Rape is among the most serious crimes a person can commit, and the penalties for this crime are correspondingly severe, defined under Penal Code 261. Rape is generally understood as when a person engages in sexual intercourse with an individual, if the sexual intercourse was carried out against that individual’s will, or without their full consent. To accomplish this act, the committer of the rape must have used violence, physical force, menace, duress, fraud, or fear of bodily harm/retaliation in order to coerce the victim into the sexual intercourse. Or, an individual may have endured sexual intercourse due to a lack of consent stemming from the fact that the victim was too intoxicated to consent, unable to consent due to a mental/physical disability, or was unconscious to the nature of the act.

While rape is clearly among one of the most sensitive legal topics, and represents a subject that most people would rather not talk about, it is almost assuredly in your best interest to reach out to someone for support. This is especially true if you’re the victim of a rape, as while victims understandably often have a tough time talking about what happened, it is best to reach out to someone not only for your mental health, but also to make sure justice is served. However, you should also reach out to someone if you are under the impression that you’re being unjustly accused of rape, as unfortunately this type of thing does happen. At Domestic Violence Attorney (DVA), we employ lawyers who have handled countless rape cases in the past, and understand how to cope with all of the sensitivities associated with this type of situation. Call 619-393-8588 to dialogue with a lawyer at Domestic Violence Attorney.

Again, while rape is a topic most people would rather avoid thinking about, if you’re involved in a rape case then it’s important that you educate yourself on the relevant law. This webpage will tell you what you need to know about this area of the law, from aspects of proof to the schedule of penalties.

Aspects of Proof

A mere accusation is not enough for somebody to be ruled guilty of committing rape in California, more evidence is required. For a person to be found guilty of rape, a set of facts must be established by the prosecutor. To start, it must be verified that sexual intercourse did indeed occur between the alleged perpetrator and the alleged victim. Additionally, the prosecutor must present proof which shows that the alleged victim unambiguously did not provide consent for the sexual activity in question. Last, it must be shown that the alleged perpetrator accomplished the act using one of the methods described at the end of the first paragraph. The sections below will unpack these aspects of proof in more detail:

The definition of sexual intercourse under California rape law is highly specific, and doesn’t necessarily match up with what many people think of as sexual intercourse. For the purpose of determining whether or not a rape occurred, sexual intercourse is defined as any form of penetration, even if the penetration was only slight or only lasted for a short amount of time. As long as penetration occurred, then it counts as sexual intercourse for all intents and purposes under the law. The occurrence of ejaculation is totally irrelevant in this situation, as has no bearing on if a rape did happen. Also, once the penetration occurs, then sexual intercourse has irreversibly taken place, meaning that there is nothing the committer of the sexual intercourse can do to undo the act of sexual intercourse, even if he/she desists immediately after penetration.

For a sexual act to be determined as a rape, the sexual intercourse must have taken place without the consent of one of the involved parties. For a sexual interaction to be considered consensual, both parties must have agreed to participate freely, voluntarily, and with full knowledge of the true nature of the act. This means that a person cannot consent to sexual intercourse if they are too intoxicated to freely participate in the activity, if they are unable to consent to the activity due the fact that they aren’t fully conscious/awake, or if a handicap makes it impossible for them to possess full knowledge of the nature of the act. Also, unlike with many other states, California has passed legislation requiring affirmative consent, more commonly referred to as California’s yes means yes law. Under this law, those participating in sexual activity must affirmatively express their consent before engaging.

When trying to understand consent more fully, it’s important that you understand how consent operates in a few key scenarios. One of these scenarios is the issue of how consent functions when two people are involved or were formerly involved in an intimate relationship. Opposed to what many people seem to think, the fact that you and another person are or were engaged in an intimate relationship has no effect on the consent when it comes to sexual intercourse. People involved in intimate relationships are still required to consent in the same way that total strangers are required to consent. It is probably a good idea to note here that if a rape takes place between two people who are married, then it wouldn’t be charged under PC 261, but rather under PC 262 as a spousal rape.

Also, just because the alleged victim suggested to the alleged perpetrator that they use a condom doesn’t necessarily indicate consent. This is because a victim could potentially out of desperation ask a rapist to use contraception, in order to avoid contracting an STD or getting pregnant as a result of the rape. However, a request for contraception use is not totally irrelevant, as it can be used as evidence for consent in situations where the issue of consent wasn’t altogether clear. A request for contraception has been used in cases to show the defendant reasonably believed consent existed. A request for contraception just can’t be the only piece of evidence indicating consent.

It also should be explained that someone is allowed to withdraw consent at any point during the sexual interaction, if they initially consented to participate. However, someone is not allowed to withdraw consent internally, without vocalizing the withdrawal of consent. To withdraw consent, the alleged victim must communicate to the defendant that they no longer want to continue on with the sexual intercourse in a manner that would indicate a lack of consent to person with basic reason. If the defendant continues to engage in the sexual intercourse anyway, despite the fact that they received the communication from the alleged victim asking them to cease, then this would constitute a rape according to the laws of California.

