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Date Rape - PC 261

Being charged with rape under California’s Penal Code 261 PC is not something you should face alone. This offense carries penalties and consequences that could follow you for the rest of your life. It is highly recommended you seek the right criminal defense attorney if you are facing charges for rape, date rape, spousal rape, or other related offenses.

What is California’s Rape Law?

Under Penal Code 261 PC California’s Rape Law, rape is defined as non-consensual sexual intercourse with a person who is not the spouse of the offender, by means of:

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  • Force;
    • Using physical force to commit the act of non-consensual sex is rape.
    • For instance, using your physical strength to over power someone else in order to have sexual intercourse with them is an act of rape.
    • If the victim was first beaten into submission and then raped, other charges could be filed in addition to rape. Examples of such charges are;
      • Penal Code 242 Assault and Battery,
      • Penal Code 243.3 PC Sexual Battery, or
      • Penal Code 243(d) Battery with Serious Bodily Injury.
  • Violence;
    • Being physically violent with another individual in order to rape them will carry additional charges, as mentioned above.
  • Duress;
    • Using direct or implied threats to coerce an individual to perform sexual intercourse that they would not have otherwise consented to is rape.
  • Menace;
    • Using threats, declaration of threats, or taking actions that clearly show the intention to inflict injury on another person.
  • Fear of bodily harm;
    • When the alleged victim actually had a reasonable fear of bodily harm to themselves or to another person,
    • And the perpetrator knew of that fear and took advantage of it in order to commit the act of sexual intercourse.
  • Threats;
    • Threatening someone with physical harm and/or mental anguish in order to get to them to have sexual intercourse is a form of rape.
    • Some examples of using threats for sexual intercourse are as follows:
      • The perpetrator threatens to stab the victim if they do not comply,
      • The victim is threatened with a severe beating,
      • The perpetrator threatens to shoot the victim with a firearm,
      • Additional charges may apply if a weapon was used, such as;
        • Penal Code 245(a)(1) PC Assault With A Deadly Weapon (ADW),
        • Penal Code 245(a)(2) PC Assault With A Firearm, or
        • Penal Code 417 PC Brandishing A Weapon or Firearm.
  • Fear of retaliation;
    • When the alleged victim is threatened with death, great bodily injury, torture, kidnapping, or false imprisonment.
  • Fraud;
    • Using fraud as a means to commit rape is less commonly expected than outright physical force or threats. However, it is still considered rape when the offender had sexual intercourse with the victim by means of
      • Lying,
      • Tricking, or
      • Blackmailing
    • The following situations are examples of using fraud to commit rape;
      • A police officer pulls someone over for speeding and discovers they have a suspended license. He offers to let them go in exchange for sex.
      • A man takes a woman out for a date and roofies her drink while she is in the restroom. She eventually consumes her drink and the drugs take effect. He takes her home and has sexual intercourse with her while she’s passed out from the drugs.
      • The boss throws his weight around and tells some of his female employees they can keep their jobs if they have sexual intercourse with him.

It’s also considered rape if the victim was:

  • Unconscious, or
  • They are incapable of giving legal consent.
    • If the victim was passed out whether, from drugs or alcohol, they are not capable of giving legal consent.
    • If the victim is under the legal age limit, they are not lawfully able to give legal consent.
    • If the victim was in a coma or under anesthesia they are not able to give legal consent.
    • If the victim is mentally or physically disabled they are not capable of giving legal consent.
      • For example, someone with severe mental disability who does not understand the concept of sex and has the intelligence level equal to that of a toddler cannot give legal consent to have sexual intercourse.

Similar Offenses and the Differences

Although there are similar offenses related to Penal Code 261 PC, the details of the whole situation are taken into consideration. The following are some examples of what similar rape offenses are and how they differ from PC 261.

  • Date Rape is a non-legal term for committing rape and carries the same penalties as Penal Code 261 PC rape.
    • Date rape and rape are one and the same, the only difference is the victim and offender are acquaintances. Date rape occurs with individuals who are voluntarily spending time together. Regardless of whether it was the first date or they were in a relationship, charges can still be filed under California’s Rape Laws PC 261.
  • Penal Code 262 PC Spousal Rape;
    • Spousal rape, also known as marital rape, occurs when non-consensual sexual intercourse takes place between a married couple.
    • Not only does PC 262 fall under California’s rape laws, it also falls under the domestic violence laws.
  • Penal Code 261.5 PC Statutory Rape laws
    • Having sexual intercourse with a minor, someone who is under 18 years old, is known as statutory rape.   
    • Under California law, minors are unable to give legal consent to have sexual intercourse. Even if it was consensual, if they are under age, it is statutory rape.
    • This is often considered a “wobbler” in California, meaning it can be charged as a misdemeanor or felony depending on the circumstances and age difference.

Other Related Offenses

  •  Penal Code 240 PC Assault;
    •  Assault is the act of unlawfully applying force on another person.
    •  It is also referred to as a simple assault and California law defines it as an attempt to violently injure someone else.
  •  Penal Code 288(a) PC Oral Copulation by Force
    •  This takes place when a perpetrator uses force, threats, menace, duress, or fraud to engage in non-consensual oral sex.
  •  Penal Code 289 PC Forcible Penetration with a Foreign Object;
    •  This is rape using something other than a sexual organ. For example, using a broomstick, night stick, fingers, or a dildo to sexually penetrate someone without their consent is rape.

