Date Rape – PC 261

The Legal Meaning of Rape

Penal Code (PC) Section 261 is the defining rape in California. This law defines rape as having sex with a person who is not your spouse and who has not consented to it. Sex means any form of penetration, regardless of how minor, of the genitalia or vagina by the penis. Thus, there need not be full penetration for a conviction to occur; just slight penetration suffices. Also, there need not be ejaculation to qualify as sexual intercourse.

Violent or forcible rape is just one of the various scenarios considered violations of PC 261. This form of rape is defined under Section 261a2. It entails physically hurting someone or holding them down if they try to resist. The following scenarios also count as rape under PC 261.

• Having sex with a person incapable of consenting because of a mental illness, physical disability, or intellectual disability (Section 261a1)
• Having sex with someone incapable of consenting because they are intoxicated.
• Having sex with someone incapable of consenting because they were unconscious, asleep, or otherwise incapable of knowing what is happening (Section 261a4)
• Pretending to be a person you are not to have sex with the victim, and the victim has reason to believe your lie (Section 261a5)
• Alleging you will retaliate against the victim or their loved one if they do not comply, for example, by inflicting bodily injury on them (Section 261a6)
• Threatening to have the victim deported, arrested, or jailed, and the victim has reason to believe you are a public official who can fulfill this threat (Section 261a7)

Put otherwise, the prosecution can charge you with rape when you engage in sex with a person and other specific facts are met. In California, unlawful sex could happen when the incident was without another person’s consent or against their will. That said, it is just as illegal to commit rape through coercion, duress, fear, fraud, trickery, or menace as it is unlawful to do it through direct physical force. Courts consider mental shackles to be just as weighty as material shackles.

Date Rape

Another type of rape crime criminalized under PC 261 is date rape, also called acquaintance rape. This refers to nonconsensual sex that occurs between parties who were or are dating or are voluntarily chilling together. The term date rape seems more informal than typical rape charges. However, these two are the same. Both are prosecuted and penalized under PC 261. 

Voluntary intoxication might negate consent in date rape cases. For example, let us say you engage in sex with a person who willingly consumes sufficient drugs and alcohol to the extent they cannot resist the intercourse. In this case, the prosecution may accuse you of date rape. 

In some cases, it is upon the jury or judge to establish whether, given the facts, the defendant knew or should reasonably have known the victim was too intoxicated to consent to the intercourse. 

On the other hand, involuntary intoxication negates consent. For example, let us say you secretly gave an individual drugs or alcohol that rendered them incapable of resisting or consenting to sex. Then you had sex with that person. In this case, the prosecutors may accuse you of date rape.

Even when the supposed victim and you have had intercourse before, consent might still be a problem. Just because the supposed victim and you have had sex before does not mean they automatically agreed on the incident this time around. This fact alone does not amount to consent without more evidence of consent. However, a judge considers it when establishing whether the victim consented. 

California rape laws provide that all acts of sex must be consensual. That is why even married people can be deemed guilty of raping their spouses. On this note, even when the supposed victim and you are in a daring relationship, you might face charges under 261.5 (statutory rape) if the victim is under 18 years. 

If you learn that someone has accused you of rape or date rape, consult a lawyer right away. Do not engage in further conversations with the police or the accuser. The police may have the accuser make a secretly recorded pretext call to try tricking you into making an incriminating statement. Do not fall into the trap. The only individual you want to speak to is an attorney.

What the Prosecution Must Prove

To convict you of rape, a prosecutor must demonstrate all the facts making up the crime beyond a reasonable doubt. These facts are known as elements of the crime. They will vary depending on the circumstances surrounding the case, though the most prevalent ones include:

• You engaged in sex with a person who is not your spouse
• The person did not give their consent to have sex
• You used violence, fear, force, duress, fraud, threats, or pretense to have the intercourse

A critical element of PC 261 violations is consent. The judge will convict you if the supposed victim never consented to have sexual intercourse. To have consented, an individual must cooperate in doing an act voluntarily and freely and be conscious of the type of act happening. Specific people are incapable of lawfully consenting to sexual intercourse, regardless of what they do or say. These are:

• Overly intoxicated individuals,
• People with severe mental disorders,
• Individuals who are asleep or unconscious

So, it is worth noting that the absence of consent is not just a case where the supposed victim verbally tells the accused they do not consent. 

