Question 1

What is the Legal Definition of Rape in PC 261?

Accepted Answer

According to Penal Code 261 PC, the legal definition of "rape" in California law is when an individual engages in sexual intercourse with another person...and certain conditions are met. First off, the sexual intercourse needs to be either against that person's will, or without that person's consent. This means that the act needs to have been accomplished through one of the following: Physical force. Violence. Duress. This is a direct or implied threat sufficient to coerce a reasonable person to perform...or agree to allow...an act which he/she would not otherwise have performed or allowed. Example: Trevor works for US immigration authorities. He tells Luisa, who is an illegal immigrant, that she will be deported if she doesn't have sex with him....so she agrees to have sex with him. This is rape by means of duress. Menace (a threat, declaration, or act that shows an intention to inflict an injury upon another). Fear of bodily harm to oneself or to another. The alleged victim's fear must be actual and reasonable under the circumstances, or, if it's unreasonable, the accused must know of the victim's fear and take advantage of it. Fear of retaliation (a threat to kidnap, falsely imprison, or inflict serious pain, injury, or death upon the alleged victim or another person). Fraud---because the accused either (1) fraudulently convinces the alleged victim that they are married, or (2) fraudulently convinces the alleged victim that the sexual act serves a "professional" purpose even though it does no such thing.

Question 2

What are the Penalties for California Rape?

Accepted Answer

Rape under California law is a felony.  If you are convicted of this crime, the punishment will include three (3), six (6), or eight (8) years in the California State Prison.nnIn some California sexual assault cases, the judge may grant felony (formal) probation and up to one (1) year of the county jail in lieu of the state prison sentence. But as of January 1, 2017, this is only possible if one of the following is true:nnThe defendant is guilty of rape only because the victim was incapable of giving consent due to a disability;nThe defendant accomplished the rape by pretending to be someone else known to the victim; ornThe defendant accomplished the rape by threatening to use the authority of a public official against the victim, AND the case is an unusual one where the judge finds that granting probation will serve the interests of justice.

Question 3

What Legal Defenses Can I Use to Fight a California Rape Charge?

Accepted Answer

To accuse someone of sexual assault, the accuser needs little or even no evidence. This is why innocent people are unfortunately falsely accused of (and wrongfully prosecuted for) rape all too often. The following are examples of some of the legal defenses that are most commonly used to defend against California rape charges: False accusations, Consent, Insufficient evidence, Mistaken eyewitness identification, among others...

Question 4

How Does the Prosecutor Prove that I am Guilty of Rape?

Accepted Answer

In order to prove that you raped another person under Penal Code 261 PC, the prosecutor must prove four facts (otherwise known as "elements" of the crime). These are: that you engaged in sexual intercourse with another person (any penetration will suffice, regardless of how slight ), that you were not married to the person at the time (if you were, it would be a separate crime known as "spousal rape"), that the other person "did not consent" to the intercourse, and that you accomplished the act by one of the means listed in Section 1 above.

Question 5

Civil Lawsuits by Rape Victims in California

Accepted Answer

Victims of sexual assault or abuse have the right to seek restitution from or sue their perpetrator for damages in California. Victims (or in some cases, their family members) may: File a lawsuit for money damages in civil court; Apply for payment from the California Victim Compensation Board (“CalVCP”) (for violent crime victims and their families), and/or Apply for restitution from the California criminal court (if the defendant is found or pleads guilty). Victims do not need to choose one approach over the other. They can pursue any or all of these remedies (although if they receive more than one the amounts will usually be offset against the others).

Ley sobre el Abuso Sexual de California Código Penal 261