Rape

You could face charges for many sex crimes in California, and rape is among the most serious. California Penal Code Section 261 PC defines and punishes rape crime. A 261 PC violation involves having non-consensual sex with someone else using fraud, force, or threats. Under California law, for the prosecution to charge you with rape, you must not be married to the victim.

However, this does not suggest that raping your spouse won’t have you charged. Raping someone you are married to is a criminal offense under California PC 262. Penal Codes 261 and 262 violations carry similar crime elements. The prosecutor must prove these elements beyond a reasonable doubt before the court can find you guilty.

Like facing other sex crimes charges, facing a rape charge draws a lot of stigma from the public to the media houses and the jury. Therefore, facing the charges alone means you could lose and be severely punished under felony offense. Possible punishment for this felony crime includes lengthy prison sentences, hefty fines, sex-offender registration, or felony probation.

You want to hire a reputable defense attorney to fight the charges and have them dismissed or lowered. At California Criminal Lawyer Group, we have fought rape charges on behalf of our clients. If you face a sex crime charge in Santa Ana, CA, we are on standby to review the circumstance surrounding your case and help you build solid defenses. Since time is of the essence when facing rape charges, our criminal lawyers will spring into action to fight for your rights the moment you contact us.

How California Law Define Rape

The prosecution should prove beyond a reasonable doubt certain elements before the court could convict you of rape. These include:

• You engaged in sexual intercourse with someone else.
• You were not married to the person during the act of sexual intercourse.
• Your victim did not consent to the act.
• You accomplished the sexual act using:

1. Fraud
2. Menace
3. Retribution
4. Duress
5. Fear of bodily injury to the plaintiff or someone else
6. Violence
7. Force

Also, you should note that a rape victim must be alive during the crime commission for the court to find you guilty under PC 261. Often than not, questions arise under these laws on the meaning of how you could commit the offense, for instance, violence or force, sexual intercourse, and consent.

Force, Violence, Etc.

Per the element mentioned above, you must engage in sexual contact through specific ways for the court to find you guilty under PC 261. Note that the terms have certain definitions under the Penal Code. Definitions of these acts include:

• Fraud — The use of trickery or deceit to make your victim engage in a sexual act with you.
• Menace — An act, statement, or threat meant to injure another person.
• Retribution — The act of revenge or paying back.
• Duress — This is a threat type that could be enough to make someone else engage in a sexual act with you.
• Fear of bodily injury — Making someone else afraid of sustaining bodily harm if they do not do as you wish.
• Violence — Acts that include the intent to kill or cause harm.
• Force — Use of physical force to subdue someone else’s will.

Sexual Intercourse

Under Penal Code 216, sexual intercourse refers to any penetration of the genitalia or vagina by the penis, even in the slightest form. The law does not require you to ejaculate for the act to be deemed an act of sex.

Consent

Consent occurs when someone acts voluntarily and freely and is aware of the act’s nature. The consenting partner could change their mind amid the act.  The court can only find you guilty as a defendant if the victim did not consent to sexual intercourse. Should this occur, the sexual intercourse becomes non consensual if:

• Your victim communicated to you that they object to the sexual intercourse acts and tried to stop you from proceeding to perform the act.
• Your victim communicated to stop the act through acts or words that a reasonable person could have understood as showing the lack of consent.
• You forcibly proceeded with the intercourse act even after the victim’s objection.

Also, the law does not require that the victim fight back or physically resist when communicating the lack of consent.

For example, Mike and his lover are involved in a fight, and Mike storms out of the house to calm down. After his girlfriend, Hellen, is left behind, she invites Keith to the house and begins having sex with him. While having sex, Mike’s girlfriend tells Keith they should stop the act as she feels bad about cheating on Mike. Keith does not stop and overpowers  Hellen, where he continues having sex with her.

In this incident, Keith could face rape charges. Even though Hellen could have initially consented to have sex with Keith, she later asked that they stop. Hellen communicated a clear message to Keith that a reasonable person would understand that it meant “no consent.” Keith is already guilty, even if Hellen never shoved him in any manner.

Particular circumstances could show that the victim did not give consent. For example, Joyline is a sex commercial worker. Fred approaches her on the street, and they agree to have sex. They both leave in Fred’s car and drive to a nearby park. The duo jumps in the backseat, where Fred draws a pocket knife and places it against Joyline’s ribs. Joyline begins to cry while begging Fred not to cause harm to her. Fred asks Joyline to cooperate, or he will stab her. In fear of harm, Joyline allows Fred to have sex with him while crying.

In the above incident, Fred is guilty of rape. Even if Joyline did not fight Fred back, there is enough evidence that she did not consent.

Specific People That Cannot Give Consent

Per California PC 261, particular persons cannot consent to the act of sex. If you engage in a sexual act with them, you are accused of rape crime. Examples of people who are deemed not able to consent to sex are:

• A victim who is too intoxicated to give consent.
• A victim who is physically or mentally incapacitated.
• An unconscious person.
• Someone asleep during the sexual act.

Are There Legal Defenses?