What the Prosecution Does

In order for the prosecution to prove beyond a reasonable doubt that the act of rape under Penal Code 261 took place, they must first prove the four facts of the crime were committed. These facts are also referred to as elements of the crime and they are as follows:

  • You actually engaged in sexual intercourse with another individual,
  • This individual was not your spouse at the time,
  • The individual did not provide their clear consent to have sexual intercourse,
  • You actually committed the act of rape defined under California’s Rape Laws as listed above.

Who Can Be Charged?

There are obvious and not so obvious situations where rape can be charged. The following examples outline different scenarios that can end with rape charges being filed.

  • Sue wants to break up with Bill because he has a really bad temper, especially when he drinks. She has two little kids and was worried for their safety around him. Bill threatens to kidnap and hurt her kids if she tries to split up with him and then forces her to have sex with him. Bill could be charged with PC 261, rape because he used threats to force her to have sexual intercourse and to stay in the relationship.
  • A highway patrolman pulls Nancy over for speeding on the interstate and discovers cannabis in her backseat. She is a medical marijuana card holder, but she was traveling without her card. The patrolman threatens to arrest her on suspicion of drug dealing and offers to let her go if she has sexual intercourse with him. The patrolmen could be charged with rape.
  • Nancy attended a party at her friends' house and drank a lot. Her friends brought her to the guest room to let her sleep it off. Donald slipped into the room afterward and proceeded to have sex with Nancy while she was passed out. She did not give consent because she was unconscious. Donald could be charged with rape.

What the Legal Defense Can Do

There are many situations where rape charges can be filed and you don’t have to face such charges alone. Some of the common defenses used are:

  • Cases of mistaken identity do happen, especially instances where the alleged victim cannot fully recall the assailant. Some of the instances where a case of mistaken identity can happen are:
    • The alleged victim’s face was covered, and/or
    • the assailant's face was covered,
    • There was virtually no lighting, so the alleged victim’s eyewitness account may not be accurate.
  • False accusations can often happen as a result of retaliation, anger, jealousy, and/or other emotionally motivating factors.
  • Did the alleged victim give consent? There are situations where consent was initially given and later withdrawn. However, it can be difficult to charge if the alleged victim did not clearly state they were withdrawing their consent and you actually and reasonably believed consent was given.

Punishments and Penalties

If convicted under Penal Code 261 PC California’s Rape Laws, you face felony consequences. They are as follows:

  • Lifetime registration as a sex offender,
  • 3, 5, or 8 years in a California State Penitentiary, and
  • A strike on your record under California’s Three Strikes Law.
  • Enhanced sentencing may apply if the victim sustained a severe bodily injury and/or if they were a minor.

Penalties for Related Offenses

The penalties associated with being convicted of rape are severe and will follow you for the rest of your life. If you are found guilty of additional offenses, the penalties could be enhanced. The following list details the penalties associated with related crimes.

  • Penal Code 240 PC Assault, a simple assault is a misdemeanor;
    • Up to one thousand dollars in fines, and/or
    • Up to six months in county jail.
  • Penal Code 288(a) PC Oral Copulation by Force;
    • Sex offender registration,
    • 3, 6, or 8 years in a California state penitentiary, and/or
    • Up to ten thousand dollars in fines.
  • Penal Code 289 PC Forcible Penetration with a Foreign Object;
  • Date Rape and Spousal Rape;
    • These three offenses are punishable under the same penalty standards as Penal Code 261 California’s Rape Laws.
  • Penal Code 261.5 PC Statutory Rape;
    • Misdemeanor;
      • Informal (Summary) Probation
      • One year maximum in county jail, and/or
      • Up to one thousand dollars in fines.
    • Felony;
      • Probation(informal or formal) and
      • Up to one year in county jail, OR
      • 16 months, 2, or 3 years in custody;
      • If the defendant was older than 21 and the alleged victim was under the age of 16, the sentencing is:
      • 2, 3, or 4 years in custody,
      • Up to ten thousand dollars in fines.
    • Additional Civil Penalties For Adults 18 And Up;
      • If the alleged victim is less than two years younger than the perpetrator, they could face a maximum fine of two thousand dollars.
      • If the alleged victim is at least two years younger than the perpetrator, they could face a maximum fine of five thousand dollars.
      • If the alleged victim is at least three years younger than the defendant, they could face fines up to ten thousand dollars.
      • The defendant could face a steeper fine of twenty-five thousand dollars if the alleged victim was under the age of 16 and the defendant was over the age of 21.

Who Can Help

Finding the right criminal defense attorney is an important step in hanging on to your freedom. If you are located in the greater San Diego area, Orange County, or Los Angeles and need legal representation, consider the Law Offices of Anna R. Yum. As a top-rated criminal defense lawyer, you can expect an aggressive fight for your rights.

Don’t hesitate to contact us today if you have any further questions or if would like a free consultation.

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