California Rape Laws and Penalties

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 What Is the Penal Code for Rape in California?

Rape, in general, is classified as a violent felony. The definition of rape as unlawful sexual intercourse without an individual’s consent is the same regardless of the rape victim’s gender.

  • Examples of the many different situations in which an individual may be charged with rape include, but are not limited to:
  • When an individual uses force, violence, duress, menace, fear, or fraud to engage in sexual intercourse against another individual’s will or without their consent;
  • When a victim is considered to be too intoxicated to consent, and the defendant engages in sexual conduct with them;
  • When an individual engages in sexual conduct with another individual who is physically or mentally disabled to the point that their disability prevents them from consenting to the sexual conduct;
  • When the defendant engages in sexual conduct with an individual who is incapacitated, it means that the victim was unaware that they are engaging in a sexual act.

Examples of the different categories of rape based on the relationship between the defendant and the victim include:

  • Statutory rape: Statutory rape is also referred to as unlawful sexual intercourse with an individual under the age of consent;
    • This definition remains regardless of whether the sexual act was actually consensual. The age of consent varies from state to state but, in general, ranges from 16 to 18 years of age;
  • Date rape: Date rape occurs when the perpetrator commits unlawful sexual intercourse during a social engagement with their victim;
    • Date rape may also occur in situations where the victim has been drugged;
  • Marital rape: Rape can occur within a marriage, as rape is defined as sexual intercourse with a non-consenting party;
    • Marital rape was not historically recognized. However, it is now considered to be a serious crime.

In California, there are specific laws defining rape. Under California Penal Code 261, rape is defined as “any type of non-consensual sexual intercourse occurring from the utilization of fraud, force, or threat of force.” Sexual intercourse is defined as any sort of penetrative act.

How Does California Define Rape by Means of Fraud?

Under California Penal Code Section 261, it is illegal for an individual to have any “non-consensual sexual intercourse accompanied by means of threat, force, or fraud.” Under California law, rape by fraud occurs when an individual intentionally and falsely misrepresents the truth in order to unduly influence another individual into having sex with them.

In order to convict a defendant of rape by means of fraud, the prosecution must prove all of the following elements:

  • The defendant had sexual intercourse with the plaintiff;
  • At the time of the incident, the defendant and the victim were not married;
  • The plaintiff did not consent to the sexual act; and
  • The act was accomplished by means of threat, force, or fraud in order to persuade the victim into engaging in sexual activity with the defendant.

Does It Matter if I Had Consent of the Person or Not?

Yes, it matters whether the defendant had the consent of the other party or not. Under California laws, consent is defined as “cooperation given by the attitude or action of the person of their own free will.”

When an individual is giving their consent, they must provide it with the knowledge of the nature of the sexual act. This means that a defendant could not obtain consent for one action and then engage in a completely different action.

The age of the victim is also an important factor in rape cases. Age of consent is an issue in cases of statutory rape.

Even though the age of consent is an important part of the ability to provide consent, in California, it may result in additional and separate charges. The age of consent in California is 18.

Any adult over this age can be charged with statutory rape if they engage in sexual activities with a minor. In California, a minor is anyone under the age of 18.

An individual under the age of majority may consent to sexual activity with an individual over the age of majority. In that case, it would be considered statutory rape because an individual under the age of majority is considered to be a child, and a child cannot consent to sexual activity.

What Is the Punishment for Rape in California?

The criminal offense of rape is a felony in the State of California. The punishment for felony offenses will depend on the specific circumstances of the case and the age of the victim.

If a defendant did not use violence or force during the incident, they may face up to one year in county jail and probation. If, however, the defendant did use violence or force during the incident, they may face a prison sentence of three to eight years in a federal prison facility.

If the victim was a minor at the time of the incident, the defendant may face seven to thirteen years in prison. In addition, if the victim was under the age of fourteen, the defendant may be sentenced to nine to thirteen years spent in a federal prison.

If the victim sustained great bodily injury, the defendant may face an additional three to five years in prison, criminal fines of up to $10,000, and receive a strike on their criminal record. The amount of time a defendant will be required to serve will depend on the severity of the crime and whether the defendant has any prior convictions for rape.

In certain cases, a rape conviction may result in a life sentence, depending on the factors that surround the case. Penalties and prison sentencing will likely increase if the rape if the rape resulted in the death of the victim.

When Can Someone Sue for Rape in California?

In some cases, a victim may file a civil lawsuit against the perpetrator. In California, an individual may do so even if the defendant has not yet been convicted of the crime.

As long as the victim has suffered a quantifiable loss related to the actions of the defendant, they may file a lawsuit to obtain a damages award. A victim may be entitled to compensatory and punitive damages.

In California, the burden of proof in rape cases will depend on whether the case is criminal or civil. In civil cases, the plaintiff must convince the court or jury that the defendant is liable by a preponderance of the evidence.

This means that it is more likely than not that the defendant engaged in the conduct the victim claims. In these cases, only nine of twelve jurors have to agree that the defendant is liable.

When filing a civil lawsuit for rape, a victim must keep in mind California’s statute of limitations. In rape cases where the victim is an adult, there is a two-year time limit from the date the assault occurred.

When the victim is a minor, the time limits vary. However, in general, an individual would have 40 years to file a lawsuit. If an individual has any questions regarding filing a civil lawsuit for rape, they should consult with a local California attorney.

Are There Any Defenses to a Rape Charge?

There are defenses that may be available for an individual who is charged with sexual assault or rape, including:

  • Suppression of evidence: If evidence such as text messages, emails, phone messages, video, or physical evidence can be suppressed, it can help in the defense of an individual charged with sexual assault;
    • The suppression of evidence is typically based on the assertion that it was collected in violation of a defendant’s right not to be subject to unreasonable searches and seizures under the 4th Amendment to the U.S. Constitution;
  • Actual innocence: Since all defendants are considered innocent until proven guilty in a U.S. court of law, an individual who did not commit the crime can certainly assert that they did not do it;
  • Consent: Sexual assaults often happen in private. If an individual charged with assault can prove that the alleged victim consented to the activity, then this can constitute a successful defense; and
  • Insanity: A legally insane individual is not able to consent to sexual acts. If the individual charged with sexual assault is legally insane, it may serve as a defense.

It is important to note that inebriation is not a defense to the crime of rape for either party. An individual who is under the influence of alcohol is not considered able to provide consent.

Do I Need a Lawyer to Help Me With My Rape Case?

If you are facing rape charges in California, it is essential to consult with a California criminal lawyer. Your attorney will be able to advise you of the charges you are facing, the consequences of a conviction, and the possibility of having your charges reduced.

If you are a rape victim in California, it is important to consult with a lawyer if you are considering filing a civil lawsuit against the perpetrator. An experienced personal injury attorney will be able to help you understand the state’s laws and procedures, help you gather evidence, and represent you in court as needed.


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