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What Is Rape Under California Law?

Rape is a serious crime that falls under the larger category of sexual assault. This category of sexual assault includes various offenses such as groping or sexual contact that is not consensual. California law, under Penal Code 261, explicitly criminalizes sexual intercourse that has occurred without the consent of at least one of the individuals involved. This is otherwise known as rape.

Consent is the fundamental concept at the core of the crime of rape. It is officially defined as an agreement that is voluntary to engage in sexual intercourse. If the agreement is not voluntary, then California law officially defines it as “nonconsensual”.

The common perception is that rape only occurs when the defendant uses physical force or violence to make the victim comply with their demands. However, there are other scenarios by which rape can occur, some of which do not include violence or even threats of violence. These scenarios include:

  1. The victim complied with the defendant’s demands due to physical force, verbal threats, and/or various forms of intimidation (such as gestures and/or brandishing a weapon).

  2. The victim complied with said demands out of a sense of fear that they may suffer imminent and serious bodily injury and/or death.

  3. There was no capacity or ability to give consent by the victim. This occurs in situations where the victim suffers from a developmental disability (being mentally challenged), a physical disability (being unable to speak or communicate), and/or being too intoxicated.

  4. The victim was unconscious, sleeping, or in any way not aware that the sexual activity was taking place.

  5. The victim gave their consent to sexual intercourse due to a fraudulent representation by the defendant. This is also known as “rape by deception”.

  6. The victim was too young to give consent. This is formally delineated in California law as the “age of consent” and refers to the age at which a person has the mental faculties and capacity to voluntarily agree to sexual intercourse. The age of consent in California is eighteen (18) years old. Cases involving this scenario are referred to as “statutory rape” and are less serious offenses than other types of rape.

In other words, rape is sexual intercourse that is not consensual and has been achieved by the means of force, threat, and/or fraud. These three fundamental means are alternately termed “rape by force”, “rape by threat”, and “rape by fraud”. They are the basic elements of the crime of rape and they all fall under California Penal Code 261 PC.

Force is defined under the California rape law as violence, pressure, or power exerted on a person. Threats are defined under the California rape law as statements that are conditional on the compliance of the victim or they will suffer some form of retaliation. Fraud is defined under California rape laws as the willful concealment of a fact or knowingly distorting the truth to secure compliance of a victim acting against their own best interests.

Furthermore, rape is a type of sexual assault. It is specifically sexual intercourse, which is defined by the criminal courts of California as any act of penetration, no matter how small, short, or slight, that is sexual in nature. Even if the victim is sexually penetrated by a foreign object, then the charges pursued would still be rape. Nonconsensual sexual activity that does not include penetration is also a crime; however it would fall under the broader category of sexual assault. In these cases the District Attorney (otherwise referred to as the DA) would pursue all related charges.

Consent and the Crime of Rape

Furthermore, consent, or the lack thereof, is the critical question at the core of any rape allegation. All parties must fully consent to sexual intercourse to ensure that it is a lawful activity and does not meet the legal requirements for a rape charge. Consent to sexual activity is not assumed, meaning that if the victim is unable to communicate that they consent than it cannot be assumed that they wish to engage in sexual intercourse.

There are two basic types: verbal and nonverbal. Verbal consent is explicitly stated and is generally the safest form of consent to ensure that the sexual intercourse is not rape. Non-verbal consent is implied, and therefore more ambiguous, and may include means of communication such as gestures or body language. It is much more difficult and risky to ensure consensual sexual intercourse if the consent being given is exclusively or even mostly non-verbal.

Additionally, consent has to be a continuous state of being throughout the sexual encounter. One party may begin intercourse having given their explicit consent only to rescind it at a later point in time. If the defendant continues to have sexual intercourse with the victim after they have rescinded their consent, then that formerly consensual encounter has now become the rape (and therefore a crime). In other words, each party has the right to change their mind at any point in time and all other parties are legally required to respect that fact.

Charges Related to Rape

Rape is most commonly committed by someone the victim knows. There is a common misconception that strangers are most likely to rape the victim, but this is demonstrably false. There are certain instances where this is the case, as in cases where the victim has been date raped. However, it is usually someone who is known to and/or intimate with the victim. This means that the crime of rape is frequently a crime of domestic violence. California policy is to take crimes of domestic violence very seriously and various district attorneys will always prosecute them to the full extent of the law.

Additionally, most police departments and DA’s have dedicated sex crimes divisions to investigate and prosecute sexual assault and rape. Furthermore, there are various specific types of rape and related charges that may be included in the charges that the DA will pursue. These include spousal rape (California Penal Code 262 PC), statutory rape (California Penal Code 261.5 PC), oral copulation by force (California Penal Code 266(c) PC), and forcible penetration with a foreign object (California Penal Code 289 PC).

The Punishments and Penalties for the Crime of Rape

The broad category of sexual assault encompasses various crimes and offenses that range in severity. Most are felonies, though there are some that are prosecuted as misdemeanors. However, the crime of rape is a felony and is usually also treated as a violent offense. The one exception is when statutory rape has been committed and the difference in age between the defendant and victim is three (3) years or less, than that particular charge is a “wobbler” and the district attorney (DA) may pursue either misdemeanor or felony charges.

California recently passed a new law (Assembly Bill 2888) that implements mandatory minimum sentencing in rape convictions. This is due to the intense political fallout from the lenient sentencing of Brock Turner at Stanford University several years ago. The presiding judge sentenced him to only six (6) months in jail, of which he served only three (3) due to good behavior. With the new laws in place, the judge would now be unable to give a sentence any shorter than three (3) years. Furthermore, AB 2888 and another law known as Assembly Bill 701 (AB 701) redefined rape under California Penal Code 263.1 as encompassing all forms of nonconsensual sexual activity.

