Rape is defined as when a person engages in nonconsensual sex with another person. To achieve this form of sexual intercourse, the perpetrator uses force, threats, or fraud. In some cases, a person can have nonconsensual sex with another person when they are unconscious or are unable to get consent. All these are definitions of how rape can or happens. Rape is a sexual assault that can be performed by either a man or a woman. The law has defined various sexual assault crimes that are all found under rape. Spousal rape under PEN 262, date rape, forceful oral copulation PEN 266c, statutory rape PEN 252.5, and forced penetration by foreign object PEN 289 are all types of rape. The penalties for this kind of a criminal offense are very severe for those convicted. Anyone can be accused of rape, and if found guilty, their lives will be turned upside down. When this happens, you need a strong defense to overcome the charges. Our lawyers at California Criminal Lawyer Group have experience with rape cases and are willing to help you fight these allegations.

 

Defining Rape in California Law

According to PEN 261, rape is when a person engages another person in a sexual act while meeting certain conditions. The first condition is consent. This means having sexual intercourse with another person against their will and without their permission. According to PEN 262, this offense must meet the following conditions to describe it as rape:

  • There was the use of violence or physical force
  • The act was performed under duress. This happens when a perpetrator uses threats to coerce the victim to agree to the act that under normal circumstances, they would not agree to. For instance, a police officer arresting a suspect for a crime and threatens to detain her if she doesn’t agree to have intercourse with him. The person agrees because she does not want to be jailed. This act normally would not have happened, but the victim was under duress from the police officer.
  • There was a presence of menace or threat. The perpetrator threatened the victim with injury, and the victim had reason to believe that he or she will carry out the threats.
  • The victim was afraid of being harmed physically. The victim’s alleged fear needs to be reasonable based on the circumstances. If the fear is unreasonable, the perpetrator must have been aware of the fear of the victim harbors and taken advantage of the situation.
  • The victim was afraid of retaliation, or the perpetrator made threats to kidnap, imprison them falsely, inflict severe pain or injuries to the victim, and kill them among other threats or their loved ones.
  • Fraud may happen when the perpetrator uses fraud to convince the victim they are their spouse. The defendant can also lie to the victim that engaging in intercourse has a professional reason even when nothing like that exists.

When the law talks about there being no express consent or permission from the victim, it means the victim was:

  • Highly intoxicated and not in a position to consent to the act
  • The victim suffers from a mental challenge or a disability physically that the perpetrator is aware of. Because of this, the victim is not in a position to give consent.
  • The victim was in a state of unconsciousness to understand the act. They were probably asleep, were drugged to have the act, or were unconscious. Through all this, the perpetrator was aware of the condition of the victim. However, he or she still went ahead and engaged in intercourse with them.

When a person engages in sexual intercourse with another under the above circumstances, the person can be charged and prosecuted for rape, according to PEN 261.

 

What the Prosecutor Must Prove for a Guilty Rape Conviction

For a person to be convicted of rape in the state of California, the prosecution must make four facts or elements regarding the offense true. These elements are:

  • The defendant engaged the victim in penetrative sexual intercourse no matter how small
  • The defendant was not in a marital relationship with the victim when the offense happened
  • The victim did not give consent to the defendant for the intercourse
  • That the defendant was able to accomplish the sexual act by the use of the various means described above.

It is essential to understand various terms used in the facts or elements of the offense. These terms include:

Sexual Intercourse

A form of penetration, regardless of how slight it is, it is termed as sexual intercourse with regards to rape. For rape to happen, there is no requirement for ejaculation to occur. Intercourse in rape is broadly defined under the law. A defendant may be responsible for initiating sex, but the other party is not willing. However, midway, he or she regrets their act and stops; this will still stand as rape.

Consent

Previously, rape has been defined as when a person engages in sexual acts with another without their consent or permission. Consent under the laws of California is when a person positively cooperates during an act with free will. When an individual gives their consent for sexual intercourse, it means they are aware of the type of the act, and they voluntarily and freely engage in it.

To understand consent, one needs to put into consideration a few things:

Prior Marriage or Dating

Whether the victim was your spouse, engaged or dated, or is even together does not result in automatic consent. There must be evidence of additional consent. Also, when a couple is married, there must be consent for sex to happen. If a spouse accuses the other of having sex with them without their consent, the other spouse can be prosecuted for spousal rape.

Request for contraceptive or use of a condom

If the supposed victim requested the defendant to use birth control or a condom does not result in express permission or consent. There must be evidence that consent was issued. However, this request is not totally irrelevant in your defense. Maybe the alleged victim conveyed to the defendant varied signals. The demand for contraceptives or condoms may have been one of the signals, and the defendant had reason to believe that consent was given. In one of the defense strategies that will be discussed below, when a defendant actually had reason to believe consent was issued, then they are not guilty of rape.

