The State of California punishes and prosecutes the sex crime of rape very seriously. If you are charged with California Penal Code 261 PC Rape, it is important that you take the time to understand the legal definition, punishments, and legal defenses associated with the crime. We recommend you read the full section below because it will give you a good idea of what you are up against. Furthermore, we believe our clients should be knowledge about the laws and nuances of the sex crimes they are charged with. It allows us to have stronger and more meaningful conversations that will ultimately help build stronger defenses
What is the Legal Definition of California Penal Code 261 PC Rape?
The legal definition of California Penal Code 261 PC Rape will play an important role in determining your liability if charged with the crime. Therefore, the first thing you should understand is that the legal definition of California Penal Code 261 PC Rape differs from the mainstream conception of rape.
Before you can be convicted of a sex crime in California, the prosecutor must prove all the elements of the sex crime you are charged with. An element is essentially just a fact related to the crime you are charged with. All of these elements need to be proven according to a certain level of certainty. For California sex crimes, the elements need to be proven beyond a reasonable doubt. Note, however, that a prosecutor only has to prove all the elements in an actual trial, where a judge or jury decides a verdict, to get a conviction. You can be convicted of a California sex crime outside of a trial if you choose to accept a plea offer.
The elements for California Penal Code 261 PC Rape are as follows:
- You had sexual intercourse with the alleged victim.
- You were not married to the alleged victim when the sexual intercourse occurred.
- The alleged victim didn’t give consent to the sexual intercourse
- The sexual intercourse was achieved through one of the means discussed below.
Let’s examine each of these elements more closely and discuss some of the most common issues that come up in a California Penal Code 261 PC Rape criminal prosecution. These elements are very important because the issues surrounding them will form the basis of all the negotiations between your Sex Crime Attorney and the prosecutor. For example, if the evidence against you regarding one these elements is weak, your Sex Crime Attorney can push to have your case dismissed. However, if the evidence against you for all of the elements are strong, your Sex Crime Attorney may have to pursue a more procedural strategy where they try to convince the judge some of the evidence should not be admissible in court.
What is the legal definition of Sexual Intercourse?
The definition of sexual intercourse, according to California Penal Code 261 PC Rape, differs greatly from the mainstream conception of sex. You are liable under California Penal Code 261 PC Rape if there was any penetration, even if that penetration was very slight. It is irrelevant whether or not somebody ejaculated or had an orgasm.
As you can tell, California defines sexual intercourse very broadly. As long as penetration occurred, and can be proven, then the first element of California Penal Code 261 PC Rape is met. Furthermore, it does not matter if you started having sexual intercourse with someone, without their consent, and then later decide you are doing the wrong thing and stop the sexual act. If penetration occurred, then you are liable for California Penal Code 261 PC Rape. It does not matter if you stop the sexual intercourse midway for purposes of a guilty verdict. It would probably play a role if you are convicted and the judge is determining the sentence.
What is the “legal consent”?
Again, the mainstream conception of concept differs greatly from legal consent. You may think you have consent to do something, but for legal purposes, you might be out of luck. Consent is an important issue of debate in many California Penal Code 261 PC Rape criminal prosecutions. This is because most rape cases occur in intimate or private places, where the only witnesses are the defendant and the alleged victim. Hence, California Penal Code 261 PC Rape cases often become a “he said/she said” type of situation. Especially in this political climate, juries and judges are more likely to give the benefit of the doubt to the alleged victim. Therefore, it is important to understand legal consent because your guilt or innocence could boil down to this one issue.
Consent is defined as the affirmative accommodation in an action or manner that is given through exercising free will. Another way to look at it is to understand that a person “consents” to an act, such as sexual intercourse, when they participate freely and voluntarily, while understanding the true nature of the act they are getting involved in.
Since the issue of consent often turns into a “he said/she said” situation, the court will rely on other facts to determine whether or not consent was given. Below is list of some of the more common facts that the court will look it to determine whether consent was given.
You are or were romantically involved with the alleged victim.
Although a past or current romantic relationship does not necessarily mean there was consent, it will be taken into account when determining whether or not you had consent when sexual intercourse occurred. Courts will consider past or current dating with the alleged victim, past or current partnerships such as being boyfriend-girlfriend, past or current cohabitating, and being married either in the past or currently.
