Rape is defined in PC 261. It includes, of course, forcible sexual intercourse, but also covers additional circumstances. The following are the various ways in which you can be charged with rape. They include sexual intercourse (any sexual penetration, however slight):

• By force, violence, or threats, including threats of bodily injury to another.
• If the alleged victim (other than the spouse of the other person) is incapable of giving legal consent due to a mental or physical disability or disorder, and this fact is known to the person committing the act.
• If the alleged victim is unable to resist due to an intoxicating or controlled substance, and this fact is known to the person committing the act.
• If the alleged victim is unconscious of the nature of the act, and this fact is known to the person committing the act. This includes not only lack of physical consciousness, but also where the alleged victim is asleep, unaware that the act was occurring, or is deceived about the nature or purpose of the act.
• If submission to the act is based upon the belief that the perpetrator was someone known to the victim, as the result of fraud or concealment by the accused.
• If the act is achieved by the threat of retaliation (infliction of bodily injury, among other threats) against the victim or any other person, and such retaliation is reasonably possible.
• If the act is achieved by threatening to use the power of a public official to have the victim or another person arrested, incarcerated, or deported, and the victim has a reasonable belief (whether or not it is true) that the perpetrator is a public official.

Note that recent changes to the law have effectively eliminated any bar to prosecuting a person for spousal rape.

Finally, the statutory definition of rape in California does not include what is commonly known as “statutory rape,” that is, (non-forcible) intercourse with a minor. That offense is known as “unlawful sexual intercourse,” and is covered in PC 261.5.

Rape is a felony and is generally punishable by up to 8 years in prison. The potential term is higher where the victim is a minor, or where the victim suffers serious injury,

There are a number of possible defenses to a charge of rape, and the applicability of those defenses will depend, of course, on the particular facts of the case. The following are some of the potential defenses if you are arrested on a rape charge:

• While in certain cases the law provides that a person may not give legal consent to sexual intercourse (e.g., those with certain mental disabilities), lack of consent is essential to a rape prosecution. False allegations of rape do occur, and if the court or the jury finds that valid consent was given, there was no rape. In addition, if you reasonably believed there was consent – for example, the victim changes his or her mind but fails to communicate that fact to you – it can be a defense to a rape charge.
• No Sexual Intercourse. Sexual intercourse requires penetration, and the lack of penetration is a defense to a rape charge.
• False Statements. As noted above, false allegations of rape do occur. If you are falsely accused, either because of mistaken identity, intentionally false statements, or otherwise, this may provide a valid and successful defense to a rape charge.

These are just a few examples of defenses that may apply if you are accused of rape.

Rape is obviously a serious offense with profound consequences if you are convicted. In addition to years in prison and fines, you will, if convicted, be subject to lifetime registration as a sex offender.

Do not leave your future to chance. Speak to an experienced criminal defense lawyer today. Contact our office for a free consultation at (619) 577-0868.