Penal Code § 261 PC is the California statute that defines rape as the use of force, threats, or fraud to have non-consensual sex with another person. A conviction is a felony usually punishable by three to eight years in prison and registration as a sex offender.1
Five key things to know about California rape laws are:
- Victims may be unable to give legal consent to sex if they have a mental disorder, are intoxicated, or are unconscious.
- Common defenses to PC 261 charges are that the victim consented, that you were falsely accused, or that no sexual intercourse occurred.
- A sexual assault conviction will strip you of your firearm rights for life unless you receive a governor’s pardon.
- Rape convictions can be expunged from your record only if you were not sentenced to California State Prison and you completed felony probation.
- The criminal sentence for sexual assault under PC 264 is more severe if the victim is a minor:
|
Age of Rape Victim |
California Felony Penalties |
| 18 years old and older |
|
| 14 to 17 years old |
|
| Under 14 years old |
|
Examples of Rape
- frightening a woman into having sex by threatening to hurt her parents.
- having sex with a man who is mentally disabled, even if he seems agreeable to it.
- threatening to kill a man unless he has sex.
- having sex with someone after drugging them without their knowledge.
Note that if you contact us right after your arrest, we can reach out to the D.A. immediately through a “prefiling intervention” and try to show them that the allegations against you are baseless. If we are successful, we could prevent the D.A. from bringing charges against you at all.
Our California criminal defense attorneys will explain the following in this article:
- 1. How does California law define rape?
- 2. What are the legal defenses?
- 3. Is 261 PC a felony?
- 4. Will I be deported?
- 5. Can a rape conviction be expunged?
- 6. Does a conviction affect gun rights?
- 7. Can a victim sue for sexual assault?
- 8. Related offenses to 261 PC
- Additional resources
The definition of rape under PC 261 is nonconsensual intercourse with another person.
1. How does California law define rape?
California Penal Code 261 PC defines rape (“sexual assault”) as having sexual intercourse with someone who does not consent to it. “Sexual intercourse” means any penetration, no matter how slight, of the vagina or genitalia by the penis; ejaculation is not required.2
Forcible or violent rape – such as by physically holding someone down or hurting them if they resist – is only one of many scenarios that violate PC 261. It is also rape if you accomplish sexual intercourse by:
- claiming that you will retaliate against the person or someone else if they do not give in, such as by physically harming them (PC 261(a)(6));
- pretending to be someone other than who you are, and the person reasonably believes your lie (PC 261(a)(5)); or
- threatening to have the person arrested, jailed, or deported, and the person reasonably believes you are a public official who can carry out this threat (PC 261(a)(7)).
In short, it is just as illegal to commit sexual assault through duress, coercion, menace, fear, fraud, or trickery as it is through direct physical force. Courts take mental shackles as seriously as material ones.3
1.1. What is consent?
A key element of rape under California Penal Code 261 is that the alleged victim does not consent to having sex. To consent, a person must act:
- freely,
- voluntarily, and
- knowing the nature of the act.
Certain people are not capable of legally consenting to sex, no matter what they say or do. These people include:
- severely intoxicated people,
- people with serious mental disorders, and
- people who are unconscious or asleep.4
Judges look to the circumstances of each case to determine whether consent existed. It is not necessary that your partner physically resist or fight back in order to communicate a lack of consent to you.
1.1.1. What about changing your mind mid-sex?
If your partner decides mid-intercourse that they want to stop despite initially consenting, they would need to communicate that they are changing their minds with words or actions.
As long as a reasonable person in your situation would understand that consent has been withdrawn, you would then be legally obligated to stop the intercourse immediately to avoid committing rape.5
False accusations of rape are a defense to sexual assault charges.
2. What are the legal defenses?
Here at Shouse Law Group, we have represented literally thousands of people charged with sex crimes including rape. In our experience, the following three defenses have been very effective with California prosecutors, judges, and juries.
2.1. The alleged victim gave you their knowing consent
You are not guilty of rape in California if the alleged “victim” consented to having sexual intercourse. Further, you are not guilty if you actually and reasonably believed that the other person consented to the intercourse.6
Example: Paco and Isabella go back to Paco’s apartment after a date and begin making out. This soon leads to intercourse. During sex, Isabella starts to think that it might not be a good idea and she wishes to leave. However, she does not say anything to Paco, who proceeds with intercourse. Here, Paco is likely not guilty of sexual assault. The facts show that he could have held a reasonable belief that Isabella consented to sex.
