California rape law

Under California rape law, non-consensual sex by at least one participant is illegal. The Penal Code 261 typified as a serious criminal offense and establishes severe sanctions against the perpetrator.


If you have been charged with this crime, the criminal lawyers at Lluis Law in Los Angeles can help you. We have over 40 years of experience handling these types of cases in the California courts.

Call now and we’ll help you clear up doubts as we devise a robust defense strategy to fight for your rights.  

California rape law in detail for 2020

California Penal Code 261 defines rape as a non-consensual sexual relationship between two or more people. It involves the use of force, coercion, or fear by someone who is not the perpetrator’s spouse.

Rape is criminalized as a felony and punishable by up to 8 years in prison in a state prison. The crime is constituted in the following situations: 

  • The victim is unable to consent to sexual intercourse due to a mental disorder or physical disability. Example: Rape of a defenseless mentally ill or disabled person. 
  • Sexual intercourse takes place through the use of force, violence or fear. Example: A man threatens a woman with hurting her parents if she does not agree to have sex with him. 
  • The victim is intoxicated and cannot consent to the relationship. Example: A woman is raped at a party by someone who takes advantage of her drunken state.  
  • The victim is not aware of the act. Example: person raped while drugged or sedated. 
  • The victim was tricked into inducing sex. Either by convincing the victim that they are married or that the relationship had a professional or religious purpose.

Types of rapes in California

A person can be raped in different settings and situations. Some of the most frequent violations that are sued in Los Angeles courts are for: 

Dating

dating rape

People who are raped by boyfriends / girlfriends or friends during a date after being given certain drugs. For example, Rohypnol or GHB , two types of controlled substances frequently used in rape. 

Some people are victims of rapists who use these dangerous substances to perpetrate the crime. These drugs leave the victim unconscious or unable to defend themselves during a robbery as well. 

Sexual rape of a minor (statutory rape)

It consists of having sexual relations with a minor of 18 years. Like all types of rape, it is considered a serious crime. In California this crime is punishable regardless of whether it was with or without the consent of the other person.

The accused may be convicted of lewd acts with a child

Intoxication rape

It occurs when the accused supplies drugs or alcohol to the victim in order to rape her, taking advantage of her condition. In cases of poisoning, it is not worth defending to say that the victim consented to relationships.

A drunk or drugged person, depending on the degree of intoxication, may not be able to discern their actions. By not consciously consenting to the sexual act you could accuse the other person of rape.  

Marital rape

The event takes place between two spouses when one of them does not consent to sexual relations. The accusing spouse sues his partner for forcing her to have sex against her will.

marital rape

People accused of this crime can be prosecuted for other related charges. For example, domestic violence and battery.

Foreign object rape

This crime is also known as forced penetration with a foreign object. Penetrating the anus or vagina with ‘foreign objects’ such as bottles, sex toys, sticks, or fingers is considered rape.  

This crime can be under threat or by intoxication, disability / unconsciousness of the victim to consent to the act. 

Fraud rape

It consists of impersonating another person so that the victim has sexual relations with him / her. For example, convincing the victim to be a film / beauty pageant director into agreeing to have sex. Something that can be very frequent in Los Angeles.

Any type of penetration (light or deep) through the genitals (anus, vagina, penis) is considered a sexual act. There is no need for ejaculation for the sexual act to materialize. 

Nor does the victim need to physically resist rape by fighting in his defense. Lack of consent can be communicated verbally, even after having started the sexual act. 

For example, a woman cheats on her boyfriend with another and in the middle of the sexual relationship she repents. The woman asks the person she is with not to continue because she feels bad. But that person continues and forces her to have relations against her will. That is also rape.

Possible defenses against the crime of rape

Being charged with the crime of rape does not mean that you will be convicted. The criminal defense attorney after studying the case can make a more accurate diagnosis. You can also conceive the type of defense that you consider most appropriate.

Among the most common defenses to challenge these types of charges are:

There was consent

The accused is not guilty of the rape charge because the relationships were consented to by the alleged “victim”. Furthermore, the accused really believed that the other person had consented to the relationship. 

