Rape: California Penal Code section 261

Rape under California Penal Code section 261 (PC 261) is one of the most serious criminal charges a defendant can face. While rape is typically thought of as being a forcible and violent, heinous act, rape charges often result from mistake, jealousy or anger, or a scenario that did not involve an obvious use of force. The result of this truth is that a rape charge is very complex, but also provides many ways in which to defend against it.

The skilled attorneys at McDowell Defense are very experienced in defending clients who have been charged with rape in California. Whatever the scenario, the attorneys and legal team at McDowell Defense will closely examine a charge of rape. They will go through all of the evidence in great detail, investigate all of the facts, and develop the strongest defense available. Often times, the evidence will not support a rape charge, and it may be possible to get the case dismissed before formal charges even get filed.

If you or a loved one have been charged with rape in California under PC 261, we invite you to call us at McDowell Defense and schedule a free consultation with one of our attorneys at 213-401-2322.

The Innocent Get Charged
All too often innocent people get accused of, and charged with, rape in California. Sometimes this is the result of a mistake of fact. For instance, the accused might have reasonably believed the “victim” consented to the sexual intercourse. Other times, this may result from jealousy, anger, or a desire for revenge where the “victim” makes a false accusation. There are also times when there may be an issue of mistaken identity; when the alleged victim identifies the wrong person.

Rape: A Very Complex Charge
Under PC 261, rape is defined as an individual engaging in sexual intercourse with another person, under certain circumstances, against that person’s will or without that person’s consent.

The part that makes the charge complex are the circumstances the sexual intercourse must occur for it to be rape. The circumstances that must be present under PC 261 include any of the following:

“Victim” Was Incapable of Giving Legal Consent
This incapability of giving legal consent must be because of a mental disorder or physical disability that is known or reasonably should be known to the person committing the act. The prosecutor must prove that a mental disorder or disability did, in fact, render the alleged victim incapable of giving consent.

The Act Was Against a Person’s Will by Means of:



Duress (Direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act that otherwise would not have been performed, or agree to an act s/he would not otherwise have submitted)

Menace (Threat, declaration, or act showing intention to inflict injury upon another)

Fear (Must be actual and reasonable fear of bodily harm. If unreasonable, the accused must have known of the fear and taken advantage of it.)

“Victim” is Prevented from Resisting by Intoxicating or Anesthetic Substance or Controlled Substance

This condition must be known, or reasonably should have been known, by the accused. This intoxication may result from drugs or alcohol.

“Victim” is “unconscious of the nature of the act”

This makes the alleged victim incapable of resisting because of any of the following:

“Victim” Unconscious or Asleep

“Victim” Unaware the Act Occurred

Fraud Caused “Victim” to be Unaware of Essential Characteristics of the Act

This is caused by fraud of the perpetrator. This may be that the perpetrator fraudulently convinced the alleged victim that they were married.

Fraudulent Representation by the Perpetrator

This is a fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose.

“Victim” Believed Perpetrator Was Someone Else S/he Knew

The perpetrator must induce this belief by an artifice, pretense, or concealment with the intent to induce the belief.

Threat of Retaliation

In this scenario, the intercourse is accomplished against the alleged victim’s will by threatening to kidnap, falsely imprison, or inflict extreme pain, serious bodily injury, or death on the alleged victim or any other person. There must be a reasonable possibility that the perpetrator will execute the threat.

Threat of Authority

This is a threat to use the authority of a public official to incarcerate, arrest, or deport the victim or another. The alleged victim must have a reasonable belief that the perpetrator is a public official. The perpetrator, however, does not have to actually be a public official.

Proving A Defendant is Guilty of Rape
In order to convict a defendant of rape under PC 261, the prosecution must prove beyond a reasonable doubt all of the following:
The defendant engaged in sexual intercourse with another person.
The defendant was not married to the other person. (If married, the charge would be for spousal rape.)
The other person did not consent to the intercourse.
The defendant did not actually and reasonably believe there was consent.
The defendant accomplished the act through one of the means listed above.

