. It’s important to note that California rape laws pertain to both men and women and these cases are typically emotionally fueled and quite public. Like other sexually related crimes the public likes to see a speedy trial and someone go to prison.

Defending Rape – CA Penal Code 261

There is nothing worse than a person who forcibly performs sexual intercourse without a person’s consent, and those persons guilty of the crime should be punished accordingly. However, it is not uncommon for an accuser to fabricate a story to get someone in trouble with the law or for a person to fall victim of mistaken identity.

There are several strategies that a skilled criminal defense attorney will explore to prove your innocence and have your case dropped or your charges reduced. The first approach your criminal defense attorney will take is to make sure that you are not the victim of a false accusation. There are many examples of jealous ex-girlfriends/boyfriends who fabricate stories out of anger or revenge in order to get somebody in trouble. Luckily through the use of DNA evidence it can be easy to prove your innocence.

The second approach your attorney will take is investigate whether the victim consented to have sexual intercourse. If you and your attorney can prove in court that the victim consented to having sexual intercourse then you cannot be charged with rape. Or, if you can prove that you thought the victim consented to having sexual intercourse then you cannot be charged with rape either. This is known as the mistake of fact legal defense, meaning you actually thought the victim consented so you proceeded to have sexual intercourse and then later the he/she files a rape charge against you.

Because the third element of the crime is that the person/victim did not consent to the intercourse, then if you and your attorney can prove that the this element was not satisfied then you will not be convicted.

The next approach your criminal defense attorney will explore is to look at the evidence against you. If there is minimal evidence, meaning there are not any medical records, witnesses, or physical evidence then the prosecution will have a very difficult time proving your guilty. If this is the case then your attorney will contact the prosecution and tell them they have a weak case against you and that the case should be dropped. At this point either a plea bargain or case dismissal will take place.

Similar to other violent crimes, rapes typically take place at night with the criminal dressing in dark clothes and trying not to be seen. Because of the nature of the crime it is not uncommon for mistaken identification to be the reason for your charges. If you are the victim of mistaken identification then your criminal defense attorney will prove that the prosecution is charging the wrong person.

If you or one of your loved ones is facing a rape charge then it’s imperative that you discuss your case with a skilled criminal defense attorney immediately. Seppi Esfandi is a Certified Specialist in Criminal Law and has experience defending all sorts of crimes, including rape. We urge you to call us today at (310) 274-6529

 

References

[1] Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:

(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. Notwithstanding the existence of a conservatorship pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving consent.

(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.

(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.

(4) 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 meets one of the following conditions:

(A) Was unconscious or asleep.

(B) Was not aware, knowing, perceiving, or cognizant that the act occurred.

(C) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraud in fact.

(D) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose.

(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.

(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.

(7) Where the act is accomplished against the victim’s will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official. As used in this paragraph, “public official” means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official.

(b) As used in this section, “duress” means a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in appraising the existence of duress.

(c) As used in this section, “menace” means any threat,declaration, or act which shows an intention to inflict an injury upon another.

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