California law allows you present legal defenses to fight rape allegations against you. In California, the prosecuting agency bears the burden to prove you committed rape beyond a reasonable doubt before the juror can find you guilty during the trial. To cast doubts on or fight the district attorney’s evidence in court, your defense lawyer could use defenses like:

Consent

The court could not convict you if the alleged victim consented to have sex with them. You are not guilty of rape if you had a reasonable belief that the plaintiff gave consent to engage in sexual intercourse with them.

Example: After finishing their date, John and Jane drive to John’s apartment and start making out. One thing leads to another, and they begin having sex. In the middle of sex, jane begins to feel uneasy and wants to leave.

If Jane accuses John of rape, the court cannot convict him since the facts show that he had a reasonable belief that Janee gave consent to have sex.

No Sexual Intercourse

Per California law, two people must have sex for a rape charge to hold water. With the help of your lawyer, you could fight the allegations against you by claiming that the act between you and the plaintiff did not amount to sex. You could use this particular defense if you only kiss the victim without penetration.

Falsely Accused

In California, many defendants are facing false accusations for sex crimes. These cases include rape ones. The plaintiff could falsely accuse you of the crime because of anger, revenge, or jealousy. You could use this defense when facing a false rape accusation or are unjustly blamed.

Possible Penalties For Violating Penal Code 261 PC

California law considers raping a felony crime. If the judge finds you guilty of the crime, possible sentencing include:

• Serving time in prison for up to 8 years.
• Formal/ felony probation.

The court could add three to five more years to your prison sentence if you inflicted serious bodily harm to the victim during your crime commission. Other factors that could make the court increase your prison sentence are:

• Raping a minor who is under 18 years. If found guilty, you could serve not over 11 years in prison.
• Raping a minor who is under 14 years. If found guilty, you could serve not over 13 years in prison.

The court could also require you to register as a sex offender for life.

Will A Person Convicted Of Rape Be Deported?

A rape conviction could come with negative immigration repercussions. Under California law, rape is a crime involving moral turpitude (CIMT). If you face a rape conviction and are a non-citizen, you could be considered inadmissible or deported.

Expunging a Rape Conviction

First things first! You can only expunge your rape conviction if the court awards you felony probation. However, California law prohibits expungements if you receive prison time. The rule is opposed to jail terms in county jail. This means that the court does not allow expungement for rape cases if sentencing results in prison sentences. However, a rape offense, though, could be expunged if the judge sentences you to probation instead of prison.

How a Conviction Affects Your Gun Rights

If convicted for rape, your gun rights are adversely affected. Under California law, convicted felons are not allowed to possess or own guns. Because rape is considered a felony crime in California, your conviction will strip away your gun rights.

Can A Victim Sue For Rape?

Per personal injury law, sexual assault victims can file lawsuits against perpetrators. As a defendant, your victim could sue you for damages like:

• Lost earning capacity
• Medical bills
• Psychological counseling
• Lost wages
• Paint and suffering
• Anxiety and insomnia
• Punitive damages in egregious cases

Also, a victim could sue an attacker for sexual assault damages even though the judge didn’t sentence the aggressor during the trial.

Are There Related Offenses?

The following criminal offenses are deemed as “related” because they are often charged together with or in place of PC 261. Also, these criminal crimes entail common elements that the prosecuting agency must prove beyond a reasonable doubt in court:

Statutory Rape, PC 261.5

For the court to find you guilty of a PC 261.5 violation, the prosecution must prove that:

• You had sexual intercourse with someone else. Any penetration level constitutes sexual intercourse regardless of how slight, even if there is no ejaculation.
• You were not married to your victim during the crime commission. Note that you could face charges even if you are married to a minor.
• During the crime commission, your victim was a minor (below 18 years). In California, someone is considered a year older at 12.01 am on their birthday.

Penal Code 261.5 PC is a wobbler, and the prosecutor has the jurisdiction to charge you with either a felony or misdemeanor. Particle circumstances determine how the crime could be charged and the potential penalties. These include:

• You face a misdemeanor charge if you are not older than the victim by three years or more.
• You face a misdemeanor or felony charge if three years older than the alleged victim.
• You face a misdemeanor or felony charge if you are 21 years older and your victim is below 16 years during the crime commission. Note that potential felony sentences for this circumstance are the severest of the three circumstances above.

Potential misdemeanor penalties are misdemeanor probation, serving up to one year in county jail, and paying a maximum of $1,000 in fines. Punishment for felony statutory rape includes formal/informal probation with a maximum one-year county jail sentence.

Another possible penalty is serving time in prison for 16 months, two or three years. If you were 21 years old and the victim was below 16 years, the penalty could be two, three, or four years in prison. The court could also order you to pay a fine that is not over $10,000.

With the help of your lawyer, you could use various legal defenses to fight your charges. These defenses include:

• False accusation. Like other sex crimes, statutory rape is ripe for false accusations. Many plaintiffs initiate rape charges out of revenge and anger.
• You had a reasonable belief that your victim was above 18 years. The court cannot convict you of statutory rape crime if you honestly believe that the victim was more than 18 years. You could use various pieces of evidence to support your defense, for instance:
  • The victim made statements saying that they were more than 18 years old.
  • The victim’s general appearance and attire appear to be an adult.
  • You met the victim at an adult venue or party.

