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California Rape Laws

California considers rape such a severe offense that, in most cases, there's no statute of limitations for the crime. California's rape laws are strict and carry severe penalties. If you're facing rape charges, you should get to know California Penal Code 261. This is the statute dealing with rape, and it outlines the elements of the crime and the penalties.

If someone accused you of rape, your criminal law attorney will need to devise a defense strategy that makes it difficult for the prosecutor to prove your guilt. Here, we'll discuss the crime of rape and how the State of California defines it. We'll also briefly describe the possible defenses to charges of rape or sexual assault.

How Does California Law Define Rape?

Legally, rape happens when someone has sexual intercourse with someone against the victim's will. The crime of rape falls under the broader category of sexual assault. Generally, sexual assault includes related offenses such as groping, fondling, and other unwanted sexual contact.

Under California law, the state could charge a person with rape if they engaged in sexual intercourse in the following scenarios:

  • The defendant used physical force, intimidation, coercion, or threats
  • The victim had a reasonable fear of immediate bodily injury or injury to another person
  • The victim lacked the mental capacity to consent (developmental delay, physical disability, intoxication)
  • The victim was unconscious, asleep, or otherwise unaware that sexual intercourse was taking place
  • The defendant induced sexual intercourse by making a fraudulent representation

Whether the state charges you with rape depends on the nature of the act and the facts of your case. The prosecutor must have enough evidence to prove each element of the crime. If not, the judge must acquit you of the charges.

Rape Cases Involving Minors

Like most other states, California has specific laws dealing with the rape of a minor. In California, the age of consent is 18. Under California Penal Code 261.5, those under 18 can't give consent to sexual intercourse. So, if you have sexual relations with anyone under 18, there is a chance the state may charge you with statutory rape.

The severity of the charge depends on the age of the victim and the age difference between the defendant and the victim. Because minors can't consent to the act of sexual intercourse, there is no requirement for the use of force.

California's statutory rape laws do require penetration. This is why the statute specifically cites sexual intercourse and not other sexual activities. This is different from the definition of rape with adults, where the prosecutor must consider whether the defendant used force, intimidation, or other tactics to convince the victim to have sex.

Defenses to Rape in California

There are three primary defenses to the crime of rape in California. If your criminal defense lawyer can prove the following, the court should acquit you of the charges. Of course, there is no guarantee that this will happen. The facts may prove that you were guilty of another charge, especially if the case involves domestic violence or if the victim suffers great bodily injury.

The three defenses to rape in California include:

  • No sexual intercourse — If you can show that you didn't have intercourse with the victim, the state will not meet its burden for rape. But, the prosecutor may charge you with other crimes, such as sexual battery or sexual assault, if they can show you engaged in unlawful sexual activities with the victim.
  • Consent — You can overcome a charge of rape (and other sex crimes) if you can prove the victim consented to the sexual acts. Consent is never a defense when the victim is a minor, as people younger than 18 can't legally give consent in California.
  • False accusations — Sadly, it's not uncommon for people to falsely accuse a defendant of rape. If you can prove that the alleged victim made up the charges or lied about the lack of consent, the court must acquit you of the rape charges.
  • California Penal Code Section 261 (general definition of non-spousal rape)
  • California Penal Code Section 261.5 (definition of statutory rape)
  • California Penal Code Section 262 (definition of spousal rape)
  • California Penal Code Section 264 (punishments for rape crimes)
Possible penalties

In California, a conviction of rape carries with it a possible sentence in state prison for up to eight years. The potential sentence can increase when:

  • The rape victim is a minor over 14 years of age
  • The victim is a child who is between 9 and 13 years
  • The defendant acted in concert with another person

California’s rape laws also allow for civil penalties when an adult engages in sexual intercourse with a minor. These penalties range anywhere from $2,000 to $25,000.

California state law establishes an alternate punishment for rape when the defendant is less than three years older than the victim. The prosecutor may pursue either a misdemeanor or a felony charge. A conviction carries a term of one to three years in county jail. The state will also consider the defendant's criminal record when deciding which charges it will pursue.


California offers three defenses to rape. These include:

  • No sexual intercourse
  • Consent (as long as the victim isn’t a minor)
  • False accusations

Note: State laws are subject to change through new legislation, higher court rulings, ballot initiatives, and other means. While we strive to provide the most current information, consult an attorney or conduct legal research to verify your state laws.

Contact An Attorney About Your Rape Charges

If you're facing rape charges, it may not seem like you have options. While, technically, the prosecutor must prove beyond a reasonable doubt that you committed the rape, it often seems like the burden of proof is on you.

You should have a solid legal defense to help convince the state to drop or reduce the charges against you. You should seek legal advice immediately after learning that the state has filed charges.

Having an experienced California criminal defense attorney in your corner will help you get the best possible outcome.

Related Resources for California Rape Laws

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