By Christie Nicholson, J.D. | Legally reviewed by Melissa Bender, Esq. | Last reviewed July 16, 2024
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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.
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:
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.
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.
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:
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| 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:
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. |
Defenses |
California offers three defenses to rape. These include:
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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.
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.
Contact a qualified attorney.
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