Withdrawn Consent

It is also possible for the supposed victim to having given consent but later withdrawn the consent. This turns an initial consensual act into rape. However, this only happens if the below facts are valid:

  • The supposed victim clearly communicates with the perpetrator that they no longer want to continue with the act and tries to stop it
  • The way the victim indicates their objection is in a manner that a reasonable individual understands
  • Even after the objection, the defendant refuses to stop and continues with the act

 

How to Prove Consent under the Shield Law

The shield law on rape in California is designed to offer rape victims privacy. This rule indicates that a defendant cannot prove consent by bringing evidence of the victim’s sexual past or reputation. What this means is that even when the victim has previously had consensual intercourse with many people, that part of their life cannot be used as evidence. It also means that you cannot use it to indicate that they gave consent to you.

 

The Offender must have been aware of the Absence of Consent

Fortunately for the defendant, it is not sufficient for the prosecution to state that the victim did not consent to the intercourse. The prosecutor must show evidence that the offender did not surely and with reason believe that the alleged victim had given consent. If the prosecutor is unable to prove this, it is impossible to convict the defendant on rape charges in California.

 

Resistance cannot be a Fact of Rape

The law does not require the prosecutor to show evidence that the victim tried to resist the intercourse physically. Although this was important previously, the requirement was done away with because of the understanding that various people have different reactions to trauma. This fact can also be used to indicate that because of a lack of reaction from the victim, the defendant had reason to believe the sex was consensual.

 

Who the Laws on Rape Apply to?

Typically, most people assume that men are the only ones capable of raping women. However, this is entirely not true. The laws of rape in California apply to the two genders. A woman can threaten a male individual into sexual intercourse. When this happens, the woman is charged with PEN 261 violations.

A woman can also assist a man to have nonconsensual sex with another woman. If this happens, the woman can be charged with aiding and abetting. Under the California law, being an aider or abettor is a principal in crime, and the perpetrator receives penalties like they directly committed the offense.

 

Penalties for PEN 261 Violations

Under California law, rape charges are prosecuted as a felony. When a person is convicted of the offense, the penalties may include state imprisonment for three or six or eight years. In some cases of sexual assault, the court may sentence the defendant to one-year formal probation and a county jail time of a year. This is in consideration of the penalty of state imprisonment.

However, for a court to make this kind of ruling, one of these must be true:

  • The only reason the defendant was found guilty of the offense was that the victim could not consent because of a disability
  • For the defendant to successfully commit the act, they were able to pretend to be a person known to the victim
  • The defendant used threats of authority to get the victim to agree to the act; the judge equally considers the case and believes that giving probation is serving justice to the victim.

If the victim sustained significant injuries to their body during the act, the defendant might be sentenced to a further 3 to 5 years of state imprisonment. A guilty verdict will also cause the defendant to pay a cash fine of not more than $10,000. Additionally, the defendant may get a strike on their record based on the law of three strikes in California.

When the victim of the rape offense is a child, the maximum jail time is increased. If the minor is below 18 years, state imprisonment may go to 7 or 9 or 11 years. When the minor is below 14 years, imprisonment goes to 9 or 11 or 13 years in state prison.

In addition to the above-outlined penalties, a rape conviction will require the defendant to register as a sex offender, a tier-three offender. When one registers as a sex offender, it goes to your lifetime record and can have serious consequences. Most rape defendants are expected to register under tier three that requires the defendant to remain a registered offender all their life. If a defendant fails to register under PEN 290, they will be charged with a felony.

Regardless of all this, there is some good news for the defendants because of different available legal defenses. With an experienced criminal attorney in San Jose, one can be able to fight these allegations and have a favorable judgment.

 

Possible Legal Defenses for Rape Charges in California

Unfortunately, very little evidence is required from an alleged victim to accuse another of rape. This fact has resulted in innocent individuals being accused of falsely and prosecuted for the rape offense. However, there are various legal defenses that your attorney can use to get a favorable outcome. Some of these defenses are:

Falsified Allegations

Like most sex offenses in California, rape accusations can be falsely initiated. A person can launch the accusations because they want revenge, are angry, or jealous, or have other motives that are emotionally driven. It is not easy to indicate the number of false rape accusations; however, according to the FBI, about 10% of sexual assault or rape cases are baseless.

Consent

Should the victim have given consent, then they cannot accuse the defendant of rape. Even when the victim later changed their mind and did not communicate the same clearly to the defendant, it is not rape. Withdrawn consent must be clearly demonstrated for the defendant to understand the position of the victim.

Additionally, if the supposed victim did not give consent, but the defendant had reasons to believe consent was given, the defendant cannot be found guilty of rape. The defendant has a right to acquittal if they can prove that they had reason to believe that the alleged victim gave consent.

