Rape/Statutory Rape


Rape (PC 261):

California’s rape statute defines the crime of “rape” as nonconsensual sexual intercourse through the use of threats, force, or fraud. The sexual intercourse needs to be either against that person’s will, or without that person’s consent (such as, having sex with a female who is passed out drunk). For the act to be constituted as rape, it needs to have been accomplished through one of the following: physical force, violence, duress, menace, fear of bodily harm to oneself, fear of retaliation, and fraud. In order for the prosecutor to prove that you are guilty of rape, he/she must prove these four elements of crime: that you engaged in sexual intercourse with another person, that you were not married to that person at the time of sexual intercourse, that the other person did not consent to the intercourse, and that you accomplished the act by one of the means mentioned above.

Penalties (PC 261):

Rape is a felony under California law. If convicted under Penal Code 261 PC, you may be subject to formal probation or 3, 6, or 8 years in a California State Prison. If the victim sustains a great bodily injury, the judge may impose additional years to be served in a state prison. In addition, you may be required to pay up to $10,000 in fines with a possible “strike” on your record, pursuant to California’s Three Strikes Law.

If the victim is a minor (under the age of 18), the possible state prison term goes up to 7, 9 or 11 years. If the victim is under the age of 14, the possible state prison term goes up to 9, 11, or 13 years in prison. In addition, most California rape convictions lead to required (Penal Code 290) sex offender registration. The registration requirement is a duty that lasts for a lifetime.

Legal Defenses (PC 261):

Many innocent people are wrongly accused of rape all too often. The reason is that the accuser needs little to no evidence. Our defense team will make it a priority to dismiss, from the start, any unjust charges. There is also the defense of “consent,” where the alleged victim will change their story, alleging that they did not consent when they initially did consent to the sexual intercourse. Even if the alleged victim purports that they did not consent, if you had a good enough reason to believe he/she had consented, you cannot be convicted of rape. The legal defense of insufficient evidence may also apply in cases where the victim did not seek medical attention and/or there were no witnesses of the act- resulting in the case being a “he said/she said” ordeal. In situations like this, an insufficient evidence defense may apply.

Statutory Rape (PC 261.5):

More commonly referred to as “unlawful sex with a minor,” under California Penal Code 261.5 PC, “statutory rape” takes place when any person engages in sexual intercourse with a person under the age of 18. Regardless if the sex was consensual, or even initiated by the “victim,” the law makes it illegal to agree to unlawful sex with any person under the age of 18 years old. For example, If a pair of high school sweethearts decide to have sex for the first time and one of them is under the age of 18 and the other over the age of 18, that constitutes as statutory rape. The penalties of statutory rape depend on how the prosecutor decides to treat the case (ie a felony or misdemeanor). One of the main factors is the age of those involved; the wider the age gap, the harsher the penalties.