Sexual Battery, PC 243.4

Per PC 243.4, sexual battery involves touching someone else’s private parts without their consent for sexual gratification, arousal, abuse, and arousal. According to Penal Code 261 PC, sexual intercourse or actual penetration are not actual elements in sexual assault cases. Also, you could face sexual battery charges even though you are in a sexual relationship with the victim.

In California, sexual battery is considered a misdemeanor. However, the court could convict you for a felony crime if aggravating factors exist. Sexual battery remains a misdemeanor if you touch someone else’s private parts against their consent for sexual abuse, arousal, or gratification. Possible punishment includes:

• Serving time in county jail for not more than six months.
• Paying a fine of not more than $2,000. If the victim was your employee, you could pay a fine of not more than $3,000.
• Summary/ informal probation for not more than five years. A probation sentence includes:
  • Community service.
  • Completing a program meant to help those with sexual compulsion or abuse issues.
  • Registering as a tier one sex offender for not less than ten years per PC 290.
  • Completing a batterer’s education program.

Your attorney could help build solid defenses to fight your sexual battery charge. Common legal defenses are:

• False accusations. Since sexual battery accusations do not require bodily harm, someone else could easily accuse you of sexual battery without actual evidence. Because of this, alleged victims accuse innocent people of the crime driven by anger, revenge, or jealousy.
• Insufficient evidence. The prosecuting agency bears the burden to prove beyond a reasonable doubt that you committed sexual battery. If you hire a competent lawyer, they could cast doubts on the prosecution’s evidence to show that there isn’t enough evidence for a sexual battery charge to hold.
• The judge could not convict you of sexual battery if the victim gave consent. Also, if you reasonably believed that the touching was consensual, the court cannot find you guilty of sexual battery.

Spousal Rape, PC 262

Spousal rape occurs when you have sexual intercourse with your spouse without their consent. In marriage, a PC 262 violation happens when:

• You use violence, force, sexual abuse, duress, fear of physical harm.
• Your victim cannot resist because of medication, alcohol, or drugs.
• Your victim is unconscious of the goings-on. For instance, they were defrauded or asleep.
• You threatened to kill, injure, or kidnap the victim or someone else if the victim refused to have sex with you.
• You persuaded your spouse that you are a public official and would arrest, imprison, or deport them if they refused to have sexual intercourse with you.

Also known as marital rape, spousal rape attracts various penalties, including:

• Imprisonment for not over eight years.
• Paying a fine that does not exceed $10,000.

Also, the judge could require that you register as a sex offender depending on your rape case’s circumstances as provided for under PC 290.

You have the right to fight your charges using various legal defenses like:

• False accusation. Cases of plaintiffs making false allegations of spousal rape to the police are common in California. Accusers do this out of revenge or jealousy. You could tell the court that the alleged victim unjustly blamed you for rape.
• Not a spouse. Per the law, marital rape only occurs if the victim was married to the defendant. However, you could still face rape charges.
• Consent. You would face conviction if you had sex with your spouse against their will. If you had consent from your spouse, you could prove it in court and have your charges dismissed or lowered.

Forcible Oral Copulation, PC 287

Penal Code 287 provides for the crime of forcible oral copulation. You are said to violate PC 287 if you make contact between your mouth and someone else’s intimate parts without their consent through threats, fear of injury, menace, duress, or force. You could also face charges if:

• You orally copulate with someone who is too intoxicated to resist.
• You orally copulate with someone unconscious of the act’s nature.
• You orally copulate with someone who cannot legally consent due to a mental condition or disability.

If found guilty of a PC 287 violation, potential punishment is:

• Formal probation.
• Three, six, or eight years in prison.
• A maximum of $10,000 in fines.

Find a Santa Ana Criminal Attorney Near Me

California law considers rape a serious criminal offense. You face charges for PC 261 violation if you have non-consensualnon-consensual sexual intercourse using fraud, threats, or force. Rape charges hold water if your victim was unconscious or couldn’t consent. Even if you didn’t use physical force, you could face rape charges if the victim was intoxicated, mentally or physically disabled to offer lawful consent.

Rape charges carry possible penalties like lengthy prison sentences, probation, and sex offender registration. Other negative impacts to your life include deportation, being termed inadmissible if you are a foreigner, losing your job, and gun rights.

Avoid repercussions that come with rape charges by hiring a reputable criminal defense attorney. At California Criminal Lawyer Group, we offer A-class legal presentations to clients facing rape and other sex crime charges. If you or a loved one faces arrest for a Penal Code 261, contact our experienced Santa Ana defense attorney for a free consultation.

We handle each case, especially because there is no one-size-fits-all defense. Since every case is fact-specific and the outcome hangs on the circumstances surrounding your crime, we recommend that you call our law office at 714-844-4151. We will discuss the details of your charges, review legal options, and help have your charges dismissed or lowered.