CALIFORNIA RAPE LAW – Penal Code Section 261

California Defense Attorney-Sex Crimes - Rape

Under California law, while there is no consent of the other party for sexual intercourse, it is considered rape. The convicted can face various penalties ranging from three (3) to eight (8) years of prison time. There are different defenses applicable for the crime of rape under California law: consent of the party, misinformation, false accusations, etc. That is why it is essential to have an experienced and aggressive lawyer who can help you against charges and get the best possible outcome for you.
Below, The Margarian Law Firm will introduce you the main elements of the California Rape Law. Moreover, in the resources of our site you can find detailed information about different kind of Sex Crimes in California.

1. Legal Definition of Rape under California Penal Code
2. Elements of the Crime of Rape in California
3. Legal Defenses to the Rape Accusations
4. Penalties under California Penal Code Section 261
5. Rape-Related Crimes in California
6. Related Articles

Additionally, we are ready to provide answers to your initial questions concerning sex crime charges in California for free.

1.  Legal Definition of the Rape(California Penal Code 261 PC)
California Penal Code Section 261 defines rape as an act of sexual intercourse which can be accomplished by actual force, fear of force, fear of immediate and unlawful bodily injury or duress as well as against an unconscious or sleeping person, against a person with a mental disorder, or using false pretense or threat.
Sexual intercourse means any penetration of the vagina or genitalia by the penis and it does not matter how slight for the purpose of sexual gratification. Note: ejaculation is not required.
To give consent to the sexual intercourse, a woman must act freely and voluntarily and know the nature of the act.
Example: Nataly has mental decease and John tells her that he will show her a new game. He accomplishes penetration into her vagina without any objection from the side of Nataly. In this case, it cannot be considered that Nataly gave her consent because she did not understand the nature of John’s actions.
It should be noted that a woman can change her consent during the sexual intercourse. The act committed after it is supposed to be rape. In this case, the act of intercourse becomes illegal if:
1. The defendant was informed that she objected the intercourse and he did not stop the act;
2. Her objection was communicated through words or acts that a reasonable person would have understood as showing her lack of consent;
3. Despite her objections, the act continued.
According to California Penal Code Section 261 (a)(1), it is a felony to have sexual intercourse with a person with whom you are not married and when the victim cannot give the consent because of mental disease or a developmental or physical disability. The crime is considered to be committed if the offender knew, or should have known, of it.
NOTE: if the perpetrator rapes the victim, then he stops and a little bit after starts again, the prosecution can require to convict the defendant of two charges and the defendant can be sentenced of multiple rapes.

REMEMBER: California Rape Law is applicable to men and women. Generally, we think that only men can rape women. However, under California law, the acts of threating or forcing a man to have sexual intercourse by woman can be charged under California Penal Code Section 261 as well.
A woman helping a man to rape another woman can be charged with “aiding and abetting”. Under California law, the aider and abettor is charged similar to the principal of the crime. Thus, it is considered that the aider or abettor personally committed the crime.

2. What Must the Prosecutor Prove in Order to Find the Defendant Guilty of Rape in California?
In order to prove that the defendant is guilty of rape, the prosecutor must establish the following facts:
1. There was sexual intercourse between the defendant and a woman;
2. They did not be married to each other at this time;
3. The woman did not give her consent to the sexual intercourse;
4. The intercourse was accomplished by means of:
– force or fear,
– violence, duress, menace, or fear of immediate and unlawful bodily injury to the woman or to someone else,
– future threats of bodily harm,
– threatening to revenge in the future against the woman or someone else when there was a reasonable possibility that the defendant would carry out the threat.

It should be noted that a threat to retaliate is a threat to kidnap, falsely imprison, or inflict extreme pain, serious bodily injury, or death, threatening to use the authority of a public office to incarcerate, arrest, or deport someone. Mainly, it can be carried out by a public official. Under this norm, a public officer is considered to be a person employed by federal, state, or local government who has authority to incarcerate, arrest, or deport. It is crucial that the woman had reasonably believed that the defendant was a public official even if he was not.
The defendant cannot be found guilty of rape if he actually and reasonably believed that the woman consented to the intercourse. It is up to the prosecutor to prove beyond a reasonable doubt that the defendant did not actually and reasonably believe that the woman consented.
Resistance is not considered to be an element of the rape crime. It can happen that because of shock the woman cannot resist the penetrator but even in this case there was no consent to the sexual intercourse. That is why resistance is not important for qualifying the act as rape under California law.

3. How Can I Defend California Rape Accusations?
It can happen that completely innocent people are accused of rape. Your defense attorney can use various legal defenses in order to get the best possible outcome for you. Below, you can find some of them:
False accusations
Plea bargain and dismissals
State of insanity
False confessions
Mistaken Identity
– Consent of the partner.

4. What Are Penalties for Rape Crime in California?
In California, the crime of rape is a felony. The convicted of this crime can face one or all of the following penalties under California law:
– Summary or formal probation;
– Three (3), six (6), or eight (8) years in state prison;
– A fine up to $10.000;
– A possible “strike” on the defendant’s criminal record according to California Three Strikes Law.

Additionally, the convicted can be requested to register in the Megan’s list as a sex offender for lifetime.

Have you or a loved one been accused of rape in California? The Margarian Law Firm aggressively protects the rights of criminal defendants in California. A person is presumed innocent unless and until he or she is proven guilty beyond a reasonable doubt in a court of law. Direct approach with our clients allows us to easily obtain dismiss or reduction of the charges. Additionally, we provide a flat fee agreed upon before we begin. Feel free to contact us!

You may file your request online, by telephone or by mail. 818-553-1000


5. California Rape-Related Crimes?
California rape law, besides “simple” rape, includes the following rape-related crimes:
Statutory Rape(California Penal Code 261.5 PC),
– Spousal Rape (California Penal Code 262 PC),
– Date Rape,
Oral Copulation by Force( California Penal Code 266c PC)
– Forcible Penetration with a Foreign Object (California Penal Code 289 PC).

6. What Are Sex Crimes in California?
There are a variety of sex crimes that fall under the umbrella of California law, including:

California Sex Crimes

Statutory Rape


Engaging in or Soliciting Lewd Conduct in Public – California Penal Code 647(a)

Oral Copulation by Force or Fear

Sexual Assault Laws

Pimping and Pandering Laws

Prostitution & Solicitation Laws

Internet Pornography

Sex Offender Registration

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