A lack of consent from the victim is not all that must be proven for a sexual interaction to be deemed as a rape. For a full violation of consent to have occurred, it must be verified that the defendant was aware or reasonably should have been alert that he/she was acting violation of the alleged victim’s consent. If the defendant can show that he/she reasonably had no idea that a violation of consent was occurring, he/she can’t be found guilty. For instance, if two people participate regularly in sadomasochistic activities, one of them may reasonably think that the activity is fully consensual, even when it isn’t.

Despite what many people seem to think, an alleged victim does not need to actively resist the sexual intercourse in order for it to be viewed as a rape. Resistance certainly can be used as part of a prosecutor’s argument, but a prosecutor is not required to show resistance in order to argue successfully that a rape did occur. Someone can be raped under PC 261 without physically resisting the sexual action in any form. This law was changed because people have come to understand that rape is an extremely traumatic event which may cause someone people to freeze and not actively resist.

In California, legislation has been established to protect the right of rape victims to maintain their privacy, due to the fact that in the past, many victims of rape did not bring their crime to the attention to the authorities out of fear that their identities would be made public. This law stops the courts from releasing information about the rape victim to the public. Additionally, under this law it is illegal to introduce evidence associated with the alleged victim’s sexual history in attempt to prove consent. It is against the law for someone to argue that an alleged victim consented to sexual intercourse just because the alleged victim has engaged in consensual sexual intercourse with a significant number of people in the past.

Legal Defenses

Unfortunately, people are wrongly accused of rape every year in California. While being accused of rape can been damaging in and of itself, there are measures you can take to fight a charge of rape. A proper lawyer, say a qualified attorney from Domestic Violence Attorney, can help you pinpoint the legal defense that works best for your unique case. Here are some of the common legal defenses used in California to fight PC 261 charges.

In order to defend yourself against a charge of rape, you can argue that sexual intercourse never actually occurred. For sexual intercourse to occur, some form of penetration must have taken place, either orally, vaginally, or anally. You may able to claim that while you did engage in certain intimate physical activities, a rape did not occur since penetration was not a part of those intimate physical activities. While you can still be charged with other crimes that criminalize unwanted touching and other forms of unwanted sexual activity, you cannot be found guilty of rape if one of the above described forms of penetration never occurred.

There are a number of legal defense arguments that can be made regarding the subject of consent. If you’re being accused of rape by an alleged victim who claims that he/she withdrew their consent, you can argue that the alleged victim never communicated the withdrawal of this consent, and that you therefore had no idea the sexual intercourse wasn’t consensual. If you’re being accused of rape because the alleged victim was too intoxicated to give consent, you might be able to argue that you were also intoxicated at that time, and that you were also unable to give your full consent. Also, you can argue, even if the sexual intercourse wasn’t consensual, that you were in a position that led you to reasonably believe the sexual intercourse was totally consensual. If you can show that any reasonable person in the same situation as you would have also concluded that the sex was consensual, then you cannot be found guilty.

Sadly, certain people falsely accuse other people of rape occasionally in California. This usually occurs between those who were formerly involved in an intimate relationship, by one person who is jealous or angry at the other. One FBI study found that roughly 10% of rape accusations had no basis. This the results of this study have been backed up by the substantial number of people who have been released from prison in recent years after DNA evidence proved that they were innocent of the alleged crime. For a defendant to prove the accusations against them are false, it is critical that he/she hires a skilled lawyer. This person will know how to use DNA results, physical evidence, lie detector tests, and communication records to demonstrate someone is making false accusations.

It is also true that people are regularly wrongly accused of rape due to the fact that they are mistaken for somebody else. This is most common in situations when a person was raped by somebody they didn’t know personally and wouldn’t be able to recognize easily. Oftentimes poor lighting or the use of a facial mask can contribute to a mistake in identification. Also, police often have the alleged victim pick out the perpetrator from a line-up of suspects, a technique which has been proven to lead to identification mistakes.

Penalties Associated with PC 261 Violations

According to PC 261, rape in California is always charged as a felony, regardless of the circumstances of the case or the defendant’s criminal history. If convicted of rape, you will be sentenced to prison for between 3 and 8 years. In some situations, the judge can decide to grant the defendant felony probation, and require him/her to spend a maximum of one year in county jail, instead of the state prison sentence. The judge will only grant probation in specific situations: if the defendant was found guilty because the victim couldn’t give consent due to a handicap, the defendant carried out the rape by pretending to be someone else, or the defendant carried out the rape by threatening to call upon the authority of a public official.

If the victim suffered a significant bodily injury as a result of the rape, then the defendant may face an additional 3 to 5 years in prison, depending on the severity of the injury, in addition to a fine of no more than $10,000. If the victim of the rape was someone under the age of 18, then you will automatically face a state prison sentence between 7 and 11 years. If the victim of the rape was someone under the age of 14, then you will automatically face a state prison sentence between 9 and 14 years.

Additionally, those people convicted of rape are required by Penal Code 290 to register for life as tier-three sex offender with the California sex offender registry. Failure by people convicted of rape to register as sex offenders is a felony offense under PC 290, and will be met with serious penalties and prison time. In specific circumstances, the person convicted of rape may be able to register as a tier-two offender instead of a tier-three offender. Tier-two offenders are only required to register for 20 years, instead of for their whole lives as is the case with tier-three offenders. This is only possible if the victim was over 18 years old and was only incapable of consent due to a mental or physical handicap.

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