If you have been arrested for the crime of Rape, contact experienced criminal defense lawyer Max Gorby at (323) 477-2819.

California Penal Code 261 — Rape defined. (“(a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: (1) Where a person is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act. Notwithstanding the existence of a conservatorship pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving consent. (2) Where it is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another [rape will be charged]. (3) Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused. (4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, “unconscious of the nature of the act” means incapable of resisting because the victim meets one of the following conditions: (A) Was unconscious or asleep. (B) Was not aware, knowing, perceiving, or cognizant that the act occurred. (C) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraud in fact. (D) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose. (5) Where a person submits under the belief that the person committing the act is the victim’s spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief. (6) [Penal Code 261 PC California rape will be charged] Where the act is accomplished against the victim’s will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph, “threatening to retaliate” means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death. (7) Where the act is accomplished against the victim’s will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official. As used in this paragraph, “public official” means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official. (b) As used in this section [for California rape], “duress” means a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in appraising the existence of duress. (c) As used in this section, “menace” means any threat, declaration, or act which shows an intention to inflict an injury upon another.”

CALJIC 10.00. Rape—Spouse and Non-Spouse—Force or Threats. (“In order to prove this crime, each of the following elements must be proved: [1] A male and female engaged in an act of sexual intercourse; [2] The two persons were [not] married to each other at the time of the act of sexual intercourse; [3] The act of intercourse was against the will of the alleged victim; [4] The act was accomplished by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury [to the alleged victim] [or] [to another person].”

CALJIC 1.23.1. “Consent”—Defined in Rape, Sodomy, Unlawful Penetration and Oral Copulation. (“In [prosecutions under] Penal Code section, the word “consent” means positive cooperation in an act or attitude as an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved.”

“[The fact, if established, that the defendant and __________ engaged in a current or previous dating relationship does not by itself constitute consent.] [Evidence that the alleged victim suggested, requested, or otherwise communicated to the perpetrator that a [condom] [or] [other birth control device] be used does not by itself constitute consent.] [A person who initially consents and participates in the act has the right to withdraw that consent. To be effective as a withdrawal of consent, the person must inform the other person by words or conduct that consent no longer exists, and the other person must stop [otherwise a California Penal Code 261 rape may be charged]. The words or conduct must be sufficient to cause a reasonable person to be aware that consent has been withdrawn. If the other person knows or reasonably should know that consent has been withdrawn, forcibly continuing the act despite the objection is against the will and without the consent of the person.]”

Penal Code 261.6 — Consent; current or previous dating or marital relationship…(“A current or previous dating or marital relationship shall not be sufficient to constitute consent where consent is at issue in a prosecution under Section 261, 262, 286, 288a, or 289.”

Penal Code 261.7 — Evidence that victim requested that defendant use condom or other birth control device; consent. (“In prosecutions under [California Penal Code] Section 261 [rape], 262 [spousal rape], 286 [sodomy], 288a [oral copulation by force], or 289 [forced penetration], in which consent is at issue, evidence that the victim suggested, requested, or otherwise communicated to the defendant that the defendant use a condom or other birth control device, without additional evidence of consent, is not sufficient to constitute consent.”

California Penal Code 1203 — Probation. (“(e) Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any of the following persons: (1)…any person who has been convicted of…rape with force or violence.”

California Penal Code 290 — Sex Offender Registration Act. (“(c) The following persons shall be required to register: Any person who, since July 1, 1944, has been or is hereafter convicted in any court in this state or in any federal or military court of a violation of Section 187 committed in the perpetration, or an attempt to perpetrate, rape or any act punishable under Section 286, 288, 288a, or 289, Section 207 or 209 committed with intent to violate Section 261, 286, 288, 288a, or 289, Section 220, except assault to commit mayhem, Section 243.4, paragraph (1), (2), (3), (4), or (6) of subdivision (a) of Section 261…”

California Penal Code 261.5 — Unlawful sexual intercourse with person under 18; age of perpetrator; civil penalties [also known as California statutory rape]. (“(a) Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For the purposes of this section, a “minor” is a person under the age of 18 years and an “adult” is a person who is at least 18 years of age.”

California Penal Code 243.4 — Sexual battery. (“(a) Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery.”

Please contact Attorney Max Gorby at (323) 477-2819 regarding any questions related to California Penal Code section  261 Rape.