PC 261 – Rape

Rape – Table of Contents

• PC 261 Overview
• PC 261 Prosecuting
• PC 261 Defending
• Rape – Hire Us

What is Rape Penal Code 261?

California Rape Penal Code 261 PC, defines rape as the non-consensual sexual intercourse accomplished by means of threats, force, or fraud. This means that you achieved sexual intercourse with another by means of: physical force, violence, fraud, fear of retaliation, fear of bodily harm, or menace and that the victim was too intoxicated, suffered from a mental or physical disability, or was unconscious to consent.

In order to be convicted of rape Penal Code 261 the prosecution must prove the four elements of the crime:

1. That you engaged in sexual intercourse with another person
2. That you were not married to that person
3. That the person did not consent to the sexual intercourse
4. That you accomplished sexual intercourse by threats, force or fraud

Sexual intercourse is broadly defined by the state as any penetration; ejaculation does not need to occur.

Consent is defined by California positive cooperation in an act or attitude as an exercise of free will. Consensual sexual intercourse means that both parties acted freely and voluntarily with knowledge of the true nature of the sexual intercourse act.

In California Rape Penal Code 261 is a felony. If you are convicted you will face:

• If the rape didn’t involve violence or force:
  • Formal probation
  • Up to one year in county jail
• If the rape involved violence or force:
  • Up to eight years in California state prison
  • An additional three to five years if you inflicted great bodily injury upon the victim
  • Up to $10,000 in fines
  • A possible “strike” on your record in accordance to California’s Three Strikes Law
  • Forced to register as sex offender in accordance to CA Penal Code 290

If the victim was a minor under 18 then you will face up to 11 years in state prison. If the victim is a minor under 14 then you will face up to 13 years in a state prison.

Prosecuting – CA Penal Code 261 PC

As previously mentioned, in order to be found guilty of rape Penal Code 261 in California, the prosecution must prove the four elements of the crime:

1.  That you engaged in sexual intercourse with another person
2.  That you were not married to that person
3.  That the person did not consent to the intercourse
4. . That you accomplished intercourse by threats, force or fraud

If the prosecution cannot prove these four elements of the crime then you will not be convicted of rape Penal Code 261. It’s important to note that California rape Penal Code 261, laws pertain to both men and women and these cases are typically emotionally fueled and quite public. Like other sexually related crimes the public likes to see a speedy trial and someone go to prison.

Defending Rape – CA Penal Code 261 PC

There is nothing worse than a person who forcibly performs sexual intercourse without a person’s consent, and those persons guilty of the crime should be punished accordingly. However, it is not uncommon for an accuser to fabricate a story to get someone in trouble with the law or for a person to fall victim of mistaken identity.

There are several strategies that a skilled criminal defense attorney will explore to prove your innocence and have your case dropped or your charges reduced. The first approach your criminal defense attorney will take is to make sure that you are not the victim of a false accusation. There are many examples of jealous ex-girlfriends/boyfriends who fabricate stories out of anger or revenge in order to get somebody in trouble. Luckily through the use of DNA evidence it can be easy to prove your innocence.

The second approach your attorney will take is investigate whether the victim consented to have sexual intercourse. If you and your attorney can prove in court that the victim consented to having sexual intercourse then you cannot be charged with rape Penal Code 261. Or, if you can prove that you thought the victim consented to having sexual intercourse then you cannot be charged with rape Penal Code 261 either. This is known as the mistake of fact legal defense, meaning you actually thought the victim consented so you proceeded to have sexual intercourse and then later the he/she files a rape Penal Code 261 charge against you.

Because the third element of the crime is that the person/victim did not consent to the sexual intercourse, then if you and your attorney can prove that the this element was not satisfied then you will not be convicted.

The next approach your criminal defense attorney will explore is to look at the evidence against you. If there is minimal evidence, meaning there are not any medical records, witnesses, or physical evidence then the prosecution will have a very difficult time proving your guilty. If this is the case then your attorney will contact the prosecution and tell them they have a weak case against you and that the case should be dropped. At this point either a plea bargain or case dismissal will take place.

Similar to other violent crimes, rapes typically take place at night with the criminal dressing in dark clothes and trying not to be seen. Because of the nature of the crime it is not uncommon for mistaken identification to be the reason for your charges. If you are the victim of mistaken identification then your criminal defense attorney will prove that the prosecution is charging the wrong person.

If you or one of your loved ones is facing a rape Penal Code 261 charge then it’s imperative that you discuss your case with a skilled criminal defense attorney immediately. Yuliya Kelmansky is an Expert in Criminal Law and has experience defending a wide variety of crimes, including rape.

Related Articles

• Rape Shield Laws
• Date Rape Laws
• What Crimes are Deportable Offenses?

We Want to Help

If you or a loved one is being charged with Rape Penal Code 261, we invite you to contact us immediately for a free case review. Schedule an appointment to meet with us in person, or feel free to submit an evaluation online and we will get in contact with you ASAP. We can provide a free consultation in our office located in Los Angeles, or by phone. Our experienced and assiduous Los Angeles Criminal Defense Attorneys will be sure to fight until the end to reduce or drop your charges completely.

Call Us for a FREE Case Review: 213-932-8922