Note, you cannot be charged with California Penal Code 261 PC Rape if you are currently married to the alleged victim. If the alleged victim is someone you are currently married to, then the prosecutor will likely charge you with Penal Code 262 PC Spousal Rape. This is a separate statue from California Penal Code 261 PC Rape. But the issues, penalties, and defenses are essentially identical. Also, Penal Code 262 PC only applies if you are currently married to the alleged victim. If you were married to the alleged victim in the past but divorced, then California Penal Code 261 PC Rape still applies.
Using or Asking for a Condom or Other Types of Contraception
If the alleged victim requested they use or you use a condom, or any other form of contraception or birth control, this by itself does not mean they gave consent to the sexual intercourse. More evidence might still be needed. However, the fact that they requested contraception is still relevant because it can be used, as a part of a package of evidence, to show they gave consent. Additionally, it might be helpful in establishing that the alleged victim sent confusing messages. In this case, the request for contraception can go to show that you at least had a reasonable belief that you had consent. Reasonable belief in consent is one of the defenses to California Penal Code 261 PC Rape.
What if the victim initially consents but then later reneges?
A California Penal Code 261 PC Rape can occur even if the alleged victim gave consent to the sexual intercourse at first, but later decided they wanted to stop the sexual intercourse midway. Hence, what was consensual, legal sex may suddenly become an act of rape. For an act of legal sexual intercourse to become rape, all of the following things must happen:
- The alleged victim must openly state her opposition to the ongoing sexual intercourse and make at least a single effort to stop it.
- The alleged victim states her opposition in such a manner that would communicate to a reasonable person that they are pulling their consent .
- You go on with the sexual intercourse using force despite the alleged victim’s objection.
Consent and California’s Rape Shield Law
California enacted specialized laws to limit the type of evidence that can be used in California Penal Code 261 PC Rape criminal prosecutions. These laws were constructed to protect victims and their privacy. These laws are often collectively referred to as the Rape Shield Law.
California’s Rape Shield Law dictates that you cannot show consent by bringing up evidence of the alleged victim’s past sexual history, reputation, or behavior. Hence, you are not allowed to bring up the fact that the alleged victim has had many sexual partners in the past to prove that they gave you consent to have sexual intercourse with them.
You must have known that the alleged victim did not give you consent.
The prosecutor has to prove not only that the alleged victim did not give consent, but they also have to prove that you did not actually know there was no consent. Specifically, they have to show that you did not actually believe as well as reasonably believed there was consent given by the alleged victim If they cannot do this, then they cannot convict you of California Penal Code 261 PC Rape in a criminal trial. Whether a belief is reasonable is assessed according to an objective standard. This means the court will consider a belief “reasonable” if an ordinary, prudent person could come to a similar conclusion that you did. Of course, what is reasonable depends on the type of person you are talking to. For this reason, if your case goes to trial, you will want a Sex Crime Attorney who is an expert at picking juries. One jury might think a particular belief was reasonable while another might think it was ridiculous. Picking a jury can make or break a case and will make a difference whether or not you go to prison for violating California Penal Code 261 PC Rape.
The Sexual Intercourse Must Be Accomplished Through A Listed Means
To be convicted of California Penal Code 261 PC Rape, the prosecutor must prove that the unconsented sexual intercourse was achieved through one of the means listed in the law. In general, all of these means are just a form of accomplishing the sexual intercourse without consent of or by overcoming the will of the alleged victim. The most common means listed in California Penal Code 261 PC Rape include:
- Physical Force: such as holding the alleged victim using your strength.
- Duress: The sexual intercourse is achieved through the use of a direct threat or an implied threat. The threat must be strong enough to persuade a reasonable person to do something that they would otherwise not do.
- Menace: The California Penal Code 261 PC Rape is achieved through an act that illustrates the objective of causing injury onto another person.
- Fear of Physical Harm to the Alleged Victim or Another Person: The fear must be both actual and reasonable. If the fear is not reasonable, then you must have had knowledge of the alleged victim’s fear and preyed on it.
