CA Penal Code 261: Rape

California Penal Code Section 261 is part of California’s sex crime legal scheme and leads off the chapter that criminalizes rape, abduction, the carnal abuse of children, and criminal “seduction.” Rape is one of the most serious felony offenses under California law and carries severe penalties upon conviction.

Section 261 concerns non-spousal rape, which is sexual intercourse accomplished through one of a variety of circumstances, including threat, force, or fraud, that renders the act non-consensual. Rape under section 261 requires that the victim and perpetrator are not married, although rape of a spouse is a separate crime under PC 262 that carries the same elements and penalties as non-spousal rape. Continue reading for details on the law and its application, and contact experienced Rancho Cucamonga criminal defense attorney John D. Lueck if you’ve been arrested for rape in San Bernardino or Los Angeles County.

Elements of PC 261

In order to convict a defendant for rape under PC 261, the government must prove each of these elements beyond a reasonable doubt:

  1. The defendant and a victim had sexual intercourse;
  2. The defendant and victim were not married;
  3. The victim did not consent; and
  4. The act was committed under one of the following circumstances:
  • The victim was incapable of giving consent due to mental or physical disability;
  • The defendant forced the act using violence or threat of injury to the victim or someone else, or by threatening to retaliate in the future;
  • The victim was prevented from resisting due to being drugged;
  • The victim was unconscious or asleep;
  • The victim was defrauded into committing the act; or
  • The defendant forced the act by threatening to use authority as a public official, such as a police officer, to arrest, incarcerate, or deport someone.

Sexual intercourse means any penetration, no matter how slight, of a vagina or other genitalia with a penis.

Consent and Withdrawn Consent

In order to consent, a person must freely and voluntarily agree, knowing the nature of the act. A person who initially consented may change their mind before or during the act. If a victim changes their mind, the act becomes non-consensual if the victim communicated that they objected to the act using words or acts that a reasonable person would interpret as showing a lack of consent, and the defendant forcibly continued performing intercourse over the victim’s objection.

Consent cannot legally be given if the victim was too intoxicated to give consent, was unconscious or asleep, or was unable to consent due to a physical or mental incapacity of which the defendant was aware. If a defendant actually and reasonably believed that consent was given, they are not guilty of rape. Consent and the subjective beliefs of each party involved are very tricky topics that require skilled attorneys to navigate in a criminal proceeding.

Punishment for Violating PC 261

Rape is a felony that carries a punishment of up to eight years in prison. Additional penalties apply if the victim was seriously injured (three to five years added); if the defendant is a repeat offender; and if the victim was a minor (up to 11 years imprisonment). If the victim was under 14 years old, then the possible sentence increases to 13 years. A rape conviction also carries mandatory sex offender registration for life.

The Law Offices of John D. Lueck is a trusted Rancho Cucamonga criminal defense law firm with more than 42 years of service to clients in San Bernardino and Los Angeles counties. These cases are highly sensitive and require experienced representation to ensure your rights are protected. If you or someone you know has been arrested for a crime, contact Rancho Cucamonga criminal defense lawyer John D. Lueck for a free consultation.


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