Lack of Consent
An important note to remember is that lack of consent also requires that the defendant did not have a reasonable belief the other person did consent to the intercourse. There are many cases in which a person facing rape charges may have reasonably believed the other person consented.
California Penal Code section 261.6 (PC 261.6) defines consent as “positive cooperation in act or attitude pursuant to an exercise of free will.” This means that the other person must act freely and voluntarily and have knowledge of the nature of the act.

Current or Previous Dating or Marital Relationship and Consent
A current or previous dating or marital relationship, in itself, is not sufficient to prove consent.

Evidence the Other Person Requested a Condom or Birth Control Be Used
Evidence that the “victim” suggested, requested, or otherwise communicated that that defendant use a condom or form of birth control, without additional evidence of consent, is not sufficient to prove consent.
If the “victim” did request some form of birth control, however, this fact may be used to show the defendant had a reasonable belief that the other person did consent. If the defendant actually and reasonably believed there was consent, there was no rape.

Withdrawn Consent
There are times when the alleged victim will initially consent to the sexual intercourse, but then change his/her mind and withdraw that consent. If the person communicates to the defendant his/her desire to stop and attempts to stop the act, and the defendant forcibly continues the intercourse, this qualifies as lack of consent, and what began as consensual intercourse becomes rape.

Resistance is not an element of rape—the prosecution does not need to prove the victim resisted. This makes sense because there are instances in which it is impossible for the alleged victim to resist, for instance, if s/he was asleep or intoxicated.

Additionally, people react to an attack in different ways. While some may fight back in resistance, others may become frozen and do nothing. This does not mean the person consented.

Penalties for Rape Under PC 261
Rape under PC 261 is a felony offense. The consequences of a PC 261 rape conviction include any or all of the following:
Formal probation with up to one year in county jail
This is typically only imposed if the rape did not involve an act of force or violence

3, 6, or 9 years in State Prison

Additional Possible Penalties:
Additional 3 to 5 years in State Prison if the alleged victim sustains great bodily injury
Fines up to $10,000
Strike under California’s Three Strikes Law

Penalties if Alleged Victim is a Minor

Under 18
7, 9, or 11 years in State Prison
Under 14
9, 11, or 13 years in State Prison

PC 290 Sex Offender Registration
On top of the above penalties for a PC 261 rape conviction, all California rape convictions require registration as a sex offender under PC 290, except for rape through fraud or by threatening to use the authority of a public official to arrest or deport the alleged victim.

Defenses to a Rape Charge

False Accusation
False accusations often result from jealousy, anger, or a desire for revenge. In fact, studies have shown that close to 10% of all rape allegations are false, while other studies have indicated the number could be close to half.

If the alleged victim of a rape actually consented to the sexual intercourse, there is no rape. Furthermore, if the alleged victim consented but then withdrew the consent, s/he must effectively communicate the withdrawal to the defendant. If there is no communication of the withdrawn consent, there is no rape.

Additionally, if a defendant had an actual and reasonable belief that the other person consented, there is no rape. This is called a “mistake of fact” defense.

Insufficient Evidence
Evidence that helps the prosecution to prove a defendant committed rape include are often taken from a medical examination of the alleged victim. Another way the prosecution may obtain evidence is from witnesses who saw or heard the alleged rape. If the “victim” did not seek medical attention and no witnesses saw or heard the incident, the case will most likely come down to a “he said, she said” situation. This makes it very difficult for the prosecution to prove a rape occurred.

Mistaken Identification
Unless the rape victim knows his/her assailant, it may be difficult for him/her to identify the correct person. Mistaken identification is a common cause for a false charge of rape.

Contact McDowell Defense

We know that it can be troublesome when you need to act quickly to access money. But often, obtaining valuable information on your case will depend on when you hire your attorney. Again, the old cliché “the sooner the better,” fits, as you don’t want to lose valuable witnesses, video, or other evidence which can be lost or destroyed quickly and easily. Call McDowell Defense today to discuss the best financial arrangement possible for your particular situation at 213-401-2322.

McDowell Defense

1055 W 7th St 33rd Floor,

Los Angeles, CA 90017

Phone. 213-401-2322

Email. lonnie@mfalegal.com