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Penal Code 261

Rape Laws in California

Forcing unwanted sexual intercourse is a crime in California. Under California Penal Code section 261.5 (PC 261.5), it is illegal for anyone to have sex with a person when it is accomplished by means of physical force or any other way that overcomes the free will of the other person involved. This contrasts with a charge of statutory rape, under California Penal Code 261.5, which only focuses on the minor’s age at the time of sex. Learn more about California’s statutory rape laws here.

How Does a Prosecutor

Prove a Rape Case in California?

Rape, under PC 261, can occur with even the slightest act of sexual penetration. Even so, in order to convict a person of rape, there are four elements of proof, that the prosecutor must prove beyond a reasonable doubt. You will be accused of violating Penal Code 261 if:

  1. You had sexual intercourse with a person
  2. You and the other person were not married at the time of the sexual intercourse
  3. The other person did not consent to sexual intercourse, AND
  4. You accomplished intercourse by one of the following:
    1. Force
    2. Fear
    3. Violence
    4. Duress: Implied threat or force that would cause a reasonable person to act out of the norm.
    5. Menace: Threat or act that shows intent to cause injury
    6. Fear or immediate and unlawful bodily injury
    7. Future threats of bodily harm
    8. Threat to retaliate (i.e. kidnap, falsely imprison, inflict extreme pain, death)
    9. Threat of official action (i.e. abuse of authority by public official to incarcerate)
    10. Threat of deportation by an official or who has the authority to do so
    11. Retribution (payback/ revenge)

Note that even if the person was only pretending to be a law enforcement officer, or any other public official, the alleged victim only has to have reasonably believe that the defendant was a public official who could have taken action.

It is also worth noting, that in addition to forcible rape, the offense can also occur when the other person is unable to resist or consent to sexual intercourse due to alcohol or drug intake—otherwise known as date rape.

Consider the example below.

 Lydia goes on a date with Dave and they have a few cocktails.

She invites him over to spend the night with her, but after a few more drinks, Lydia blacks out from her alcohol consumption. The next morning, she wakes up with very little recollection of the night.

Dave cannot assume that Lydia is willing to have sex with him because she invited him over. Without her consent, which she would be unable to give due to alcohol intoxication, sexual intercourse would be rape.

A Closer look at

Penal Code 261 – Rape Laws

How is consent defined?

The consent element is crucial to proving a rape case. In order to give consent, a person must agree to it, freely and voluntarily, AND know the nature of the act. Even if the other person believes there is an implication of consent, an affirmative acknowledgement of consent must happen by both people.

It’s worth noting that evidence of marriage is not enough by itself to constitute consent. Conversely, a rape case can be difficult to prove if the victim does not manifest some evidence of lack of consent or if they are not under circumstances that would make it difficult to consent.

Can a person revoke their consent?

Yes. A person who initially consents to having sexual intercourse can change their mind. The person revoking their consent does not have to physically resist or fight back in order to communicate his or her lack of consent. Under these circumstances a person could be found guilty of rape if:

  1. The other person verbally or physically communicated that he or she no longer wanted to have sex.
  2. A reasonable person would have understood that the words or acts expressed a lack of consent.
  3. You forcibly continued sexual intercourse despite the objection to do so.

Consider the following example:

Peter and Lily have been dating for six months. Peter has been pressuring Katie to have sex with him but she has abstained from doing so.

One night, she decides she’s ready. As they begin to have sex, Katie abruptly decides that wants to stop. She verbally expresses to Peter that she wants to stop, but he does not take her seriously, forcefully pins her down, and continues on.

While Katie initially consented to having sex, she verbally withdrew it. Although she did not physically resist, Peter could still be found guilty of rape, under PC 261.