Lack of Sufficient Evidence

When the supposed victim sought no medical attention, the prosecution may lack physical evidence supporting the allegations of rape. Similarly, lack of witnesses that heard or saw the act may result in she said/he said accusations. In such a case, your lawyer can use the lack of sufficient evidence as a defense. In most cases, prosecutors have a hard time convincing the court of rape allegations if the available evidence is the testimony of the victim, and it is not supported.

Mistaken Identification by a Witness

Most rape convictions are a result of mistaken identification of the defendant by an eye witness in California. If the victim of the alleged rape does not know the alleged perpetrator, it may be impossible to identify them accurately. Various circumstances can contribute to making it impossible to give accurate identification. Some of these are:

  • If the location where the alleged assault happened had poor lighting
  • If the assailant had put on a face mask
  • If the alleged victim is prejudiced against a person or during a police line-up, among others.

These factors, if not well considered, can result in wrongful accusations that can result in damaging consequences.

 

Related Rape Offenses in California

The state of California has also addressed various sex offenses that are closely related to PEN 261 rape violations. A number of these offenses can be prosecuted alongside rape charges in California if the victim claims the sexual acts, as well as intercourse, occurred.

Below, we discuss the various related rape offenses in California:

Pen 261.5 – Statutory Rape

The law defines having sex with a minor or an underage person below 18 years as statutory rape. The law states that a minor cannot give consent. As a result, a grown-up that engages in sexual intercourse with an underage person, even when they gave permission, is charged with statutory rape.

In California, statutory rape is charged as a wobbler offense meaning the defendant can face prosecution as felony or misdemeanor charges. Depending on the accusations and difference in age between the minor and the defendant, the penalties and charges differ.

PEN 288a – Oral Copulation

Similar to rape allegations in California, forceful oral copulation happens when a person uses force or threats, fraud, and menace to force another person into oral sex. Forcing a person to engage in oral copulation will get a person prosecuted with felony offenses. If a conviction happens, the penalties are very severe. The defendant is likely to be imprisoned in state prison for 3 or 6 or 8 years.

PEN 243.4 - Sexual Battery

This criminal offense happens when a person touches intimate parts of the victim for sexual gratification, abuse, or arousal without consent from the victim. When sexual assault occurs but intercourse fails, prosecutors will charge the defendant with sexual battery charges. This crime is a wobbler offense. Based on the circumstances the offense was committed, the defendant can be charged with a felony or a misdemeanor.

PEN 288 – Lewd Acts with a Child

Violations of PEN 288 occur when an adult touches a minor below 15 years in some parts of their body for sexual gratification. Lewd or lascivious deeds with a child can also occur when an adult makes a child touch themselves or others for sexual pleasure. 

The crime can be prosecuted as a felony or a wobbler under California law. This is dependent on the nature of the offense and the age of the victim. Additionally, the relationship between the victim and the defendant, and the highest sentence that can be issued is also considered.

If the defendant is found guilty of a felony, they will face jail time in state prison for 3 or 6 or 8 years. The court can also decide to issue formal probation to the defendant and or ask them to pay a fine not exceeding $10,000. If bodily injuries were inflicted to the minor during the act, the defendant could face up to life imprisonment. Violations against PEN 288 carry severe penalties. If you find yourself accused of this, getting a criminal lawyer for your defense is crucial.

When a person is facing rape charges and the victim is below 15 years, the prosecution is likely to charge them with violations of PEN 288 alongside the rape charges.

PEN 262 – Spousal Rape

This is similar to violations of PEN 262 on rape. However, a clear distinction exists where the supposed victim is the spouse of the defendant. The punishments for a person found guilty of spousal rape are similar to those of PEN 262 rape violations.

 

Date Rape

This is another variation to typical rape in California under PEN 261, but it is not a distinct crime. This crime happens when the supposed victim and defendant are dating or spend time together voluntarily. If a person is accused of date rape, they face similar penalties as those of typical rape violations in California.

 

Forced Penetration by the Use of Foreign Object 

Forced penetration using foreign objects is found under PEN 280. The charges are similar to those of typical rape charges, with the difference being that penetration is by use of a foreign object, not a sexual organ. Penetration can be by the use of hand, dildo, stick, finger, or other objects.

If a person is found guilty of this offense, the punishments are very severe as they are similar to the ones of ordinary rape violations in California.

 

Find a California Criminal Lawyer Near Me

Charges of rape are serious ones, and if a person is convicted of them, their life gets turned upside down. Many times rape allegations may be falsified or are on mistaken identity. Without a lawyer, one would risk getting convicted of the crime. At California Criminal Lawyer Group, we have extensive experience in rape cases and are committed to giving you the best defense for a favorable outcome. Call us today at 408-622-0204, and we will gladly advise you and make an appointment to discuss your case.