Sometimes accusers wound themselves in an effort to back up their rape allegations to police. If this happens, we can call upon expert witnesses to study their medical records and testify how their injuries could only have been self-inflicted.
2.2. No sexual intercourse occurred
PC 261 charges only apply if you and the alleged victim had sexual intercourse. Therefore, it is a defense for us to argue that:
- while you may have committed certain acts with the accuser such as “making out,”
- the acts did not rise to the level of “sexual intercourse.”
Unless there was video footage or eyewitness accounts of the incident, these cases come down to a “he said/she said” situation. If we can show the D.A. that they have insufficient evidence to prove guilt beyond a reasonable doubt at trial, they may be willing to reduce or drop the charge.
2.3. You were falsely accused
Fake allegations happen all the time in California sex crime cases. Accusers typically lie out of:
- jealously,
- revenge,
- anger,
- regret, and/or
- a misunderstanding.
We often rely on accusers’ own text messages and voicemails to show their motivations to get you into trouble. We can also subject them to aggressive cross-examination on the witness stand to impeach their credibility.
3. Is 261 PC a felony?
Yes, rape is a felony offense in California. Penalties typically include 3, 6, or 8 years in prison as well as sex offender registration for life.
However penalties are more severe if the victim is under 18. Plus the court will impose an additional 3 or 5 years in prison if the rape victim suffered great bodily injury.7
A sexual assault conviction also counts as a strike under California’s Three Strikes system. This means if you get convicted of another serious felony later, the penalty will be automatically doubled. Then if you pick up a third serious felony after that, you get up to life in prison.
3.1. Penalties when the victim is a juvenile
If a sexual assault victim is under 13 years old, the prison sentence is 13 years.
If a sexual assault victim is between 14 and 17 years old, the prison sentence is 11 years.8
It does not matter if you genuinely thought the victim was older or if they lied about their age.
3.2. Probation for sexual assault convictions
California courts may not grant you probation in lieu of prison in rape cases if either:
- you used force or violence; or
- the victim sustained great bodily injury.9
4. Will I be deported?
Yes. Since rape is a crime involving moral turpitude (CIMT), non-citizens convicted of it will face deportation once the prison sentence ends. Meanwhile, foreigners with rape convictions are deemed inadmissible and may not enter the U.S.10
5. Can a rape conviction be expunged?
Sexual assault convictions are expungeable in California if:
- you are awarded and complete felony probation; and
- you are not sentenced to state prison (which is different from county jail).
If you serve any prison sentence for rape, your conviction is not expungeable.
6. Does a conviction affect gun rights?
Yes. Since rape is a felony in California, getting a conviction will strip you of the right to own, purchase, or possess firearms for life. Though you may get your gun rights restored through a governor’s pardon.
Personal injury law allows lawsuits by sexual assault victims in California.
7. Can a victim sue for sexual assault?
Yes. California sexual assault victims can bring personal injury lawsuits against their alleged rapists for such damages as:
- medical bills, including psychological counseling,
- lost wages and lost earning capacity,
- anxiety, insomnia, pain and suffering, and
- punitive damages.
Note that alleged rapists can be found liable in a civil lawsuit even if they were never charged or convicted in criminal court.
8. Related offenses to 261 PC
California crimes related to rape that involve sex acts and sexual abuse are:
- assault with intent to commit a felony (PC 220) – assaulting someone with the further intent to commit a serious sex crime
- sexual assault of the mentally disabled (PC 261(a)(1)) – sexual intercourse with a victim unable to consent due to an intellectual disability
- sexual assault of a person incapable of consent (PC 261(a)(3)) – sexual intercourse with a victim unable to consent because they are unconscious, intoxicated, or otherwise unable to know what they are doing
- sexual assault by fraud or artifice (PC 261(a)(5)) – deceiving a victim to have sexual intercourse
- statutory rape (PC 261.5) – consensual sexual intercourse with a person under 18
- sexual battery (PC 243.4) – touching of another person’s intimate parts for sexual gratification, arousal, or abuse
- spousal rape (PC 262) (repealed under AB 1171) – rape between spouses is now prosecuted under PC 261
- sodomy (PC 286) – sexual contact between the penis of one person and the anus of another when done with a minor or without consent
- oral copulation by force or fear (PC 287) – non-consensual contact between someone’s mouth and another person’s genitals or anus
- oral copulation with a minor (PC 288a) – making contact between the mouth of one person with the penis, vagina, or anus of another person, and one of the people is under 18
- forcible penetration with a foreign object (PC 289) – putting an object into another person’s vagina or anus by force or violence and without consent
- criminal threats (PC 422) – making threats of death or great bodily injury that are intended to (and do) place victims in reasonable and sustained fear for their safety or the safety of their families
- stalking (PC 646.9) – following, harassing, and threatening someone to the point that they fear for their safety
- aggravated trespassing (PC 601) – threatening to injure someone, and then entering their home or workplace without permission
Additional resources
For additional information about California sexual assault laws and help for victims, refer to the following:
- Sexual Violence Resources – List by the California Attorney General of government agencies and other organizations providing information and support.
