California Rape Attorneys

California Penal Code section 261 prohibits rape, which is defined as sexual intercourse with someone other than a spouse under any of the following circumstances:

1. Where the victim is incapable of giving legal consent because of a mental disorder or developmental disability, and the defendant knew of the victim’s condition or should have known of the victim’s condition; OR

2. Where it is accomplished against the victim’s will by means of force, violence, duress, menace or fear of immediate and unlawful bodily injury on the victim or another person; OR

3. Where the victim is prevented from resisting by an intoxicating or anesthetic substance, or any controlled substance and the defendant knew of the victim’s condition or should have known of the victim’s condition; OR

4. Where the victim was unconscious at the time of the act or unconscious of the nature of the act, and the defendant knew this; OR

5. Where the defendant tricks the victim into believing that the defendant is the victim’s spouse; OR

6. 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 defendant will execute the threat. For this paragraph, “threatening to retaliate” means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death; OR

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 person, and the victim has a reasonable belief that the defendant is a public official. The defendant does not have to actually be a public official.

“Duress” means a direct or implied threat of force, violence, danger or retribution that would coerce a reasonable person to have sex when they ordinarily would not want to. The totality of the circumstances determine whether duress exists, including the age of the victim, and his or her relationship to the defendant.

“Menace” means any threat.

Elements of Rape

In order to convict a defendant of rape, the prosecution must prove each of the following elements beyond a reasonable doubt:

1. The defendant had sexual intercourse with the victim;

2. The defendant and victim were not married at the time of the sexual intercourse;

3. The victim did not consent to the intercourse;

4. The defendant accomplished the intercourse by force / violence / menace / fear / duress / threats (including threats of future harm or official government threats)

Sexual intercourse means any penetration, no matter how slight. There does not have to be any ejaculation for sexual intercourse to occur.

Updates in the Law

Although technically rape requires sexual intercourse, the Legislature has since expanded the definition of rape since the infamous Brock Turner trial, where a judge in Palo Alto sentenced Brock Turner to a mere six months in jail after being convicted for three counts of felony sexual assault. Now, according the Penal Code section 263.1, rape includes all non-consensual sexual assault for the purposes of gravity of the offense and support for the survivors.

What constitutes consent?

The best defense to rape is consent – that is, to show that the victim consented to sex.

Consent must be free and voluntary, and the victim must know the nature of the act.

A victim who initially consents to the act of intercourse may change their mind during the act. If the victim changes her mind during sex, it is rape if

a) The victim communicates to the defendant that she wants to stop;

b) A reasonable person would have understood her communication as a withdrawal of consent; and

c) The defendant forcibly continued the sexual intercourse despite the victim’s objection.

Rape can occur even if the defendant and victim were dating. Rape can occur even if the woman requested that either party uses a birth control device.

If a defendant actually and reasonably believed that the victim consented to sexual intercourse, then this is a complete defense to rape. In order for the jury to be instructed on the defense of consent, there must be substantial evidence of equivocal conduct that would have led a defendant to reasonably and in good faith believe consent existed where it did not.

Sentencing for Rape

Rape is a serious crime. It is always a felony and is considered a strike offense under California’s Three Strikes Law. The maximum punishment for rape is eight years state prison. If the victim was a minor that was at least 14 years old, the maximum punishment for rape is eleven years state prison. If the victim was a minor that was under 14 years of age, the maximum punishment for rape is thirteen years state prison. In addition to prison time, a defendant must register as a lifetime sex offender pursuant to Penal Code section 290.

Other Consequences

Not only can a rape conviction lead to criminal penalties and lifetime registration as a sex offender, but it can also have drastic employment, licensing and immigration consequences. Rape is considered a crime of moral turpitude. Having a rape conviction can prevent a person from finding a job or lead to a person being fired from their current job. Furthermore, many professions that require licensing from a state board, such as doctors, pharmacists, nurses, lawyers, accountants, contractors, teachers, real estate agents and stock brokers, all require background checks. A professional who has a rape conviction on their record risks losing their professional license, or never acquiring it in the first place. In addition to registering as a sex offender for life, the most severe impact of a rape conviction involves immigration consequences. Non-citizens who are permanent residents, with a green card, or temporary visitors, with a student visa or work visa, can be denied admission or naturalization or even deported, with a rape conviction on their record.

The Right Lawyers

Choosing the right criminal defense lawyer will be the most important decision someone can make when facing criminal rape charges. Many people who face rape charges are good people who made a mistake or exercised poor judgment. There are also some people who have been wrongfully accused of rape, based on a misunderstanding or false evidence. You need an attorney who will listen to your side of the story carefully, who will evaluate the evidence thoroughly, who will negotiate with the judge and the District Attorney’s office skillfully, and who will fight in trial aggressively. You need the Law Offices of Fred Thiagarajah.

All of our attorneys have either worked at the District Attorney’s Office or the Public Defender’s Office. Whether it’s negotiation or trial, our attorneys have the training and experience to get the best results for our clients on their criminal cases and their immigration consequences. Our attorneys have worked in the Sexual Assault unit of the District Attorney’s Office and use their specialized knowledge of sex crimes to defend our clients, including those accused of rape. For an example of our work, please see our case results and read our client testimonials. With offices in Newport Beach, Long Beach, Murrieta, Riverside and Rancho Cucamonga, our team of attorneys have the right criminal defense experience in Orange, Los Angeles, Riverside and San Bernardino Counties.