It is a classic example of a woman who regrets having relationships in full intercourse. However, it does not sufficiently communicate the desire to stop and amid the frenzy of the moment the other person continues.

There was no sexual intercourse

For the charge of rape, the sexual relationship between the two parties involved must be proven. It means that although there was contact between them, the sexual relationship was not reached as such (penetration). 

Falsely accused

Not infrequently, cases of false rape allegations come to the courts in Los Angeles. Some people accuse others of rape out of jealousy, revenge, or anger. A good lawyer must demonstrate that his client was wrongly accused.

Also remember that the district attorney has the burden of proof. Beyond all reasonable doubt, you must prove your allegations in order for your rape case to prosper at trial.

Penalties for the crime of rape 

Rape is considered a serious crime in California, therefore it is punishable as such with: 

  • Prison in a state prison of between 3, 6 and 8 years.
  • Felony or 16-year formal probation.

Additionally, a defendant may additionally face:

  • From 3 to 5 years in prison, if the victim suffered major bodily injuries during the crime. 

The prison term increases if: 

  • The victim is a minor under the age of 18 (from 7 to 11 years in prison).
  • The victim is under the age of 14 (from 9 to 13 years in prison).

California violation law also imposes fines ranging from $ 2,000 to $ 25,000 as civil penalties in these cases. Depending on the defendant’s criminal record, the judge may improve the sentence. 

Generally, rape convictions mostly establish the lifetime sex offender registration requirement .

Migratory consequences of the crime of rape

A conviction for rape can have undesirable consequences for legal aliens in the country. California rape law criminalizes rape as a crime of moral depravity (CIMT).

A non-citizen charged with a crime of moral depravity may be deported or marked as inadmissible.

Elimination of conviction for rape

The cleaning of criminal records for a person convicted of rape is possible if he receives probation for a serious crime. However, when the defendant is confined to paying prison time, the removals do not proceed.  

In other words, if the conviction carries a prison sentence, the convicted person will not be eligible for removal for violation. 

However, with the help of a good Los Angeles sex crime attorney, it is possible to explore the options available. Call any of our attorneys and we will be happy to assist you.

How does a rape affect gun rights?

When a person is convicted of violating Penal Code 261, their gun rights are affected.

California law does not allow those convicted of serious crimes to purchase, possess, or carry a weapon.

Is it possible to sue another person for rape?

Under the personal injury law, it is possible to file a sexual assault lawsuit in California.

The compensatory damages available in this regard are the following: 

  • Medical expenses.
  • Psychological therapies.
  • Lost wages.
  • Loss of ability to generate income.
  • Post traumatic syndrome. 
  • Pain and suffering.
  • Permanent disability or disfigurement.
  • Loss of consortium.
  • Punitive damages in certain cases.

Related crimes 

Along with rape there are other related crimes like:  

  • Sexual assault – PC 243.4Touching another person’s intimate part for sexual gratification, excitement, or abuse.
  • Assault with attempted rape – PC 220. It is sanctioned as a misdemeanor. There is no need for physical contact with the victim during the assault. 
  • Attempted rape – PC 663 / 261. It is sanctioned as a misdemeanor. It constitutes a violation even if there has not been a violation, only the intention counts. 
  • Forced oral intercourse – PC 288a. Placing the genitals in the mouth of another person under intoxication, through the use of force or threats.  
  • Statutory rape. Rape of a minor.

What can Lluis Law do for you?

Now you know a lot more about California rape law. If you are charged with the crime of rape, contact one of our attorneys. Although it seems that the options are few, there is always a light in the law to fight for your freedom. 

Every person is innocent until proven otherwise. So call right now, request a free consultation and tell us about your case. We are one of the most successful Los Angeles law firms with over 50 years of combined experience. 

Having quality legal representation is crucial to face a charge as serious as this. We will take you to understand the content of the California Rape Law and the possible defenses for your case. Rest assured that we will protect your rights!