- California Coalition Against Sexual Assault (CALCASA) – Leading state advocacy group supporting victims and prevention. Key resource for education.
- California Victim Compensation Program – Provides financial assistance to victims of violent crime including sexual assault. State program.
- RAINN – National sexual assault hotline providing free, confidential support for survivors 24/7.
- Victims of Crime Resource Center – Provides information, assistance and referrals for victims of all types of crimes in California.
Legal References
- California Penal Code 261 PC – Rape; “Duress”; “Menace”:
(a) Rape is an act of sexual intercourse accomplished under any of the following circumstances:
(1) If a person who is not the spouse of the person committing the act 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. This paragraph does not preclude the prosecution of a spouse committing the act from being prosecuted under any other paragraph of this subdivision or any other law.
(2) If 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) If a person is prevented from resisting by an intoxicating or anesthetic substance, or a controlled substance, and this condition was known, or reasonably should have been known by the accused.
(4) If 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 any 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) If a person submits under the belief that the person committing the act is someone known to the victim other than the accused, and this belief is induced by artifice, pretense, or concealment practiced by the accused, with intent to induce the belief.
(6) If 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) If 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) For purposes of this section, the following definitions apply: (1) “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 the victim’s relationship to the defendant, are factors to consider in appraising the existence of duress. (2) “Menace” means any threat, declaration, or act that shows an intention to inflict an injury upon another.See also: People v. Young (1987) 190 Cal.App.3d 248; People v. Cicero (1984) 157 Cal.App.3d 465; People v. Griffın (2004) 33 Cal.4th 1015; People v. Iniguez (1994) 7 Cal.4th 847; People v. Mayberry (1975) 15 Cal.3d 143; People v. Williams (1992) 4 Cal.4th 354; People v. Kelly (1992) 1 Cal.4th 495; People v. Carpenter (1997) 15 Cal.4th 312; People v. Ramirez (1990) 50 Cal.3d 1158.
- CALCRIM No. 1000. See also People v. Karsai (1982) 131 Cal.App.3d 224.
- Same. People v. Dearborne (2019) 34 Cal.App.5th 250. People v. Morales (2013) 212 Cal.App.4th 583.
- People v. Dancy (2002) 102 Cal.App.4th 21; and, People v. Manning (2014) 226 Cal.App.4th 1133.
- People v. Ireland (2010) 188 Cal.App.4th 328. See also People v. Barnes (1986) 42 Cal.3d 284. See also In re John Z. (2003) 29 Cal.4th 756.
- People v. Castillo (1987) 193 Cal.App.3d 119; People v. Cardenas (1994) 21 Cal.App.4th 927; People v. Barnes (1986) 42 Cal.3d 284; People v. Dominguez (2006) 39 Cal.4th 1141; People v. May (1989) 213 Cal.App.3d 118.
- California Penal Code 261 PC. California Penal Code 12022.7 PC. California Penal Code 264 PC. California Penal Code 290 PC.
- California Penal Code 261 PC. See also: People v. Harrison (1989) 48 Cal.3d 321; People v. Matute (2002) 103 Cal.App.4th 1437; People v. Jones (1990) 51 Cal.3d 294.
- California Penal Code 1203 PC. See also California Rules of Court 4.414. See, for example, People v. Ramirez (Court of Appeal of California, Fourth Appellate District, Division One, 2006) 143 Cal. App. 4th 1512.
- See, for example, U.S. v. Yanez-Saucedo (9th Cir. 200) 295 F.3d 991.