- Fraud: Here, you must have either fraudulently persuaded the alleged victim that they are married to you OR you fraudulently persuaded the alleged victim that the sexual intercourse had a “professional” purpose attached to it.
Situations Where Consent Cannot Be Given
The following are common scenarios where the alleged victim cannot give consent:
- The alleged victim was too intoxicated to give consent to the sexual intercourse.
- The alleged victim could not give legal consent because they had a mental or physical disorder that you had knowledge of or should have reasonably knew about.
- The alleged victim was unconscious such that they could not appreciate the nature of the sexual intercourse. This even applies to cases where the alleged victim was sleeping during the California Penal Code 261 PC Rape.
What are the Potential Punishments for Violating Penal Code 261 PC Rape?
California Penal Code 261 PC Rape is classified as a felony. A conviction for California Penal Code 261 PC Rape could lead to up to 6 years in a California state prison.
There are limited circumstances where a judge is allowed to sentence a defendant convicted of California Penal Code 261 PC Rape to only formal probation and not jail time. These scenarios are:
- You were convicted of California Penal Code 261 PC Rape only because the victim was unable to give legal consent because they had an emotional or mental disability.
- You achieved the California Penal Code 261 PC Rape by feigning to be another person.
- You achieved the California Penal Code 261 PC Rape by the use of a threat whereby the power of a public official would somehow be used against the victim.
In these scenarios, the judge has the option of sentencing only formal probation, but they are not required to and could sentence you to prison time. In cases not involving the above three situations, the judge is required to sentence you with prison time.
On top of prison time, you could be sentenced with any of the following:
- If the victim suffered significant physical injury, you could be sentenced to up to an additional 5 years in state prison time
- A fine of up to $10,000
- A “Strike”
If the victim is under the age of 18 years, the potential prison time goes up to 11 years. If the victim is under the age of 14, the potential prison time goes up to 13 years.
In addition, a conviction under California Penal Code 261 PC Rape could subject you to California’s Sex Offender Registry Laws. You could potentially be required to register for your entire life as a third tier sex offender.
What are legal defenses available to dispute a California Penal Code 261 PC Rape charge?
The punishments for a conviction under California Penal Code 261 PC Rape can be severe. Fortunately, there are a variety of legal defenses available to dispute and avoid such charges. It is important to discuss your options with a Sex Crime Attorney so you can find out which defenses might be available in your particular situation. Some common legal defenses include:
You are falsely accused.
Sex crimes are often surrounded by emotion, whether it be anger, jealousy, or confusion. This is why it is not uncommon to see false charges of Penal Code 261 PC Rape. In false accusation situations, it is important to build an evidentiary record on your own and not rely on the police and prosecutor’s version of events. Your Sex Crime Attorney can hire a private investigator to interview witnesses to find holes in the prosecutor’s evidence. Your Sex Crime Attorney can subpoena the victim’s phone and text records, test DNA samples, and even have you take a private polygraph test. The key in these type of cases is to build the evidentiary record so it is difficult, if not impossible, for the prosecutor to prove their case beyond a reasonable doubt.
You Were Mistakenly Identified.
The main reason for wrongful convictions in this country are mistaken identifications by witnesses. This is particularly common in California Penal Code 261 Rape cases. There are a variety of reasons why a person might be wrongly accused of this heinous crime. Fortunately, there are a variety of procedural motions available to exclude eyewitness identifications from the evidence. They key in these type of cases is to highlight why a particular identification was prejudicial. It could be because of poor lighting when the incident occurred. Or it can be a result of biased police procedures in setting up the identification lineup.
What Should You do If You Are Charged With California Penal Code 261 PC Rape?
If you are charged with California Penal Code 261 PC Rape, it is extremely important that you call a Sex Crime Attorney immediately. The earlier you do, the earlier your Sex Crime Attorney can build the evidentiary record in your favor. This is particularly important in rape cases where the evidence can disappear or witness memories can fade. If that happens, it becomes more difficult to build your own story of events and you will be forced to rely on the police and prosecutor’s version.
Our Sex Crime Attorneys will be happy to guide you in this trying time. They will review the specific facts of your case and discuss with you the potential defenses, options, and punishments.