Also, note that an individual who had agreed to sex can change their mind mid-sex and withdraw their consent. In this case, the person would have to communicate they have changed their minds using actions or words. Provided a reasonable individual under the same circumstances would understand the individual has withdrawn consent, you would be lawfully obligated to stop the sex immediately. If you do not, the person can accuse you of rape. 

Judges consider the facts of every case to establish whether there was consent. The victim need not fight back or physically resist to have communicated an absence of consent.

The burden of proof in rape cases appears to be heavy. However, the judge could still convict you based only on the alleged victim’s testimony. That means it can convict if it comes down to the victim’s word against yours and the jury believes the alleged victim’s testimony beyond reasonable doubt. There need not be any form of medical evidence for a conviction to occur. There also need not be testimony from other witnesses to support the supposed victim’s rape accusations. 

The law provides that if believed, the testimony of one witness is enough to establish any facts. For this reason, you want to hire a lawyer immediately if you face rape charges. 

The Penalties for Rape

California law considers rape a felony violation. Penalties generally include a prison sentence of eight, six, or three years and a lifetime registration as a sexual offender. You can also face a fine not exceeding $10,000. 

The penalties would be more serious if the involved victim were under eighteen years old at the time of the crime. If the rape victim were aged between fourteen and seventeen years, the prison term would be seven, nine, or 11 years. 

If the rape victim were below 14 years, the prison term would be nine, eleven, or thirteen years. Whether the victim lied about their age or you genuinely thought they were older does not count. If the victim sustained significant bodily harm, the judge would also impose an additional three to five years of prison sentence.

A conviction of rape is also considered a strike under the state’s Three Strikes laws. That means if the judge convicts you of another severe felony later, they will double your sentence. Then, if the judge convicts you again of a third severe felony later, you could be subject to life imprisonment.

Courts might not sentence you to probation rather than prison in PC 261 violation cases if the following is true: 

• You used violence or force, or 
• The victim suffered significant bodily injury 

That said, probation remained an option for all rape cases that did not entail fear, violence, or force and where the victim did not sustain significant bodily harm until 2017.

In 2016, California lawmakers changed the law. This was in response to the general public rage over lenient punishment for Brock Turner (a Stanford student found guilty of several charges of sexual assault). As of Jan. 1, 2017, there is no probation, and prison is a must for rape charges where the involved victim was unconscious, asleep, or too inebriated or high to consent. That means most people found guilty of date rape can anticipate serving time in prison, and probation will not be an option. 

Gun Rights

A rape conviction will also affect your firearm rights. California law does not allow a convicted felon to own, possess, or purchase a gun. Since rape crime is deemed a felony, a conviction will turn you into a felon. That means the state will strip you of the right to possess, purchase, or own guns for your entire life. Although you might seek to restore your firearm rights via a governor’s pardon.

Immigration Consequences

A rape conviction can also subject you to immigration consequences. In California, certain crimes trigger immigration repercussions for aliens. These include aggravated felonies and crimes of moral turpitude. 

Rape is considered a crime of moral turpitude. That said, convicted non-citizens will be subject to removal once their sentence ends. Meanwhile, non-citizens convicted of rape are deemed inadmissible to the United States. That means the authorities will deny them entry into the United States. 

Defending Against Rape Charges

Beating a rape case can be challenging. However, you can prevail if you retain a skilled criminal defense lawyer right after your arrest or charge filing. Your lawyer can review the facts and create a defense strategy to win the case. Legal defenses that can effectively convince prosecutors, juries, and judges include:

False Allegations

False accusations occur every time in sexual offense cases. Accusers generally lie out of anger, revenge, jealousy, misunderstanding, or regret. Defense attorneys often depend on victims’ voicemails and text messages to prove their motivation to land you into legal trouble. The lawyers may also subject the victim to aggressive cross-examination on the witness stand to challenge their credibility. 

No Sex Occurred

Rape charges only arise if the accused and the supposed victim had sex. Thus, as a defense, your lawyer can help you argue that whereas you might have committed given acts with the victim, like making out, those acts are not considered sexual intercourse. Except if there were eyewitness accounts or video footage for the occurrence, these cases boil down to a “she said” or “he said” matter. If your lawyer can show the prosecution they have inadequate evidence to show guilt beyond a reasonable doubt, the D.A. might drop or reduce the charges. 

The Victim Consented

Generally, the key element in rape cases is consent. The judge cannot convict you of rape if the victim in question agreed to having sex. Also, they cannot convict if you reasonably believe the other party agreed to the sex. At times, victims would themselves lie to try and support their rape accusations to law enforcement. If that happened, your lawyer could subpoena expert witnesses to examine the victim’s records and testify how their injuries might only have been self-inflicted. The lawyer could also cross-examine the supposed victims and question their credibility. 