As a result of AB 2888 and AB 701, judges no longer have the leeway to grant short sentences or probation at their discretion or as a result of recommendations from the district attorney and/or the probation department. Furthermore, the new laws also state that judges cannot grant suspended sentences or probation for convictions of rape, sodomy, oral copulation, and/or penetration with a foreign object.

Due to these new minimum sentences, California criminal laws state that a conviction of rape will result in incarceration in a state correctional facility (prison) for three (3), six (6), or eight (8) years. Under no circumstances can the minimum sentence be any less than three (3) years.

Furthermore, this sentence can potentially be increased if the victim is a minor, defined under California law as someone under the age of eighteen (18), who is over fourteen (14) years old. This specific offense will result in a sentence of seven (7) to eleven (11) years. Additionally, if the victim is a child who is under the age of fourteen (14), then the sentence will be nine (9) to thirteen (13) years.

California law also determines that fines ranging anywhere from two thousand dollars ($2,000) to twenty-five thousand dollars ($25,000) may be applied in a rape conviction.

If convicted of rape, then the defendant must register as a sex offender under California Penal Code 290 PC. This is also referred to as the Sex Offender Registration Act. It is in many ways the most devastating penalty a defendant may face. California Senate Bill 384 (SB 384) specifies a system consisting of three tiers. Defendants convicted of the lowest level sexual offenses fall under tier one and must undergo sex offender registration for a minimum of ten (10) years. The second tier requires registration for a minimum of twenty (20) years and includes convictions for mid-level offenses. The third tier is the most severe and includes most forms of assaultive or violent rape. It requires lifetime registration as a sex offender.

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What Does the Prosecution Have to Prove for a Rape Conviction?

There are several crucial elements must be proven beyond a reasonable doubt by the prosecution to secure a rape conviction under Penal Code 261. In other words, all the following must be proven by the prosecution in a court of law:

  1. The defendant had sexual intercourse and/or sexual contact with the victim.

  2. At the time of the alleged rape, the defendant and victim were not married (this would be a separate charge of spousal rape under Penal Code 262 PC).

  3. The sexual intercourse and/or sexual activity was nonconsensual; in other words, the victim did not consent.

  4. The defendant gained the compliance of the victim by using force, threats, and/or fraud to have sexual intercourse and/or sexual contact.

The prosecution will focus heavily on the concept of consent and the fact that the victim did not give it. Most likely they will argue that the defendant should have been more vigilant to ensure that the victim was giving their explicit, verbal consent and that the defendant either ignored or actively suppressed the victim’s ability to do so.

There is a concept in American law known as the “burden of proof”. This is defined as the obligation by some party to prove their assertions or statements. In American jurisprudence, the burden of proof lies with the prosecution or the office of the district attorney. This means that it is their job to prove what they are claiming (that the defendant committed rape, for example).

It appears that the burden of proof in a rape case is substantial; in other words, it seems like the DA has an awful lot to prove in order to secure the rape conviction. However, a rape conviction can happen based entirely on the alleged victim’s testimony. The intimate nature of sex crimes means that there are usually only two testimonies: the defendant’s and the victim’s. This also means that most rape and sexual assault cases specifically come down to the defendant’s word against the victim’s. If the jury finds the victim to be a credible witness and believes their testimony beyond a reasonable doubt, then the defendant can be convicted. The DA does not have to provide medical proof (as in from a rape kit) or the eyewitness testimony of anyone else. That means that a rape trial can be incredibly treacherous for the defendant and requires the expertise of a crack defense team.

Possible Legal Defenses to a Charge of Rape

A rape case can be very difficult to fight. There are, however, various strategies that an experienced defense lawyer can use to prove the defendant’s innocence and help clear their name. The nature of rape and sexual assault crimes is that they are inherently intimate in nature. They almost always occur in a scenario where there are only two people present: the defendant and the alleged victim. Furthermore, alcohol and other intoxicants are frequently imbibed in these situations. It is exceedingly easy to question the testimony of an alleged victim who was drinking or using intoxicants on the night in question. The lawyer can question their memories, their recall of specific events, and whether sexual intercourse and/or contact even took place.

Another common defense to a rape charge is the concept of consent. As state previously, consent is the single most important and overriding concept in any scenario involving a rape or sexual assault charge. If the defense can prove that the intercourse happened consensually, for example the alleged victim gave implicit consent, then the jury cannot find the defendant guilty beyond a reasonable doubt. The burden of proof lies with the prosecution, and they have to prove the assertion that the alleged victim did not give consent. This can become a controversial defense, however, as using this argument may bring up the alleged victim’s sexual history. In cases where the alleged victim is a minor or is otherwise lacking the capacity to give consent, such as a child or mentally impaired individual, then this defense is not feasible.

Unfortunately, rape is a crime that has instances of false accusations. The defense may argue that the alleged victim is falsely accusing the defendant for any number of reasons. Because a rape accusation has devastating consequences on a defendant’s life, the defense may argue that the alleged victim had sufficient motive to make false allegation due to some personal vendetta and/or malicious intent.

The defense may also argue that the defendant honestly and reasonably believed that consent was given. There are forms of consent that are implicit and non-verbal, such as body language or facial expressions. The defense may also argue that the physical contact that took place did not include actual intercourse or was not sexual in nature. It could also be argued that there is insufficient evidence in the absence of any forensic examination and/or a rape kit. Most crimes require some degree of physical evidence and the defense can argue that a rape conviction should not be any different. Finally, the defense may also argue that the defendant is the victim of mistaken identity.