When is rape committed?

Under Section 261 of the California Penal Code, rape is an act of sexual intercourse where the vagina or anus is penetrated. The victim is not the spouse of the offender. And the victim has not given consent or is incapable of giving consent.

When can a person not be capable of giving consent to sexual intercourse?

A person who is a child under the age of 18 or when a person has a mental disorder, developmental or physical disability, that person cannot give consent to sexual intercourse. The mental disorder or developmental and physical disability must be reasonably known to the offender.

What is “consent” to sexual intercourse?

Under Section 261.6, “consent” is defined to mean positive cooperation or positive attitude in the act of intercourse. It means an exercise of free will, given voluntarily with knowledge of the nature of the act of sexual intercourse.

When a victim suggests, requests or communicates to the defendant to use a condom or other birth control device, and there is no other evidence of consent, the suggestion, request or communication does not constitute consent.

What other circumstances make an act of sexual intercourse an act of rape?

Sexual intercourse is an act of rape in the following cases:

  1. When a person accomplishes sexual intercourse by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury.
  2. When a person is prevented from resisting because the person was intoxicated
  3. When the person is prevented from resisting through the administration of an anesthetic substance, controlled substance.
  4. When the person is unconscious or asleep
  5. When the person was unaware, unknowing, not perceiving or cognizant of the act
  6. When a person is threatened with bodily harm or injury, use of force, violence, danger or retribution
  7. When artifice, pretense or concealment is used with the intent of inducing belief
  8. When a person is threatened with arrest, incarceration or deportation

When is unlawful sexual intercourse punished as a misdemeanor?

Under Section 261.5 of the California Penal Code, an unlawful sexual intercourse is punished as a misdemeanor when:

  1. When the person engaging in sexual intercourse is a minor who is not more than 3 years older or younger than the perpetrator.
  2. When the perpetrator is a minor who is more than 3 years younger than the victim.
  3. When a perpetrator is aged 21 or older but the victim is a minor under 16 years of age.

What is spousal rape?

Under Section 262 of the California Penal Code, there is rape of a spouse when:

  1. Sexual intercourse is accomplished using force, violence, duress, menace or fear of immediate and unlawful bodily injury
  2. When the victim is prevented from resisting because the victim was intoxicated or was knowingly given any anesthetic or controlled substance.
  3. When the victim was unconscious of the nature of the act
  4. When the victim was unconscious or asleep
  5. When the victim was not aware or cognizant of the act
  6. When fraud was used on the victim
  7. When the perpetrator threatened the victim with retaliation, kidnap, imprison, or infliction of extreme pain, serious bodily injury or death.
  8. When the perpetrator threatened to use the authority of a public official to incarcerate, arrest, or deport the victim.

What happens when the perpetrator of the rape accomplished the rape with the aid of other persons?

Under Section 264.1, any perpetrator who accomplishes rape in concert with another, or abets, aids another person shall be punished with imprisonment in state prison for five, seven or nine years.

When the victim is a child under the age of 14, the penalty is imprisonment in state prison for 10, 12 or 14 years.

When the victim is a child over the age of 14 but still under 18, the penalty is imprisonment in state prison for 7, 9 or 11 years.

Can a person be penalized for forcing a person to marry another?

Yes. Under Section 265, a person who takes a woman unlawfully and against her will, using force, menace or duress, and compels her to marry him or to marry another person will be punished.

Can a person be penalized for enticing an unmarried female to work as a prostitute?

Yes. Under Section 266, a person who dupes or entices a woman over the age of 18 to engage in prostitution, or by use of fraud, false pretenses or false representation, aids or assists in duping or enticing a female to have unlawful sexual intercourse with another shall be punished.

What other acts are penalized?

  1. Anyone who threatens another, creates or induces fear in another to consent to sexual intercourse, sexual penetration, oral copulation or sodomy.
  2. Anyone who uses false or fraudulent representation or pretense to cause a victim to engage in sexual intercourse, sexual penetration, oral copulation or sodomy.
  3. Any person wo receives money or anything of value to cause another person to cohabit with another
  4. Any person who pays or receives money or any valuable thing to place another person as a prostitute
  5. A person who pays or receives money or any valuable thing to place another person in custody of another for immoral purposes
  6. Any husband who uses force, intimidation, threats, persuasion or promises a,nd leaves or places his wife in a house of prostitution
  7. Any person who derives support or maintenance from the earnings or proceeds of another person’s prostitution
  8. Any person who receives payment of a loan or derives support or maintenance from keeping a person in prostitution.
  9. Procuring another person to be a prostitute
  10. Devising, scheming, inducing, persuading or encouraging another to become a prostitute
  11. Receives money or payment for procuring another person to be a prostitute
  12. Receiving money or payment for devising, scheming, inducing , persuading or encouraging another to become a prostitute
  13. Any person who intentionally transports, provides, or offers to give transport to a child under the age of 16 for any lewd or lascivious act
  14. Taking a person under 18 years of age from their parents or guardian without their consent for the purpose of prostitution

When is rape punished as aggravated sexual assault?

When rape is committed against a child who is under 14 years of age and the perpetrator is older by 7 years than the victim, the rape, sexual penetration, sodomy, sexual penetration or oral copulation is charged and penalized as an aggravated sexual assault of a child under Section 269 of the California Penal Code.

Are you facing charges of rape or unlawful sexual intercourse? You will need legal assistance and legal representation because these charges are serious. Call and speak with any of the sex crime lawyers at the Ramiro J. Lluis Law Office. They can help.

TOUCH BELOW FOR A FREE CASE REVIEW 24/7