Insufficient Evidence

Based on the facts, your lawyer may also be able to assert that there is inadequate evidence that sex even occurred. It could be that the sexual activity never went up to the sexual intercourse stage. If the lawyer can prove insufficient evidence, the prosecution may have no choice but to drop the charges. 

Expunging a Rape Conviction Record

You can expunge a rape conviction under California law if:

• The judge granted you a probation sentence, and you completed serving it, and
• The judge sentenced you to prison, which differs from jail

You cannot expunge your rape conviction record if you have served any prison term. And even if you did serve probation, it will be at the judge’s discretion that you expunge your record. Expungement frees you from all the collateral effects of a felony conviction, including difficulty securing a job or renting an apartment. 

Crimes Related to Rape

Various crimes are related to rape. That is because they share certain elements, and the D.A. can charge you with any of these offenses alongside or instead of rape. Some of them include:

PC 261. 5, Statutory Rape

PC 261.5 defines statutory rape as having sex with someone (who is not your spouse) under eighteen years. Whether the supposed victim consented to the sex and willingly participated does not count. It also does not matter whether the victim even initiated the sexual intercourse. That is because in California, the law deems a person under 18 years a minor, and minors are considered incapable of legally consenting to sex. 

Statutory rape is a wobbler. Wobblers are crimes prosecutors can charge as misdemeanors or felonies based on the case facts. Standard misdemeanor consequences include informal probation, up to a year in jail, and not more than $1,000. Standard felony penalties include felony probation with a year in jail or three years, two years, or 16 months in prison. You can also be subject to a fine not exceeding $10,000.

PC 262, Spousal Rape

Spousal rape, also called marital rape, refers to rape between spouses. PC 262 is the former law that criminalized spousal rape in California State. Assembly Bill (AB) 1171 repealed this law on Oct. 8, 2021. Now, prosecutors charge spousal rape largely as they would rape between non-spouses under PC 261. 

Spousal rape is a felony. It is punishable by a prison sentence of not more than eight years and up to $10,000 in fines. Based on the case facts, the court may also order you to comply with the sex offender registration requirement per PC 290.

PC 264.1, Gang Rape

California PC 264.1 defines the criminal offense of gang rape or rape in concert. This occurs when more than one person works together (acts in concert) to participate in nonconsensual sex with another. Aiding and abetting a person who perpetrated forcible rape is also gang rape. 

Gang rape is a felony. The prison sentence varies based on the victim’s age at the time of the crime. Note that whatever imposed prison sentence is in addition to the prison term for the underlying rape crime conviction. However, note that gang rape is an offense itself and not a sentence enhancement for other crimes. The crime is also a strike under the Three Strikes law and requires sex offender registration.

PC 289, Forcible Penetration With a Foreign Object

Violating PC 289 involves placing an object into another’s anus or vagina by violence or force and without their consent. This crime is a felony. Possible consequences include formal probation, imprisonment for three, six, or eight, and a fine not exceeding $10,000. A conviction will also subject you to the sexual offender registration requirement.

PC 286, Sodomy

The legal meaning of sodomy is sexual contact between one person’s penis and another’s anus. Sodomy is lawful under California law unless done without consent or with a child. Based on the facts, sodomy can either be a felony or a misdemeanor. A misdemeanor conviction carries up to 12 months in jail. A felony carries more than 10 years in prison based on the case. The judge will also require you to register as a sex offender upon conviction. 

PC 243.4, Sexual Battery

PC 243.4 defines sexual battery as touching another’s private parts for sexual abuse, arousal, or gratification. The crime is generally a misdemeanor, though the prosecution can sometimes charge it as a felony. Felony charges would arise if the involved victim had been unconscious, medically incapacitated, or restrained.

 A misdemeanor conviction carries six months in jail, probation, and a fine not exceeding $2,000. The judge will also order you to register as a level 1 sexual offender. A felony conviction carries two, three, or four years of prison, probation, and $10,000 in fines. The judge will also require you to register as a level 3 sexual offer; that is registration for life.

PC 287, Oral Copulation By Fear or Force

Violating PC 287 involves nonconsensual contact between a person’s mouth and another’s anus or genitals. The crime is a felony carrying three to fourteen years in custody based on the facts and a fine of $10,000. Also, you must register as a sexual offender for life. You can face probation instead of prison based on the facts.